The recommendation of the Goods and Services Tax Council (GST Council) made to States provides that States shall levy State Goods and Services Tax on ‘Intra-State supply’ as defined in section 8 of the Integrated Goods and Services Tax Act, 2017. In my personal opinion, such recommendation is not in conformity of scheme of levy of goods and services tax (hereinafter referred to as GST) provided in the Constitution of India (hereinafter referred to as the Constitution). I am also of the view that while recommending Draft Model GST Laws to the Union and the States, GST Council should not have gone beyond the provisions of the Constitution. Provisions of the Constitution are also binding on the GST Council.
In my opinion, Legislature of each State can make GST law, for whole or part of such State, to provide levy and collection of GST on any supply of goods or services or both, with which the State has real territorial connection or nexus, except a supply of goods or services or both, which is determined, in accordance with principles formulated by the Parliament in exercise of its powers under the Constitution, to be a supply of goods or services or both which takes place▬
- in the course of inter-State trade or commerce; or
- outside the State; or
- in the course the import of the goods or services or both into the territory of India; or
- in the course the export of the goods or services or both out of the territory of India.
If we look at goods and services tax related provisions of the Constitution, we find that▬
1. Clause (12A) of Article 366 of the Constitution defines expression “goods and services tax” to mean any tax on supply of goods or services or both, except supply of alcoholic liquor for human consumption.
2. Article 245 of the Constitution, inter-alia, provides that subject to other provisions of the Constitution, Legislature of each State can make law for whole, or any part, of such State.
3. Article 246A of the Constitution gives powers to Parliament and Legislature of each State to make law with respect to goods and services tax to be imposed by the Union or such State subject to the following, namely:-
(a) In respect of any supply of petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas and aviation turbine fuel, provisions of Article 246A shall come into force from such date as may be recommended by the GST Council; and
(b) Parliament shall have exclusive power to make goods and services tax law with respect to supply of goods or services or both where such supply takes place in the course of inter-State trade or commerce.
4. Clause (1) of Article 269A of the Constitution relates to levy and collection of goods and services tax on supply of goods or services or both where such supply takes place in the course of inter-State trade or commerce, and the manner in which the tax collected on such supply shall be apportioned in between the Union and the States. Explanation of clause (1) of the said Article 269A provides that for the purposes referred to in the said clause (1), supply of goods or services or both in the course of import into the territory of India shall be deemed a supply of such goods or services or both in the course of inter-State trade or commerce.
5. Clause (5) of Article 269A provides that Parliament may by law formulate the principles for determining place of supply and when a supply of goods or services or both takes place in the course of inter-State trade or commerce.
6. Clause (1) of Article 286 of the Constitution puts restrictions on GST law making powers of the States, and provides that no law of a State shall impose, or authorize imposition of, tax on supply of goods or services or both where such supply takes place▬
(a) outside the State; or
(b) in the course of the import of the goods or services or both into, or export of the goods or services or both out of, the territory of India.
7. Clauses (1A) and (1B) of Article 270 of the Constitution, inter-alia, refer to two categories of GST Laws, which can be made by the Parliament, viz. (i) GST Laws those may be enacted under clause (1) of Article 246A of the Constitution, and (ii) GST Laws those may be enacted under clause (2) of Article 246A, and Article 269A, of the Constitution. Article 269A of the Constitution, read with clause (2) of Article 246A, provides that Parliament can make law to provide levy and collection of tax, and apportionment of tax collected in between the States and the Union, on following two kinds of supplies of goods or services or both, namely:–
(a) supply of goods or services or both in the course of inter-State trade or commerce; and
(b) supply of goods or services or both in the course of import into the territory of India.
Law making power of the Parliament under clause (1) of Article 246A is subjected to provisions of clause (2) of the said Article, and Article 269A, of the Constitution. Therefore, under clause (1) of Article 246A, of the Constitution, the Parliament can make law to provide levy and collection of tax in respect of all supplies of goods or services or both, except two kinds of supplies of goods or services or both referred to in clauses (a) and (b) of the foregoing paragraph. The Parliament cannot provide the manner for apportionment of tax collected under laws made under clause (1) of Article 246A, in between the Union and the States. For this reason, supplies of goods or services or both, in respect of which law can be enacted by the Parliament under clause (1) of Article 246A of the Constitution, cannot be clubbed with the supplies of goods or services or both in respect of which GST Law can be made by the Parliament in exercise of its powers under clause (2) of Article 246A, and Article 269A, of the Constitution. In view of this inclusion of certain supplies in inter-State supplies, and levy of tax thereon, and apportionment of tax collected thereon is not supported by the Constitution.
