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JUDICIAL DECISIONS ON INDIRECT TAXES, RECENT ADVANCE RULINGS UNDER GST AND RECENT CHANGES IN GST UNDER UNION BUDGET 2019- March 2019 E-Newsletter

JUDICIAL DECISIONS ON INDIRECT TAXES, RECENT  ADVANCE RULINGS UNDER GST AND RECENT CHANGES  IN GST UNDER UNION BUDGET 2019

CA.P.J.Johney FCA

Statute:  Service Tax & Goods and Services Tax
Decision in favour of: Assessee
Title: Torrent Power Ltd. v. Union Of India 
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Ms. Harsha Devani And Dr. A. P. Thaker JJ.
December 19, 2018.
Citation: [2019] 61 GSTR 454 (Guj)
Bench/Court:  In The Gujarat High Court
Service Tax — Goods And Services Tax — Exemption — “Transmission Or Distribution Of Electricity By Electricity Transmission Or Distribution Utility” — Scope Of Exemption — Includes Ancillary And Related Services — Distribution Licensee Duty Bound To Provide Electric Line And Plant And Meter For Measuring Quantum Of Electricity Supplied — Department Taking View In Years Prior To Introduction Of “Negative List” Regime That Charge In Connection With Transmission And Distribution Of Electricity Not Taxable — No Material To Show How Position Changed With Introduction Of “Negative List” Regime Or Goods And Services Taxes Regime — All Services Related To Transmission And Distribution Of Electricity Naturally Bundled In Ordinary Course Of Business Of Distribution Licensee Required To Be Treated As Provision Of Single Service Of Transmission And Distribution Of Electricity — Not Taxable — Central Goods And Services Tax Act (12 Of 2017), ss.  2(30) , (74) , (90) , 8 — Finance Act (32 Of 1994), SS. 66D(k) , 66F(3) , 83 — Electricity Act, 2003, ss. 2(20) , (22) , 43(2) , 46 — Circular No. 34/8/2018-GST Dated March 1, 2018, Para 4(1) — Notification No. 12/2017 Dated June 28, 2017, Entry 25 — Circular No. 131/13/2010-ST Dated December 7, 2010 — Notification No. 32/2010-Service Tax Dated June 22, 2010 — Notification No. 11/2010-Service Tax Dated February 27, 2010.


Statute: Goods And Services Tax
Decision in favour of: Assessee
Title:  Indusind Media Communications Ltd. And Another
v. Union Of India And Others
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M. S. Sanklecha And Riyaz I. Chagla JJ.                                               October 19, 2018.

Citation: [2019] 61 GSTR 403 (Bom)
Bench/Court: In The Bombay High Court
Goods And Services Tax — Change Of Law — Input Tax Credit — Transfer Of Business — Transfer Of Part Of Business On August 10, 2017 — Transferor Seeking To Carry Forward Its Available Input Tax Credit From Cenvat Regime To GST Regime — To Distribute Input Tax Credit Available Amongst Its Branch Offices/Locations Having Separate Registration Under Act — Distribution Not Reflected On Website Due To Technical Difficulties — Flow Of Unutilised Input Tax Credit From Transferor To Transferee Not Taking Place As Revised Trans-1 Not Reflected To Extent Of Distribution — No Extension Of Time Granted To File Gstr-3b — Input Tax Credit As On July 1, 2017 To Be Availed Of On Or Before October 20, 2018 — Writ Petition — Transferor To Manually File Copy Of Its Revised Trans-1, Itc-01 And Gstr-3b At Mumbai Pending Disposal Of Petition — Transferor Entitled To Take Credit Reduced At Mumbai To Its Locations In Delhi, Gujarat And Karnataka Subject To Satisfaction Of Commissioner Having Jurisdiction Over Those Locations — Central Goods And Services Tax Act (12 Of 2017), ss. 16(4) , 18(3) , 25(4) , 140(8) , Third Proviso — Maharashtra Goods And Services Tax Act (43 Of 2017), ss. 16(4) , 18(3) , 25(4)


Statute: Value Added Tax
Decision in favour of:Assessee
Title:
Aswini Hospital Pvt. Ltd. And Others
v. Intelligence Officer, Squad No. 1, Thrissur And Others 
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    K. Vinod Chandran , A. Muhamed Mustaque And Ashok Menon JJ.
January 18, 2019.

