On HUFs and Gender- Discrimination

So Vidyut on Twitter came across this thing called HUF and was immediately furious. Her angry tweet is here. 

I can see why she is angry. The concept of HUFs should have died long ago. 

Insofar I know, no one is very clear on what exactly an HUF is and why this concept even exists. So I venture to set the record (or at least, firmly crooked). 

When the British came in, they decided that as a matter of policy, they will not interfere with local customs (unless they specifically chose to interfere). The British judges were expected to settle disputes according to local customs. The 'Plan for Administration of Justice' made by Warren Hastings' Committee of Circuit in 1772 states:

"That in all suits regarding inheritance, marriage, caste and other religious usages or institutions, the law of the Koran with respect to Mahometans [Muslims], and those of the Shaster [Shastra] with respect to Gentoos [Hindus] shall be invariably be adhered to."

Hastings believed that Indians already had some clearly defined laws and customs for managing their own affairs, and it was best that they be allowed to continue with them. 

But what exactly were those laws, what was the requirement of the 'Shaster'? Hastings left it to the judges to find out. Initially, the courts appointed some pandits and maulanas to help them decide as per Shaster or Koran, but realised that those folks were really advising in favour of the best bidder. 

William Jones and Henry Colebrooke went about translating obscure Sanskrit texts. Colebrooke concluded that there were 2 main texts governing inheritance: one called Dayabhag, the other Mitakshara. Dayabhag was generally prevalent in regions where Brahmins relished fish and flesh, that is to say, in Bengal and Assam. Mitakshara was prevalent in rest of the country, where Brahmins vomited at the mere mention of non-vegetarian stuff. 

Jones & Colebrooke assumed that these were the prevailing laws in the country, and not some useless obscure texts. In any case, they gave the British judges some clarity on how to go about settling property disputes, and the litigants some predictability on what to expect. Gaps in Dayabhag and Mitakshara were filled by judges by referring to European practices. Over time, the decisions of the courts created a body of legal precedents. 

With these legal precedents filling the legislative void, Dayabhag and Mitakshara systems became the legally accepted benchmark for property ownership and inheritance. [Much later, some people claimed that these texts did not correctly capture the customs prevalent in the country, that there were other more authoritative texts. The courts refused to examine the matter. There was no point re-inventing the wheel.]

In the more common Mitakshara, the property was jointly owned by all male members of the family. A male member co-owned the property from his birth to death. The eldest male was the decision-maker, the karta (literally, the do-er). 

When the taxmen knocked for revenue, they were told that the family as a whole owned the property. So, they wrote tax laws to recognise the 'family' as a taxable person, and asked it to pay taxes at the same rate as applicable to individuals. This 'family' is the HUF, a taxable person separate from the individuals forming it. 

Meanwhile, the freedom movement and Independence brought along wholly novel ideas. Like Equality. Ambedkar came up with a Hindu Code Bill which proposed, among other things, that widows would have a right in deceased husband's property. There was a huge furore over it. Ambedkar thought Nehru was not pushing the Bill with all his force, and quit in 1951. It took Nehru another 5 years to get the whole thing enacted, splitting it into 4 Bills. 

With these 4 laws, Nehru rescued Hindus from the gutter of traditional scriptural laws, a favour he did not extend to the minorities. The Hindu Succession Act, 1956 recognised widow's right to property. It also provided details of share of other family members in inherited property, effectively consigning big chunks of Dayabhag and Mitakshara systems to the dustbin. Half a century later, Sonia Gandhi -led NAC would push through another 4 pro-women legislation. The 2005 amendment to Hindu Succession Act gave daughters equal rights as son, thus consigning even more chunks to the dustbin. 

But Dayabhag and Mitakshara did not go away completely. They survive in a whittled down form, they have a source of sustenance in the tax law, in the thing called HUF. To be more specific, they draw sustenance from the fact that HUF pays tax at the same rate as individuals. 

Income Tax rates are progressive. As your income rises, your tax rate (and not just the amount) also rises. Depending on your (disclosed) income, your marginal tax rate may go up from 5% to 30% (ignoring surcharge and cess). So, if you can split your income into your individual income and family's income, you can save some tax. 

Which is what many people do. Though as Lubna Kably notes, it is falling out of favour after the 2005 amendment. People are not comfortable with the idea of a married daughter demanding share in ancestral property. 

So coming back to Vidyut's tweet, are HUFs a case of gender-discrimination? It surely was. But legislative interventions, coupled with some progressive rulings post-Independence, have reduced the discriminatory nature. Now, a woman can be the Karta: the head of the family, and daughters have a share in ancestral property (even after marriage). But discrimination remains. A wife, for example, cannot demand that assets in an HUF be distributed off to the members of the family. 

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Some Fun GST Rules

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1. For ads in trains, Railway has to raise separate bills by dividing the ad revenue in ratio of track length for that train in each State.

2. For pamphlets to be distributed multi-state, the person giving order must inform the printer of number of pamphlets required in each State, as printer needs to raise separate bill for each State.

3. For ads printed on train tickets, allocate billings in the ratio of number of railway stations in each State.

4. For TV advertising, your channel should raise separate bills for each State by diving total billing in the ratio of its viewership in each State as per BARC figures for last week of previous quarter.