8. Clause (2) of Article 286 provides that Parliament may by law make principles for determining when a supply of goods or services or both takes place▬
(a) outside the State; or
(b) in the course of the import of the goods or services or both into, or export of the goods or services or both out of, the territory of India.
9. Conjoint reading of Articles 246A and 269A, and clauses (1A) & (1B) of Article 270, of the Constitution reveals that the Parliament can, under clause (2) of Article 246A and Article 269A of the Constitution, make law in respect of the following supplies of goods or services or both, namely:-
-
- supply of goods or services or both which takes place in the course of inter-State trade or commerce; or
- supply of goods or services or both which takes place in the course the import of the goods or services or both into the territory of India.
Barring these two supplies referred to above, in respect of all other supplies of goods or services or both, the Parliament can make law in exercise of its powers under clause (1) of Article 246A of the Constitution. This difference in law making powers of the Parliament is because of the fact that tax collected, under the law made by the Parliament under clause (2) of Article 246A and Article 269A, is to be apportioned in between the Union and the States in the manner as may be provided by law by the Parliament, whereas tax collected, under laws made by the Parliament under clause (1) of Article 246A of the Constitution, cannot be apportioned in between the Union and the States.
There is no other provision in the Constitution which either gives GST Law making powers to the States, or which puts restrictions on GST Law making powers of the States. Here we find that clause (1) of Article 246A, which gives goods and services tax law making power to Legislatures of the States, does not specify the nature of supply of goods or services or both with respect to which Legislatures can make law. To be specific, provision does not say that Legislatures of States can make law to provide levy and collection of tax on “Intra-State supply” of goods or services or both. The Constitution does not give power to the Parliament to specify the nature of supply(s) of goods or services or both with respect to which State Legislatures can make law.
Article 245 of the Constitution provides that Legislature of a State can make law, for whole or any part of the State, subject to other provisions of the Constitution. We find that clause (1) of Article 246A gives powers to Legislature of a State to make law with respect to goods and services tax to be imposed by such State, subject to the following, namely:-
(a) The Legislature of a State cannot make GST law with respect to any supply of alcoholic liquor for human consumption because definition of expression “goods and services tax”, provided in clause (12A) of Article 366 of the Constitution, does not include tax on supply of alcoholic liquor for human consumption;
(b) The Legislature of a State cannot make GST law with respect to tax on supply of petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas and aviation turbine fuel until Article 246A of the Constitution takes effect in respect of supply of such goods;
(c) The Legislature of a State cannot make GST law with respect to tax on a supply of goods or services or both where such supply takes place in the course of inter-State trade or commerce because clause (2) of Article 246A provides that the Parliament shall have exclusive power to make goods and services tax law where supply of goods or services or both takes place in the course of inter-State trade or commerce; and
(d) Legislature of a State cannot make GST law with respect to supplies of goods, or services or both, mentioned below, because, clause (1) of Article 286 of the Constitution provides that no law of a State shall impose, or authorize imposition of tax on supply of goods or services or both where such supply takes place▬
(i) outside the State; or
(ii) in the course of the import of the goods or services or both into the territory of India; or
(iii) in the course of the export of the goods or services or both out of the territory of India.
In view of the discussion above, we can say that Legislature of a State can make law to provide levy of tax and collection of tax on any supply of goods or services or both, but it cannot make law to provide levy and collection of tax on any, ▬
(a) supply of alcoholic liquor for human consumption;
(b) supply of petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas or aviation turbine fuel until Article 246A of the Constitution takes effect in respect of supply of such goods; and
(c) supply of goods or services or both where such supply takes place▬
(i) outside the State; or
(ii) in the course of inter-State trade or commerce; or
(iii) in the course of the import of the goods or services or both into the territory of India; or
(iv) in the course of the export of the goods or services or both out of the territory of India.
