Recently, a nine-judge bench of the Supreme Court, in the context of entry tax, has upheld and re-emphasised states’ right to fiscal autonomy by holding that states are well within their rights to design their fiscal legislation so long as such taxes are non-discriminatory towards goods imported from outside the state against goods produced locally.
Thus, it would be interesting to see how Supreme Court would interpret the principles of fiscal autonomy in case any such dispute with respect to recommendation of GST Council was to reach the apex court. In case the Supreme Court was to uphold the sovereign right of states to administer their GST laws, it would be a huge blow on the basic premise of GST — uniformity and harmonisation — and would lead to similar distortions as prevalent under the current tax regime. It is, therefore, imperative that the Centre, states and the GST Council at the outset agree to and decide on an effective dispute resolution mechanism, with appropriate sanctions, which would make it difficult for the Centre or states to wriggle out of the recommendations of the GST Council and would preserve the basic feature of GST – One Nation One Tax.
(Sandeep Chilana is partner, Shardul Amarchand Mangaldas & Co; Atulya Kishore also contributed to the piece)
‘Does not put an end to entry-tax litigations’
The nine-judge bench of the Supreme Court, with a majority verdict of 7:2 has upheld the constitutional right to levy entry tax by the states per se, subject to caveats. It has inter alia held that Article 301 of the Constitution (essentially providing for ‘free’ flow of trade and commerce across India) does not apply to taxes. Therefore, imposition of entry tax cannot be said to be restriction on freedom of trade and commerce.
The court has also overruled the concept of ‘compensatory taxes’ (developed in earlier decisions) holding that the concept of ‘compensatory taxes’ does not have any juristic basis. It has further been held that Article 304(a) and 304(b) are to be read separately and the states do not require Presidential assent to impose entry tax.
However, this landmark decision of the Supreme Court does not really put an end to the entry tax litigations as the validity of individual state law has to be decided by the smaller bench of the apex court based on guidelines laid down in this case.
That is, if entry tax is discriminatory in nature, it will still be unconstitutional.
For example, if entry tax is imposed on particular goods entering into the local area of a state and there is no corresponding levy on the same goods manufactured within the state, it is prima-facie discriminatory without any intelligible differentia, in which case, the entry tax law of that state might still be unconstitutional.
Further, the pending constitutional validity challenges against the anti-e-commerce entry tax amendments made by various states in the past year should largely remain unaffected since most such challenges are based on arguments other than those dealt with by Supreme Court in this decision.
Last but not the least, given the imminent GST regime wherein there will be no entry tax, this decision will remain of limited general relevance after 2017 – to the extent it throws light on the correct interpretation of Articles 301 to 304 of the Constitution if and when any tax/levy/cess by a state government needs to be evaluated on the touchstone of Article 304(a).
(Sudipta Bhattacharjee is partner, tax controversy management and contract documentation, Advaita Legal)