5. Where BARC figures club data for many than one State (such as Bihar & Jharkhand), further allocation to be done as per population of such States as per latest census.

6. For Internet ads, allocate billing in the ratio of number of net subscribers as per TRAI data for last quarter of preceding FY. Raise separate bills for each State and Union Territory. (Where TRAI data combines some States/UT, allocate using population as per latest census.)

7. For sms-based ads, allocate in the ratio of telecom subscribers as per TRAI Data.

These amendment to IGST Rules have been published in the Gazette on 15th November 2017 but come into effect from 1st July 2017.

Composition Scheme under GST

Few points to consider while deciding on Composition Scheme (apart from filing frequency and absence of credit) :

1. GST rates for your products and your margin: if you are dealing primarily in 12%, 18% and 28% items, you might save tax by paying Composition tax @1% on sale instead of full rate on value addition. If you are dealing in 5% GST items, composition at 1% of sale value may be costlier.

2. Tax on exempted item: Person under Composition will pay 1% on exempt items also. If you are selling both taxable and exempt items, you should estimate total impact.

3. Reverse Charge: Registered persons have to pay tax under reverse charge on all inwards (whether goods, expenses, assets) from unregistered supplier. There is no relief to Composition dealer from reverse charge. Further, since you can't claim credit for the same, it is an extra cost to you.

4. Restriction on interstate supply.

5. No relief in draft e-way bill rules.

6. Pay GST on opening stock from unregistered persons.

-CA. Sandeep Choudhary
9433359031/9564320249

On Linking Tax Credits to Payment

by CA. Sandeep Choudhary

Section 16(2)(c) of the CGST Act provides that the recipient is eligible for input tax credit only if the supplier has paid tax. This is problematic, as the supplier may be unable to make the payment in time due to transient liquidity issues. Once the supplier has informed the govt that he has made the supply, the recipient should be allowed to claim credit. Since small entrepreneurs without access to organised credit are more likely to face such issues, they may get wiped out because of this provision. 

I had flagged this issue in a June 2016 post. Recently, it has been raised again by Tejas Goenka of Tally. In this post, I examine the backdrop for introduction of this provision.  

Over the years, the CAG has been criticising the excise department for the fact that tax credit exceeds tax collected in cash. In this 2014 report (snapshot below), the CAG points out that CENVAT credit utilisation is 147% of cash collection (PLA). Note that the Govt does not respond by asking "And your point is?" but points in another direction. 

When the office of CAG first highlighted that credit utilisation exceeds cash collection, there was hue and cry over people claiming false credit. Nowadays, it does not attract attention. But "Central Excise Receipts vis-à-vis CENVAT Credit Utilised" is a permanent feature of CAG report on Excise Department (click for CAG Reports for 2014, 2015, 2016 and 2017). 

The point missed here is that any efficient tax credit chain, credit will naturally exceed revenue collected in cash. Let us take an example. 

Suppose 'A' sells goods for Rs 2 Lakh plus tax to 'B', who after some processing sells it to 'C' for Rs. 2.2 Lakhs plus tax. 'C' adds some more value to the goods and sells to the final consumer for Rs. 2.4 Lakhs plus tax. 

Taking the standard rate of 12.5%, A would have paid Rs. 25,000/- as excise duty. B took credit of this Rs, 25,000/-, charged Rs 27,500/- to 'C' and paid the difference Rs. 2,500/- in cash. 'C' took credit of Rs. 27,500/-. He charged his customer Rs. 30,000/- for tax and paid the difference of Rs. 2,500/- in cash. 

The total tax collection by Govt is Rs. 30,000/- (Rs. 25,00 from A, and Rs. 2,500 each from B and C.) Total tax credit claimed is Rs. 52,500/- (Rs. 25,000 by B and Rs. 27,500 by C). Credit claimed is 175% of tax collection in cash, though no one has claimed credit incorrectly. 

The reason is not difficult to decipher. Both B and C are claiming full credit of the tax payment of Rs. 25,000/- by A. Such a claim is integral to the basic design of tax credit chains. 

When MODVAT credit was first introduced, there were significant restrictions on taking credit, market was fragmented and credit was often lost because traders in the business chain were not registered under excise law. Over the years, as the tax credit chain became more robust, credit utilisation started exceeding tax collected in cash. 

Is there a false-claim problem in CENVAT credit?  Maybe. But it's not an inference that flows automatically from credit- collection ratio. In the simple 3-supplier example above, you get a ratio of 175%. If there are more suppliers, the ratio will increase further. 

You cannot infer 'false claims' by looking at credit- collection ratio. That ratio depends on a lot of things: whether credit chain is interrupted at any point, share of upstream and downstream supplier in value addition, number of layers of transactions in the chain, collection from. outliers (petro and tobacco products), etc.

Yet, excess of tax credit over tax collection in cash has been wrongly assumed to be necessarily evidencing false claims. CAG, excise authorities as well as parliamentarians in Standing Committees have all accepted this assumption unquestioningly year after year. And now tax credit is being linked to payment by supplier in GST. But what will happen when GST kicks in? Let's look at the current numbers.