The Constitution also provides that Parliament may by law formulate the principles for determining when a supply of goods or services or both takes place in any of the ways referred to in sub-clauses (i), (ii), (iii) and (iv) of clause (c) of the foregoing paragraph.
Facts stated above show that the Constitution does not provide the nature, name or character of the supply of goods or services or both with respect to which Legislature of a State can make goods and services tax law. The Constitution also does not give power to the Parliament to make law to define or describe the nature of supply of goods or services or both with respect to which Legislatures of States can make goods and services tax law.
Before, One Hundred and First Amendment of the Constitution, similar provisions had existed in respect of levy and collection of taxes on sale or purchase of goods other than news papers. Entry 54 of State List of Seventh Schedule of the Constitution, read with Articles 245 and 246 of the Constitution, had given power to States to make law with respect to taxes on sales or purchases of goods except newspapers, subject to entry 92A of the Union List (List I). Entry 54 of State List and entry 92A of Union List had run as follows:–
54. Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List I.
92A. Taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce.
Article 286 of the Constitution had provided that no law of a State shall impose, or authorize imposition of tax on sale or purchase of goods where such sale or purchase used to take place▬
(i) outside the State; or
(ii) in the course of the import of the goods into the territory of India; or
(iii) in the course of the export of the goods out of the territory of India.
Clause (3) of Article 269 of the Constitution provides that Parliament may by law formulate principles for determining when a sale or purchase, of goods takes place in the course of inter-State trade or commerce. Clause (2) of Article 286 had given power to the Parliament for formulating, by law, principles for determining when a sale or purchase of goods can be said to have taken place in any of the ways mentioned in clauses (i), (ii) and (iii) of the foregoing paragraph.
Before, One Hundred and First Amendment of the Constitution, clauses (1) and (2) of Article 286 had run as follows:–
“Restrictions as to imposition of tax on the sale or purchase of goods.
286. (1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place—
(a) outside the State; or
(b) in the course of the import of the goods into, or export of the goods out of, the territory of India.
(2) Parliament may by law formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in clause (1).”
Legislative history and decisions given by the Honorable Supreme Court in more than one case reveal that purpose of sub-clause (a) of clause (1) of Article 286 of the Constitution is to avoid levy of tax by more than one State on a single transaction of sale or purchase of goods. A sale is a composite transaction involving as it does several ingredients or elements such as agreement to sell, appropriation of goods towards the agreement, transfer of ownership, payment of the price, delivery of the goods and, so forth, which may take place at different places. It is difficult to say that any one of the ingredients mentioned above is more essential to a sale or purchase than the others. Ingredients of transaction of sale may be located in more than one State. On this basis, each such State, within the territory of which one or more ingredients are located, can be said to have territorial connection or nexus with the sale. If there is no restriction on tax levy powers of the States, each State, within whose territory one or more ingredients of a transaction of sale happen to take place, can make law to provide levy of tax on such transaction of sale. Such theory is popularly known as territorial nexus theory of taxation. What is essential is that there should be real territorial nexus (connection) between the taxing State and what the State seeks to tax. Territorial nexus should not be illusory.
While interpreting sale or purchase of goods outside the State [clause (1)(a) of Article 286 of the Constitution], the Constitution Bench of the Honorable Supreme Court, in its judgment in The Tata Iron & Steel Co., Ltd vs. The State of Bihar, Judgment Dated February 19, 1958, has made following observations, namely:-
“The learned Attorney General submits that the theory of nexus cannot be applied to sales tax legislation because such legislation is concerned with a tax on the transaction of sale, that is to say, a completed sale and to break up a sale into its component parts and to take one or more of such parts and to apply the theory to it will, mean that the State will be entitled to impose a tax on one or more of the ingredients or constituent elements of the transaction of sale which by itself or themselves will not amount to a sale. This argument overlooks the fact that the provisions of the sales tax legislation we are considering limit its charging section to “sale”. In order to attract the charging section there must be a completed sale involving the transfer of property in the goods sold from the seller to the buyer. The nexus theory does not impose the tax. It only indicates the circumstance in which a tax imposed by an act of the, Legislature may be enforced in a particular case and unless eventually there is a concluded sale in the sense of passing of the property in the goods no tax liability attaches under the Act. One or more of the several ingredients constituting a sale only furnished the connection between the taxing State and the “sale”. The learned Attorney General also said that one and the same transaction of sale may be taxed by different States by applying the nexus theory and there will be multiple taxation which will obstruct the free flow of inter-State trade. There is no force in this argument, for Art. 286(2) of the Constitution, as it stood originally, was a complete safeguard against such eventuality and after the amendment of that Article and the relevant entries in the Legislative List such contingency will not arise. In our opinion the arguments advanced by the learned Attorney General on this point cannot be accepted.”
