Applicable Articles of Constitution of India to GST (Happy GST series – 31) by CA Rajender Arora
What is meant by Equality before law?
As per Article 14, The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India.
2. What is the Special provision with respect to goods and services tax?
Article 246A, Special provision with respect to goods and services tax.—
(1) Notwithstanding anything contained in articles 246 and 254, Parliament, and,
subject to clause (2), the Legislature of every State, have power to make laws with respect to goods and services tax imposed by the Union or by such State.
(2) Parliament has exclusive power to make laws with respect to goods and services tax where the supply of goods, or of services, or both takes place in the course of inter-
State trade or commerce.
Explanation.—The provisions of this article, shall, in respect of goods and services tax
referred to in clause (5) of article 279A, take effect from the date recommended by the Goods and Services Tax Council.
3. How taxes shall be levied or collected?
As per Article 265, No tax shall be levied or collected except by authority of law.
4. How Taxes are levied and collected by the Union but assigned to the States?
Article 269, Taxes levied and collected by the Union but assigned to the States.—
(1) Taxes on the sale or purchase of goods and taxes on the consignment of goods,
except as provided in article 269A, shall be levied and collected by the Government of
India but shall be assigned and shall be deemed to have been assigned to the States
on or after the 1st day of April, 1996 in the manner provided in clause (2).
Explanation.—For the purposes of this clause,—
(a) the expression "taxes on the sale or purchase of goods" shall mean taxes on
sale or purchase of goods other than newspapers, where such sale or purchase
takes place in the course of inter-State trade or commerce;
(b) the expression “taxes on the consignment of goods” shall mean taxes on the
consignment of goods (whether the consignment is to the person making it or to
any other person), where such consignment takes place in the course of inter-
State trade or commerce.
(2) The net proceeds in any financial year of any such tax, except in so far as those proceeds represent proceeds attributable to Union territories, shall not form part of the Consolidated Fund of India, but shall be assigned to the States within which that tax is leviable in that year, and shall be distributed among those States in accordance with such principles of distribution as may be formulated by Parliament by law.
(3) Parliament may by law formulate principles for determining when a sale or
purchase of, or consignment of, goods takes place in the course of inter-State trade or commerce.
Article 269A, Levy and collection of goods and services tax in course of inter-
State trade or commerce.—
(1) Goods and services tax on supplies in the course of inter-State trade or commerce shall be levied and collected by the Government of India and such tax shall be apportioned between the Union and the States in the manner as may be provided by Parliament by law on the recommendations of the Goods and Services Tax Council.
Explanation.—For the purposes of this clause, supply of goods, or of services, or both
in the course of import into the territory of India shall be deemed to be supply of
goods, or of services, or both in the course of inter-State trade or commerce.
(2) The amount apportioned to a State under clause (1) shall not form part of the
Consolidated Fund of India.
(3) Where an amount collected as tax levied under clause (1) has been used for
payment of the tax levied by a State under article 246A, such amount shall not form part of the Consolidated Fund of India.
(4) Where an amount collected as tax levied by a State under article 246A has been used for payment of the tax levied under clause (1), such amount shall not form part of the Consolidated Fund of the State.
(5) Parliament may, by law, formulate the principles for determining the place of
supply, and when a supply of goods, or of services, or both takes place in the course of inter-State trade or commerce.
5. What is Goods and Services Tax Council?
As per Article 279A, Goods and Services Tax Council.—
(1) The President shall, within sixty days from the date of commencement of the
Constitution (One Hundred and First Amendment) Act, 2016, by order, constitute a
Council to be called the Goods and Services Tax Council.
(2) The Goods and Services Tax Council shall consist of the following members,
namely:—
(a) the Union Finance Minister—Chairperson;
(b) the Union Minister of State in charge of Revenue or Finance—Member ;
(c) the Minister in charge of Finance or Taxation or any other Minister
nominated by each State Government—Members.
(3) The Members of the Goods and Services Tax Council referred to in sub-clause (c) of
clause (2) shall, as soon as may be, choose one amongst themselves to be the Vice-
Chairperson of the Council for such period as they may decide.