Citation:  [2019] 61 GSTR 492 (Ker [FB])
Bench/Court:   In The Kerala High Court
Value Added Tax — Sale — Definition — Deemed Sale — Medicines Supplied Or Implants Carried Out, Or Consumables Used Or Surgical Tools Exclusively Used In Procedure As Part Of Treatment Of In-Patients In A Hospital Price Whereof Recovered From Patients — No Deemed Sale Of Drugs, Implants And Other Consumables Used In Treatment — Kerala Value Added Tax Act, 2003 (30 Of 2004) — Constitution Of India, Art. 366(29A)(f)

Works Contract — Supply Of Food And Drink — Deemed Sale — Dominant Test — General Principles — Constitution Of India, Art.   366(29A)(f)


Statute: Value Added Tax
Decision in favour of: Department
Title:  Arunachal Roadways
v.  State Of Assam And Others
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Ajit Singh C. J. And Prasanta Kumar Deka J. 
May 8, 2018.
 
Citation:  [2019] 60 GSTR 310 (Gau)
Bench/Court:  In The Gauhati High Court
Value Added Tax — Transportation Of Goods — Consignments From Outside State Of Assam Through Assam To Be Delivered In Meghalaya And Arunachal Pradesh — Non-Submission Of Requisite Transit Passes With Endorsement Of Exit Check Post — Presumption Of Sale In Assam — Assessment Made Owing To Non-Production Of Endorsed Transit Passes — Joint Commissioner Allowing Benefit In Respect Of Consignments To Meghalaya Under Transit Passes Duly Certified To Have Crossed Over To State Of Meghalaya By Prescribed Authority At Exit Check Gate But Dismissing Petitions Regarding Consignment To Arunachal Pradesh — Board Of Revenue In Appeal Holding Certificate Issued By Superintendent Of Taxes And Excise, Likabali Bfc East Siang Dist., Arunachal Pradesh Confirming Movement Of Goods To Arunachal Pradesh Produced By Petitioner Cannot Be Accepted As Sufficient Evidence In Support Of Appellant’s Claim — High Court — Revision — Certificate Not Even Mentioning Registration Number Of Truck And Official Who Issued Certificate Has No Identity — Grounds Shown In Application Seeking Leave To Bring On Record New And Additional Facts Not Satisfactory — Board Justified In Exercising Jurisdiction While Passing Order Rejecting Petitioner’s Claim — Assam Value Added Tax Act, 2003 (8 Of 2005), s. 76


Statute:  Service Tax
Decision in favour of: Department
Title:  M. Venkata Rao Infra Projects Pvt. Ltd.
v. Commissioner Of Central Excise, Goa
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Dr. D. M. Misra (Judicial Member) 
and Sanjiv Srivastava (Technical Member)
September 28, 2018.
 
Citation:  [2019] 61 GSTR 227 (CESTAT-Mum)
Bench/Court:  Before The Customs, Excise And Service Tax Appellate Tribunal — Mumbai Bench
Service Tax — Voluntary Compliance Encouragement Scheme, 2013 — Condition Precedent For Grant Of Benefit — Declaration To Be Filed And Assessee Required To Deposit 50 Per Cent. Of Admitted Tax Liability By December 31, 2013 — Assessee Filing Challans Of Payment Of Tax In Respect Of Another Unit — Payments Made Against Vishakhapatnam Unit Could Not Be Considered As Payment Made For Goa Unit — Assessee Evading Payment Of Tax From 2011 Onwards Wilfully — Assessee Failing To Establish Bona Fides By Filing Challans For Remaining Amount In Correct Manner — Rejection Of Declaration Under Scheme — No Interference — Voluntary Compliance Encouragement Scheme, 2013.