In my opinion, it is needless to say that a supply does not have ingredients. In fact, a sale of any goods is also a supply of such goods. A transaction of supply of goods or services or both also has several ingredients and they may take place at different places. In respect of a supply of goods, agreement of supply may be made in the territory of a State ‘A’, payment may be made in the territory of State ‘B’, and all remaining ingredients of the supply may be located in the territory of a third State ‘C’. If there is no restriction on tax levy powers of States, all three States will have territorial nexus with the supply and will be legally competent for making law for imposing tax on such supply of goods or services or both. In the process, single transaction of supply may be taxed thrice. This will result in increased burden of tax on consumers and in some cases, unequal burden of tax on consumers. Such an act will be against the interests of the consumers, and will have adverse impact on economic unity of the country. These were the reasons behind enactment of sub-clause (a) of clause (1) of Article 286 of the Constitution.
Where all ingredients of a supply are found within the territory of only one State, no other State can be said to have territorial nexus with the supply. In such a case, supply remains a supply outside the State for all other States. Where no State has territorial nexus with a supply, supply will be a supply outside the State for all States. Problem arises only where a supply has territorial nexus with more than one State. For such cases, ▬
(i) sub-clause (a) of clause (1) of Article 286 of the Constitution provides that no law of a State shall impose, or authorise imposition of tax on a supply of goods or services or both where such supply takes place outside the State; and
(ii)clause (2) of Article 286 of the Constitution, inter-alia, provides that the Parliament may, by law, formulate the principles for determining when a supply of goods or services or both takes place outside the State.
In view of above observations, a Legislature of a State may make law to provide levy of goods and services tax in respect of “any supply of goods or services or both, with which the State has territorial nexus, except a supply of goods or services or both which is determined, in accordance with principles formulated by law by the Parliament, a supply of goods or services or both, which takes place▬
(i) in the course of inter-State trade or commerce; or
(ii) in the course the import of the goods or services or both into the territory of India; or
(iii) in the course the export of the goods or services or both out of the territory of India; or
(iv) outside the State”
It is noteworthy that all four supplies of goods or services or both referred to in clauses (i) to (iv) above are mutually exclusive.
Process of formulation of principles for determining supply of goods or services or both which takes place outside the State involves declaration of relationship, in between territory of a State and some ingredient of the supply, in absence of which supply is to be treated a supply outside the State. It is noteworthy that Legislatures of States, themselves, under the Constitution have no power to decide such relationship. If they (Legislatures of States) exercise such power, there will be no uniformity among all States. Suppose, there is a supply of some identified goods such that▬
(a) contract of such supply is made at any place located inside the territory of State ‘A”; and
(b) goods to be supplied under the contract at the time of making contract are located inside the territory of State ‘B’; and
(c) all remaining ingredients of the supply are also located inside the territory of State ‘C’.
Unless there is common law for all States for determining supply outside the State, all three States viz. State ‘A’, State ‘B” and State C will have territorial nexus with the supply. Decision taken by one State will not be binding on other States. For this reason clause (2) of Article 286 gives power to the Parliament to formulate principles by law for determining when a supply of goods or services or both takes place outside the State.
Theory of territorial nexus requires that such nexus should be real and not imaginary. For example, if actual place of delivery of goods is located in territorial waters, while applying territorial nexus theory, place of delivery of goods is to be treated in the territorial waters. Fiction cannot be created to shift such place of delivery inside some State, or a Union Territory, including the State, or the Union Territory, from which goods have been supplied. Transactions of supplies of goods, by vendors located in coastal States, from their godowns located in their States, to foreign going ships located in territorial waters, are common. After receiving supply order, vendor delivers goods on the board. In such a transaction, only the State in which godown is located, has territorial nexus with the supply. Such supply of goods is not a supply which takes place in the course of▬
(i) inter-State trade or commerce; or
(ii) import of the goods into the territory of India; or
(iii) in the course of export of the goods out of the territory of India.