CENVAT Credit utilisation as a proportion of cash collection peaked at 161% in FY 13-14 before falling to 108% in FY 15-16. The fall is attributed by CAG to the sharp jump in share of petroleum products in excise collections, from 48% to 69%. Notably, no credit is available on petroleum products. It may be reasonable to assume that for non-petro products, the proportion of credit utilisation to tax collected in cash continues to increase. 

In GST, as tax chains integrate across the trader-manufacturer divide as well as on interstate sales, the proportion of credit utilisation to tax collected in cash will rise dramatically. If we can touch 161% in the fragmented CENVAT regime, we may reach a figure of 500% in the integrated market GST envisages. 

How will our Govt and CAG respond to the jump in ratio of credit utilisation in GST? Will they revisit their arithmetic and understand the truth about tax credit chains? Or will the Govt tighten the screws further: inspecting, scrutinising and auditing every taxpayer's record to discover its non-existing cash collection? It is difficult to be optimistic.

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Handling Purchases and Expenses with Care under GST

by CA. Sandeep Choudhary

The following points need to be taken care of while purchasing goods or incurring any expenditure:

1. Reverse Charge

Whenever you receive any supply of goods or services from any Unregistered person, you need to pay tax on it by self-invoicing yourself.

Suppose you are getting some documents photocopied for Rs. 10/- and the person photocopying is not registered. So now you need to pay tax on reverse charge basis by raising an invoice on yourself.

Essentially, for every expenditure (other than employee benefits and purchase of real estate) in your books, you need to pay tax on reverse charge basis if the supplier is Unregistered.

The tax has to be paid in cash, you cannot utilize input credit for the same.

Details of Reverse Charge obligation needs to be provided monthly.

You can claim credit for tax on reverse charge, subject to payment. As such, this provision is cumbersome but does not have a high monetary impact for most businesses. (There will be some impact to the extent credit is denied.)

In a perverse way, it dramatically increases liability for registered persons dealing in exempted goods, as they will not be able to take credit. Similarly, composition dealers will find their tax liability shoot up.

2. Inwards from Registered supplier

Make sure that your GSTIN is quoted correctly by your supplier in the Tax Invoice. Print your GSTIN in your visiting card and share the same for every small purchase or service received from any registered person. If your supplier does not mention the supply against his GSTIN, you cannot claim credit.

3. E-way Bill

This is required for every movement of goods above Rs. 50,000/-. If your supplier is Unregistered, you should generate the e-way bill. Even for registered supplier, you can generate the e-way bill.

4. Timing of credit

Input Tax Credit on goods upon receipt of goods and invoice. Thus, where goods are in transit at the end of the month, credit will be be available in the month when goods are received.

Similarly, where you have given advance to the supplier and the advance has been taxed, you cannot claim credit to goods are received along with Tax Invoice.

For services, credit is available when service is completed. Thus, for AMCs, credit will be available at the end of annual cycle even though tax may have been paid in the beginning.

Credit is not available after filling of annual return. This provision will force AMC companies to review their business model.

Credit is fully available immediately. It is not staggered for capital goods in GST (except in some specified industries).

5. When Credit is not available

Credit is denied for certain items such as motor vehicles (except where you are in business of selling them or in transport business etc), etc.

Credit will also not be available if you have an intra- state bill of a state in which you are not registered. This will typically be the case when services are consumed outside the state.

6. Proportionate credit

If you deal in both exempt and taxable items, credit is allowed only for input tax relatable to taxable items. Input Tax paid in relation to exempted goods (such as tax on packing material for exempted goods) will not be eligible for credit.

There may be some expenses for business as a whole where it is not possible to say that this expense was only for taxable items or only for exempt items. In such cases, input tax will be allocated in the ratio of turnover of exempted and taxable, and credit will be denied on input tax allocable to exempt goods.

7. Non-payment

Credit is denied if you don't pay your supplier within 180 days.

8. Monthly GSTR-2A and GSTR-2

Based on GSTR-1 returns filed by your suppliers monthly by 10th of next month, the portal will auti-populate GSTR-2A on 11th. You have to compare this with your books and correct errors and omissions. The corrected return for inwards is called GSTR-2. It has to be filed by 15th.

Where the inward transaction is reflected correctly, you will not make any correction and the transaction will get matched.

Where the supplier has made any mistake, you can correct the same in GSTR-2. Your tax credit is PROVISIONALLY based on your claims in GSTR-2 and not as per filing by your suppliers. However, this is provisional. Final credit is allowed only if your supplier has recorded the transaction, paid taxes for the month and also filed monthly returns for that month.

If your supplier accepts corrections pointed out by you by 17th, the transaction gets matched in the same return cycle. Alternatively, supplier may accept error in the next monthly return (Each return has separate columns for correcting mistakes of preceding returns). However, if supplier does not accept your claim in next monthly return also, provisional credit given earlier will be added to output tax of next month.

GSTR-2 will also contain details of credit deferred where stock is in transit or service is not completed. In such cases, you should take care that credit is taken when it is eligible (upon receipt of goods or completion of service).