(4) The Goods and Services Tax Council shall make recommendations to the Union
and the States on—
(a) the taxes, cesses and surcharges levied by the Union, the States and the
local bodies which may be subsumed in the goods and services tax;
(b) the goods and services that may be subjected to, or exempted from the goods
and services tax;
(c) model Goods and Services Tax Laws, principles of levy, apportionment of
Goods and Services Tax levied on supplies in the course of inter-State trade or
commerce under article 269A and the principles that govern the place of
supply;
(d) the threshold limit of turnover below which goods and services may be
exempted from goods and services tax;
(e) the rates including floor rates with bands of goods and services tax ;
(f) any special rate or rates for a specified period, to raise additional resources
during any natural calamity or disaster ;
(g) special provision with respect to the States of Arunachal Pradesh, Assam,
Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim,
Tripura, Himachal Pradesh and Uttarakhand; and
(h) any other matter relating to the goods and services tax, as the Council may
decide.
(5) The Goods and Services Tax Council shall recommend the date on which the goods
and services tax be levied on petroleum crude, high speed diesel, motor spirit
(commonly known as petrol), natural gas and aviation turbine fuel.
(6) While discharging the functions conferred by this article, the Goods and Services
Tax Council shall be guided by the need for a harmonised structure of goods and
services tax and for the development of a harmonised national market for goods and
services.
(7) One-half of the total number of Members of the Goods and Services Tax Council shall constitute the quorum at its meetings.
(8) The Goods and Services Tax Council shall determine the procedure in the
performance of its functions.
(9) Every decision of the Goods and Services Tax Council shall be taken at a meeting,
by a majority of not less than three-fourths of the weighted votes of the members
present and voting, in accordance with the following principles, namely:—
(a) the vote of the Central Government shall have a weightage of one-third of the
total votes cast, and
(b) the votes of all the State Governments taken together shall have a weightage
of two-thirds of the total votes cast, in that meeting.
(10) No act or proceedings of the Goods and Services Tax Council shall be invalid
merely by reason of—
(a) any vacancy in, or any defect in, the constitution of the Council; or
(b) any defect in the appointment of a person as a Member of the Council; or
(c) any procedural irregularity of the Council not affecting the merits of the
case.
(11) The Goods and Services Tax Council shall establish a mechanism to adjudicate
any dispute—
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and
one or more other States on the other side; or
(c) between two or more States, arising out of the recommendations of the
Council or implementation thereof.
6. What are the Restrictions as to imposition of tax on the sale or purchase of goods?
As per Article 286, Restrictions as to imposition of tax on the sale or purchase of
goods. —
(1) No law of a State shall impose, or authorise the imposition of, a tax on 2[the supply
of goods or of 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.
(2) Parliament may by law formulate principles for determining when a supply of goods
or of services or both in any of the ways mentioned in clause (1).
7. What is safeguard available to input tax credit under Constitution?
As per Article 300A, No person shall be deprived of his property save by authority of law.
8. Define Goods, Services, Tax & GST?
As per Article 366, Definitions. —
366(12) “goods” includes all materials, commodities, and articles;
366(12A) “goods and services tax” means any tax on supply of goods, or services or both except taxes on the supply of the alcoholic liquor for human consumption;
366(26A) “Services” means anything other than goods;
366(28) “taxation” includes the imposition of any tax or impost, whether general or local or special, and “tax” shall be construed accordingly;
9. What is included in tax on the sale or purchase of goods?
As per Article 366(29A) “tax on the sale or purchase of goods” includes—
(a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any
goods for cash, deferred payment or other valuable consideration;
(b) a tax on the transfer of property in goods (whether as goods or in some other form)
involved in the execution of a works contract;
(c) a tax on the delivery of goods on hire-purchase or any system of payment by
instalments;
(d) a tax on the transfer of the right to use any goods for any purpose (whether or not
for a specified period) for cash, deferred payment or other valuable consideration;
(e) a tax on the supply of goods by any unincorporated association or body of persons
to a member thereof for cash, deferred payment or other valuable consideration;
(f) a tax on the supply, by way of or as part of any service or in any other manner
whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of
those goods by the person to whom such transfer, delivery or supply is made;
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