If supply referred to in the foregoing paragraph (supply from coastal State to foreign going ship located in territorial waters) is declared to be a supply outside the State, on the basis of location of the place of delivery (supply), which is inside the territorial waters, tax cannot be levied by any State. Although Government of India can levy and collect tax on such supply, yet tax collected on such supply by the Government of India cannot be apportioned lawfully in between the Union and the States.
Another case may be of supply of goods from any place located in territorial waters where such goods are delivered by the supplier at any place located inside a State. Since goods are delivered inside a State, the State acquires territorial nexus with the supply. In such cases, recipient State can levy and collect tax on such supply on Reverse Charge Mechanism basis. However, in absence of recommendation from the GST Council, no law could be enacted by the Parliament under clause (2) of Article 286 of the Constitution. Legislatures of States have enacted State GST Laws on recommendation of the GST Council. Such laws provide levy of tax on intra-State supply of goods or services or both, except goods which have been kept outside the GST. State Laws provide that expressions “intra-State supply of goods” and “intra-State supply of services” shall have meanings as assigned to them in section 8 of the Integrated Goods and Services Tax Act, 2017. The said Act has been enacted by the Parliament. Section 8 of the said Act runs as follows:–
“Intra-State supply.
(1) Subject to the provisions of section 10, supply of goods where the location of the supplier and the place of supply of goods are in the same State or same Union territory shall be treated as intra-State supply:
Provided that the following supply of goods shall not be treated as intra-State supply, namely:—
(i) supply of goods to or by a Special Economic Zone developer or a Special Economic Zone unit;
(ii) goods imported into the territory of India till they cross the customs frontiers of India; or
(iii) supplies made to a tourist referred to in section 15.
(2) Subject to the provisions of section 12, supply of services where the location of the supplier and the place of supply of services are in the same State or same Union territory shall be treated as intra-State supply:
Provided that the intra-State supply of services shall not include supply of services to or by a Special Economic Zone developer or a Special Economic Zone unit.
Explanation 1.—For the purposes of this Act, where a person has,—
(i) an establishment in India and any other establishment outside India;
(ii) an establishment in a State or Union territory and any other establishment outside that State or Union territory; or
(iii) an establishment in a State or Union territory and any other establishment being a business vertical registered within that State or Union territory,
then such establishments shall be treated as establishments of distinct persons.
Explanation 2.—A person carrying on a business through a branch or an agency or a representational office in any territory shall be treated as having an establishment in that territory.”
Here we see that definition of expression “Intra-State supply”, as quoted above, has been enacted without looking into the scope and restrictions on GST Law making powers of the States under the Constitution. Location of supplier of goods has not been defined, and therefore, location of supplier cannot necessarily mean that goods will be supplied by the supplier from where he is located, or from any other location within the same State. Supplies of goods or services made to or by Special Economic Zone developer or Special Economic Zone Unit also includes supplies of goods or services which take place completely within the same State, i.e. all ingredients of the supply are located within the territory of the same State. Such supply cannot be treated a supply of goods or services or both, which takes place outside the State, or in the course of inter-State trade or commerce, or in the course of export, or in the course of import. Where counter sales or supplies of goods are made to a foreign tourist at any place located within a State, all ingredients of supply remain located within the State; they cannot be excluded from intra-State supplies, by creating fiction of treating such supply in the course of inter-State trade or commerce.
Definitions of expressions “intra-State supply of goods” and “intra-State supply of services”, also include supplies of goods, or services made within the territory of a Union Territory. But Legislatures of States cannot make law to provide levy of tax on supplies which take place within Union Territories. Charging section of GST Laws made by the States provides for levy of tax on intra-State supply of goods or services or both. Such provision may be correct for the Union Government, i.e. for the purpose of the Central Goods and Services Tax Act, 2017, which provides levy of tax by the States as well as by the Union Territories.