Service Tax — Penalty — Evasion Of Tax — Assessee Aware That Service Tax To Be Paid Every Month Starting From April, 2011 But Not Paying Tax Or Declaring Tax Liability By Filing Monthly Tax Returns — Assessee Had Knowingly And Willingly Suppressed Value Of Taxable Service And Tax Due With Intention To Evade Payment Of Tax — Assessee Making Deposits Towards Tax Only When Investigations Started By Central Excise Intelligence — Assessee Liable To Penalty Action — Finance Act (32 Of 1994), S. 78

Service Tax — Penalty — Failure To File ST-3 Returns — Mens Rea Need Not Be Established — Finance Act (32 Of 1994), s. 77
Service Tax — Penalty — Failure To File ST-3 Returns — Commissioner Right In Imposing Penalty — Finance Act (32 Of 1994), s. 77


Statute:  Value Added Tax
Decision in favour of: Assessee
Title: Tarulata Trading Pvt. Ltd.
v. State Of Gujarat
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Akil Kureshi And B. N. Karia JJ.
 August 30, 2018. 

Citation:  [2019] 61 GSTR 372 (Guj)
Bench/Court:  In The Gujarat High Court
Value Added Tax — Registration Certificate — Retrospective Cancellation Of — Certain Material Collected During Spot Visit At Premises Of Petitioner Giving Prima Facie Impression That Petitioner Engaged In Bogus Billing Activities — Notice For Assessment And Cancellation Of Registration From Inception Issued By Deputy Commissioner And Order Passed Cancelling Registration With Retrospective Effect — Tribunal Rejecting Petitioners Request For Stay Of Order Pending Revision — Writ Petition — On Facts Cancellation Of Registration Stayed To Extent Of Retrospective Effect Pending Revision Petition Before Tribunal — Gujarat Value Added Tax Act, 2003 (1 Of 2005) — Central Sales Tax Act (74 Of 1956)


Statute:  Customs Duty
Decision in favour of: Assessee
Title:  Jindal Dyechem Industries (P) Ltd.
v. Union Of India And Others  
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S. Ravindra Bhat And A. K. Chawla JJ.
April 16, 2018.

Citation:  [2019] 61 GSTR 407 (Del)
Bench/Court:   In The Delhi High Court
Customs Duty — Exemption — Imports Made After Introduction Of Goods And Services Tax Regime — Assessee Holding Advance Licence Issued On July 17, 2017 — Exemption Notifications Issued On June 29, 2017 Not In Existence On That Date — Exemption Of Integrated Goods And Services Tax Not In Force On That Date — Customs Notification Of June 29, 2017 Amended Only On October 13, 2017 — Benefit Of Exemption Existing At That Point Of Time — Authorities To Verify Whether Assessee In Fact Fulfilled Export Obligations Pursuant To Advance Licence — If It Did, No Further Action Needed — If Not, Appropriate And Necessary Assessment May Be Made.


Statute:  Sales Tax
Decision in favour of: Assessee
Title: Sri Shanmuga Polymers (P) Ltd.
v. Assistant Commissioner (CT), Commercial Tax Officer (FAC), Pudukottai 1, Assessment Circle, Pudukottai
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M. Sathyanarayanan And Mrs. R. Hemalatha JJ.
February 21, 2018.

Citation:  [2019] 61 GSTR 260 (Mad)
Bench/Court:   In The Madras High Court — Madurai Bench
Sales Tax — Additional Sales Tax — Dealer Purchasing Goods Against Declaration For Manufacture Of Other Goods — Reselling Part Of Goods So Purchased — Tax At Full Rate Levied On Turnover Of Goods Resold — Turnover Of Such Goods Not To Be Included In Total Turnover For Determining Threshold Limit For Levy Of Additional Sales Tax — Tamil Nadu General Sales Tax Act (1 Of 1959), s. 3(3) — Tamil Nadu Additional Sales Tax Act (14 Of 1970)


Statute: Goods And Services Tax
Decision in favour of:Department
Title: Vedanta Limited  v. Union Of India And Others 
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Mrs. J. Nisha Banu J.                                                                 October 29, 2018.

Citation: [2019] 61 GSTR 413 (Mad)
Bench/Court: In The Madras High Court — Madurai Bench
Goods And Services Tax — Integrated Goods And Services Tax — Exemption — Exporters Holding Advance Authorisations — Importers To First Pay Integrated Goods And Services Tax At Time Of Import And Exemption On Integrated Goods And Services Tax And Cess Component Of Import Duties Deferred To Later Date — Condition That Export Obligation Shall Be Fulfilled By Physical Exports Only, And Exemption From Integrated Goods And Services Tax Subject To Pre Import Condition — Goods And Services Tax Law A Code By Itself — Importers Enjoying Benefit Of Duty Free Imports Prior To Introduction Of Goods And Services Tax Regime — Change In Law — Matter Of Policy — Law Not Shown To Be Arbitrary Or Perverse — Intent To Prevent Imported Goods Being Released In Local Market — Provisions Valid — Constitution Of India, Art. 14 — Notification No. 79/2017-Customs Dated October 13, 2017 — Notification No. 33/2015-20 Dated October 13, 2017.