In the IGST Act, the Parliament has enacted section 8 (Intra-State supply) of the said Act for the purpose of the Union. Supplies which have been excluded from scope of section 8, have been included in section 7(5) of the said Act. The Parliament has enacted the Central Goods and Services Tax Act, 2017 for the purpose of levy and collection of tax on intra-State supplies which take place either within a State or within a Union Territory.
For the aforesaid reasons, definition of “intra-State supply”, provided in section 8 of the IGST Act, is not relevant for the States.
Section 9 of the Integrated Goods and Services Tax Act, 2017 (hereinafter referred to as the IGST Act) runs as follows:–
“Supplies in territorial waters.
9. Notwithstanding anything contained in this Act,—
(a) where the location of the supplier is in the territorial waters, the location of such supplier; or
(b) where the place of supply is in the territorial waters, the place of supply,
shall, for the purposes of this Act, be deemed to be in the coastal State or Union territory where the nearest point of the appropriate baseline is located. “
Provisions of above quoted section 9 of the IGST Act have been given overriding effect over all other provisions of the said Act. Where a supply of any goods is made from a place located in a coastal State to a foreign going ship located at any place in territorial waters, supply cannot be taxed by the Government of India, treating it an inter-State supply because supply does not take place in between two States, or two Union Territories, or in between a State and a Union Territory, or vice-versa. In case of levy of tax by a State, assumed place of supply cannot be used for determining territorial nexus because territorial nexus has to be real. The Parliament can make GST Law in respect of such supply in exercise of its power under clause (1) of Article 246A, but it cannot make law for apportionment, of tax collected on such supply, in between the Union and the States.
Above all, where the Constitution provides a scheme of levy of GST by the States, the GST Council cannot substitute its own different scheme for levy of GST by the States. The Constitution provides that Legislature of a State can make law to provide levy of tax on supply of goods or services or both except on a supply which takes place▬
(i) in the course of inter-State trade or commerce; or
(ii) in the course the import of the goods or services or both into the territory of India; or
(iii) in the course the export of the goods or services or both out of the territory of India; or
(iv) outside the State; or
Inter-State trade or commerce involves movement of goods or services from▬
(i) one State to another; or
(ii) one Union Territory to another; or
(iii) one State to a Union Territory, or vice-versa.
Export supply of goods or services out of the territory of India involves export of goods or services or both from the territory of India to any other country, and import supply of goods or services or both into the territory of India results in import of goods or services or both into the territory of India. Among other supplies, there may be supplies with which no State can be said to have territorial nexus. Let us exclude these four types of supplies from all possible supplies. Remaining supplies may be classified in following two categories, namely:-
(a) supplies of goods or services or both, with which only one State has territorial nexus; and
(b) supplies of goods or services or both, with which two or more States have territorial nexus.
Out of the supplies referred to in clauses (a) and (b) above, purpose of prohibition, provided in sub-clause (a) of clause (1) of Article 286 of the Constitution, is not to take away tax levy powers of all States which could be said to have territorial nexus with the supply. Purpose of the said prohibition is to prohibit all States except one from levy of tax, on single transaction of supply of goods or services or both.
In view of similar provisions under the Constitution, as it had existed before One Hundred and First Amendment of the Constitution, the Parliament, in sections 3, 4 and 5 of the Central Sales Tax Act, 1956, had formulated principles for determining when a sale or purchase of goods takes place▬
(i) in the course of inter-State trade or commerce;
(ii) outside the State;
(iii) in the course of the import of the goods into, or export of the goods out of, the territory of India.
The said provisions may provide a guideline for drafting principles for determining when a supply of goods or services or both takes place▬
(i) in the course of inter-State trade or commerce;
(ii) outside the State;
(iii) in the course of the import of the goods, or services or both into, or export of the goods, or services or both out of, the territory of India.
*****
Disclaimer: Except the quoted versions, interpretations made and all other views expressed here are my personal views and are meant only for academic discussion. Readers are advised to follow the provisions of the law and to seek opinion of their legal advisors before acting upon the views expressed here. I and the publishers of this article disown any liability on account of any loss or damage that may be caused on account of use of views expressed here.
Author Bio