Statute:  Goods and Services Tax
Decision in favour of: Direction
Title: Chaithanya Granites And Marbles
v.  Asst. State Tax Officer, Squad No. 5, Kasaragod And Others
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Dama Seshadri Naidu J.
September 19, 2018.

Citation: [2019] 61 GSTR 38 (Ker)
Bench/Court: In The Kerala High Court
Goods And Services Tax — Detention Of Goods — Transport Of Goods From Maharashtra To Kerala — Vehicle Breaking Down In Karnataka And By Time Repair Completed Flood Situation In Kerala Worsening — Meanwhile E-Way Bill Expiring — Detention Of Goods In Kerala — Every Document To Transport Goods Available Save Expired E-Way Bill — Contention That Assessee Deliberately Delayed Transport Preposterous — Direction To Release Goods Against Personal Bond Without Bank Guarantee — Kerala State Goods And Services Tax Act (20 Of 2017), s. 129


Statute:  Value Added Tax
Decision in favour of: Assessee
Title:  G. V. Cotton Mills (P) Ltd.
v.  Assistant Commissioner (CT), Avarayampalayam Assessment Circle, Coimbatore  
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K. K. Sasidharan And P. Velmurugan JJ.
March 16, 2018.

Citation: [2019] 60 GSTR 418 (Mad)
Bench/Court:  In The Madras High Court
Value Added Tax — Ex Parte Assessment — Natural Justice — Inspection — Show-Cause Notice Issued By Enforcement Wing Officials To Appellant Pursuant To Papers Including Incriminating Materials Found During Inspection — Show-Cause Notice And Appellant’s Objections To Notice Forwarded To Respondent — Respondent Issuing Pre-Assessment Notice To Appellant On October 21, 2013 — No Response From Appellant And Assessment Completed On April 30, 2014 Taking Cognizance Of Alleged Incriminating Materials — Assessment Vitiated By Failure Of Respondent To Consider Objections Received By Enforcement Wing And Forwarded To Respondents — Also Failure Of Appellant To Submit Objection To Pre-Assessment Notice Not Giving Right To Assessing Officer To Deny Opportunity Of Personal Hearing To Appellant — Authority Expected To Post Matter For Hearing By Issuing Notice To Appellant — Assessment Order Set Aside — Tamil Nadu Value Added Tax Act (32 Of 2006)


Statute:  Goods And Services Tax
Decision in favour of: Assessee
Title:  Asianet Digital Network Private Ltd.
v.  Assistant State Tax Officer, Kollam And Others
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Dama Seshadri Naidu J.
November 29, 2018.

Citation:  [2019] 61 GSTR 396 (Ker)
Bench/Court:  In The Kerala High Court
Goods And Services Tax — Detention Of Goods — Penalty — Vehicle Carrying Set Top Boxes Intercepted And Detained On Ground Of Mismatch In Value Of Goods Mentioned In E-Way Bill And Delivery Challan — Order Demanding Petitioner To Comply With Section 129(1)(A) For Interim Release Of Goods — Writ Petition Claiming Computer Error — E-Way Bill Mentioning Correct Amount And Delivery Challan Showing 200 Set Top Boxes With Value Thereof Without Reflecting Cost Of Remaining 600 Set Top Boxes — Demand Of Both Penalty And Tax Covering All Set-Top Boxes Not Sustainable — Petitioner To Provide Bank Guarantee And Personal Bond For Amount Confined To 600 Set Top Boxes — Kerala State Goods And Services Tax Act (20 Of 2017), s. 129(1)(a).


Statute:  Service Tax
Decision in favour of: Assessee
Title:  Commissioner Of Central Goods And Services Tax, Jaipur
v. Rajasthan Tourism Development Corporation Ltd.
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K. S. Jhaveri And Vijay Kumar Vyas JJ.
February 28, 2018.

Citation:  [2019] 60 GSTR 272 (Raj)
Bench/Court:  In The Rajasthan High Court — Jaipur Bench
Service Tax — Business Auxiliary Service — Limitation — Introduction Of Railway Transport “Palace On Wheels” And “Royal Rajasthan On Wheels” By Respondent — Agreement Entered Into With Emporia/Shops For Stopping Trains Before Said Shops To Facilitate Passengers To Do Shopping, Etc. — Department Taking View That “Facilitation Fee”, Received By Respondent From Shops And Emporia Commission Liable To Service Tax Under “Business Auxiliary Service” And Issuing Show-Cause Notice Dated October 20, 2010 For Period April, 2005 To March, 2010 — Tribunal On Facts Restricting Demand To Normal Period Of Limitation — Valid — Finance Act (32 Of 1994), ss. 65(19)(I) , 73


Statute:   Service Tax & Goods and Services Tax
Decision in favour of: Department
Title:
(1) Laxmi Narayan Sahu  W. P. (C) No. 2059 Of 2018
(2) P. K. M. Erectors W. P. (C) No. 1868 Of 2018
(3) Mascot Entrade Pvt. Ltd. W. P. (C) No. 7729 Of 2017
v.  Union Of India And Others
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Achintya Malla Bujor Barua J.
October 12, 2018.
 
Citation:   [2019] 60 GSTR 14 (Gau)
Bench/Court:   In The Gauhati High Court
Service Tax-Goods and Services Tax-Repeal and Saving- Omission of Statutory Provision-Proceedings Under Omitted Enactment Continues to Remain if There Be Saving Clause In Enactment Bringing About Such Omission- Omission Of Chapter V Of Finance Act Of 1994, Under Section 173 Of CGST Act - Saving Clause In Section 174(2)(E) Of CGST Act - Will Enable Continuation Of Investigation, Enquiry, Verification, Etc., That Were Made/To Be Made Under Chapter V Of Finance Act Of 1994 — Writ Petition Seeking Interference With Demand-Cum-Show-Cause Notices Issued By Assistant Commissioner, Central Goods And Services Tax, Of Different Districts For Failure To Pay Service Tax Leviable Upon Petitioners - Dismissed - Finance Act (32 Of 1994), ss. 73(1) , 75 , 76 , 78 -Central Goods And Services Tax Act (12 Of 2017), ss. 173 , 174(1) , (2)(E)

B. RECENT ADVANCE RULINGS UNDER GST

THE AUTHORITY ON ADVANCE RULINGS IN KARNATAKA
GOODS AND SERVICE TAX
VANIJYA THERIGE KARYALAYA, KALIDASA ROAD GANDHINAGAR, BENGALURU – 560 009

Advance Ruling No. KAR ADRG 32 / 2018
Dated: 3rd DECEMBER 2018

Name and address of the applicant: M/s Bindu Ventures,  Rajajinagar Industrial Estate, Bengaluru - 560044

1.The applicant has sought advance ruling in respect of the following questions:

(a) Which date should be considered as the date of completion of the property – the date of receipt of necessary approvals from BBMP / Karnataka Pollution Control Board / Karnataka Electricity Board or the date of receipt of completion certificate from a registered Chartered Engineer?

(b) Whether the applicant is liable to pay GST on any amount received as consideration towards sale of completed offices, after the date of completion, where part of the consideration was received prior to the date of completion as determined in question (a) above?

(c) Whether the applicant is liable to pay GST on the consideration received as consideration towards the sale of completed offices, where the entire consideration is received after the date of completion of construction as determined in question number (a) above?
R U L I N G

1. The date of Occupancy Certificate issued by the competent authority,   i.e. Bruhat Bengaaluru Mahanagara Palike should be treated as the date of completion of the construction.

2. If any part of the consideration is received before such date of completion, then the transaction would be considered as the supply of services in terms of entry 5 of Schedule II to the GST Acts, and liable for GST.

3. If the entire consideration is received after the date of completion of, then the transaction would not be liable to GST.


HARYANA AUTHORITY FOR ADVANCE RULING
GOODS AND SERVICES TAX 
HARYANA VANIJYA BHAWAN,
PLOT NO. I-3, SECTOR 5, PANCHKULA - 134151

Advance Ruling No. HAR/HAAR/R/2018-19/02
Dated: 29th JUNE 2018

Name and address of the applicant: M/s B.M. Industries,
Industrial Estate, Phase-II, Yamunangar, Haryana

1.The applicant has sought advance ruling in respect of the following question:
Whether, consequent upon merger of proprietor concern as a going concern with a private limited company, the ITC available in the credit ledger or cash ledger of the proprietorship firm is eligible to be transferred to the respective ledger account of the private limited company?

R U L I N G

The applicant on merger of his proprietorship firm as a going concern with a private limited company, is not liable to pay tax under CGST/SGST Act on the fixed assets and current assets including stocks of raw material, semi-finished and finished goods.
The input tax credit available in the credit ledger account of the proprietorship firm shall be transferred to the respective credit ledger account of the private limited company, consequent upon merger, subject to the provisions of Section 18(3) of the CGST/HGST Act, 2017 and Rule 41 of the CGST/HGST Rules, 2017.
The provisions of Section 18(3) of the CGST/HGST Act, 2017 and Rule 41 of the CGST/HGST Rules, 2017 are not applicable to he balance lying in electronic cash ledger.


WEST BENGAL AUTHORITY FOR ADVANCE RULINGS
14 BELIAGHATA ROAD, 
KOLKATA – 700015
Advance Ruling No. 20/WBAAR/2018-19
Dated : 28th JANUARY, 2019

Name and address of the applicant: M/s Storm Communications Private Limited, Sector-A, Metropolitan Co-operative Housing Society Ltd., Tiljala, Kolkata- 700105

1. The applicant has sought advance ruling in respect of the following question:

(a) Can a person, registered in West Bengal, claim ITC for CGST and SGST of other states?
(b) Can he adjust the ITC of one state’s CGST for payment of another state’s CGST? 
(c) Can he adjust the ITC of Tamil Nadu GST for payment of IGST, whereas he is not registered in Tamil Nadu?

R U L I N G

The Applicant is not registered under Section 25(1) of the CGST Act in Tamil Nadu. The SGST and CGST paid on intra-state inward supply in Tamil Nadu are not, therefore, input tax to the Applicant. The GST Act does not contain any concept of input tax in relation to an unregistered person. No credit of it is, therefore, admissible under the GST Act. 

So, to answer in the Applicant’s language: 
(a) A person, registered in West Bengal, cannot claim ITC for CGST & SGST of other states. 
(b) He cannot adjust the ITC of one state’s CGST for payment of another state’s CGST. 
(c) He cannot adjust the ITC of Tamil Nadu GST for payment of IGST, whereas he is not registered in Tamil Nadu.

C. RECENT CHANGES IN GST UNDER UNION BUDGET 2019

1.REDUCTION IN GST RATES 

The high taxation levied on multiple commodities in the pre-GST regime has been rationalised and the burden on the consumer, especially the poor and the middle class, has been significantly reduced. 

    The GST Council, comprising the Centre and States/UTs, finalised the GST rates collectively mostly lower than pre-GST rates. Since then, GST has been continuously reduced providing relief of about ` 80,000 crore annually to consumers.

Most items of daily use of the poor and middle class are now in the 0% or 5% tax slab.  Cinema goers who were subjected to multiple taxes up to 50% are mostly paying much lower tax at 12% now.

 Government wants the GST burden on home buyers to be reduced and accordingly we have moved the GST Council to appoint a Group of Ministers to examine and make recommendations in this regard at the earliest.

2. COMPOSITION  SCHEME  

GST aims to benefit small traders, manufacturers and service providers. Exemptions from GST for small businesses have been doubled from 20 lakh rupees to 40 lakh rupees.  Further,  small  businesses  having  turnover  up  to 1.5 crore rupees have been given an attractive composition  scheme  wherein they pay only 1% flat rate  and  have  to  file  one  annual  return  only.

   Similarly, small service providers with turnover upto 50 lakhs rupees can now opt for composition scheme and pay GST at 6% instead of 18%.  More than 35 lakh small traders, manufacturers and service providers will benefit from these trader friendly measures. Soon, businesses comprising over 90% of GST payers will be allowed to file quarterly return.

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