“As is Where is” Basis: India’s New Tax Policy Mantra

Preface: Positioning tax policy

Tax policy has many dimensions. Its principal function involves delineation of the variables and their consideration from the perspective of formulating the subjects and their transactions which are to be taxed. This includes enlisting subjects identified for heavy incidence of tax, considering the activities which the policymakers deem as those which must be discouraged. Tax policy further encompasses within its framework a forward-looking outlook as regards the economic activities or other transactions which are to be incentivised, keeping in perspective economic growth. Through these twin functions, the tax policy evolves an economic outlook which translates into fiscal legislations, once enacted by the legislature, and is thereafter enforced by the executive through the tax administration.

Tax policy formulation is a dynamic function as it is highly reactionary to contemporary societal mores and changes diametrically contingent upon the priorities of the incumbent Government. Thus, instead of being cast in stone, tax policy translates into a set of fluctuating rules wherein the pendulum swings widely and often violently.

Tax policy, furthermore, is not just forward looking but also is accommodative of the need to reconcile past actions of the tax administrations vis-à-vis industry’s stance. Thus, tax policy functions include within their scope formulation and administration of remedial measures insofar as course correction is deemed necessary in respect of past tax policy decisions which have either not resulted in the anticipated consequences or have led to inadvertent ramifications deviating from the intended objectives. In such scenarios, policy-framers are often faced with the overwhelming necessity to: (a) revisit the foundational tenets which formed the basis for introduction of a particular element in tax law; (b) assess the consequences of the policy variables; (c) measure their impact, and thereafter; (d) enlist the areas of improvement which would require rectification measures.

The unintended consequences of a tax policy stance can be either to the benefit of the tax administration or the taxpayers, depending upon the prism from which such consequences are assessed. In such scenarios, when deemed expedient to course-correct, various options exist in the arsenal of the policy-framers to reaffirm their original stance. Depending upon the overwhelming priorities and sternness of response determined appropriate, the policy-framers may recommend amongst various measures — administrative clarification being at one end of the spectrum to retrospective validation legislation at the other end. There are pros and cons attached with each option, with their distinct legal effects and enforceability; hence, selection from amongst these choices is also an intense exercise, being another dimension of tax policy.

Besides the legal aspects of the respective remedial measures, each of them also has an economic impact as the increase or decrease of tax incidence, as the case may be, of such measures affects the tax administration and taxpayers alike. For illustration, a formalisation of a practice of non-levy can result into legitimising revenue foregone for the Government. Conversely, as another illustration, rejection of taxpayer’s stance through appropriate measures yields economic gains to the exchequer. Such instances are essential economic pain for the taxpayers as these measures, being implemented in hindsight, are at the very least retroactive (if not retrospective) in operation as they are introduced and implemented “after the fact”.

In brief, conceptualisation, formulation and implementation of a tax policy measure which seeks to address a past deviation, is an intense exercise fraught with consequences. Furthermore, these measures need to stand the test of constitutional propriety and legality insofar as they may trample rights of the citizens. Thus, the measures being subject to judicial review, need to be designed and implemented in an appropriate legal framework.

“As is where is” basis: Understanding the new tax policy tool

During the pendency of proceedings before them, inter alia in order to balance the competing interests of the parties in the interim, the courts often direct status quo. It implies that “the existing position at the time of order should not be changed which means that in no way the features or character of the subject-matter should be altered or changed”.¹ Thus, a direction of status quo is to the effect that the parties should maintain their respective positions. However, a direction of status quo is an interim direction to be observed until the proceedings are finally determined, at which stage the status quo direction shall yield to the final determination.

Imagine a situation wherein a status quo direction is not an interim direction and is instead a final determination of the rights of parties. In other words, notwithstanding the correctness or propriety of the claim of a party, the existing status is recognised as the legal final status. The competing claims of the parties, therefore, stand rejected without detailed consideration as the pragmatic status is declared to be the legal status. One may call such a situation iniquitous as it is not necessary that the status of the parties existing on the date of the status quo order is legally sustainable. For illustration, passing a permanent status quo order in case of a land dispute confers property entitlement upon an encroacher. As another illustration, a permanent status quo order in a situation of loan default may likely prejudice the rights of the lender. Thus, while status quo may be justified as an interim order as a means to dissuade further aggravation of the dispute during its pendency, a permanent status quo declaration may actually result in grave injustice.

But why this discussion in status quo in a tax policy elocution. Perhaps because the definition of a status quo legal consequence appears to be the closest parallel to explain a novel tax policy tool evolving in India — the “as is where is” basis policy.

By way of the Constitution (One Hundred and First Amendment) Act, 2016², the Constitution of India was amended to inter alia insert Article 279-A, thereby birthing a new constitutional institution i.e. the Goods and Services Tax Council (“GST Council”).³ One of the key functions of the GST Council is to evolve tax policy on indirect taxes in India under the umbrella framework of goods and services tax (“GST”) as a new indirect tax regime.

During its 53rd Meeting, the GST Council made certain recommendations to the Union and the States.⁴ Called upon to evolve a policy response in respect of certain questions which arose owing to the implementation of the GST laws, the GST Council considered it expedient that some of those issues are best resolved by way of its recommendation “to regularise past practice on ‘as is where is’ basis”.⁵

Given that it was perhaps the first time that the “as is where is” policy was adopted, questions arose on the meaning and implications of this policy stance of the GST Council. Thus, need arose for the GST Council to clarify its understanding of “as is where is” policy, which was acknowledged by it in its next meeting as a necessary clarification by the GST Council.⁶ This was followed up by a formal clarification by the tax administration which inter alia declared this policy measure in the following terms:⁷

4. The phrase “as is where is” is generally used in the context of transfer of property and means that the property is being transferred in its current condition, whatever this condition happens to be and the transferee of property has accepted it with all its faults and defects, whether or not immediately apparent. In the context of GST, the phrase “regularised on as is where is” basis means that the payment made at lower rate or exemption claimed by the taxpayer shall be accepted and no refund shall be made if tax has been paid at the higher rate. The intention of the Council is to regularise payment at a lower rate including nil rate due to the tax position taken by taxable person, as full discharge of tax liability. The tax position of a taxable person is reflected in the returns filed by the person where the applicable rate of tax (or relevant exemption entry) on a transaction/supply is declared.

5. Thus, in cases where the matters have been regularised on “as is” or “as is, where is basis”, in case of two competing rates and the GST is paid at lower of the two rates, or at nil rate where one of the competing rates was nil under notification entry, by some suppliers while other suppliers have paid at higher rate, payment at lower rate shall be treated as tax fully paid for the period that is regularised.

Two niche aspects flow from the aforesaid explanation, which are enlisted below:

1. The “as is where is” basis is a tax policy stance wherein the past tax positions are regularised irrespective of their legal correctness.

2. Wherever “as is where is” basis policy stance is adopted, whatever tax position has been adopted by a taxpayer shall be considered as correct. As the clarification itself states, if there is a “payment made at lower rate or exemption [is] claimed by the taxpayer [it] shall be accepted and no refund shall be made if tax has been paid at the higher rate”.

The net consequence of the “as is where is” policy is, thus, that a taxpayer who paid lower tax is not required to pay the differential amount and the taxpayer who has paid higher tax is not refunded the additional amount.⁸ It is noteworthy that neither the GST Council’s Minutes nor the aforesaid clarification hinges the application of the “as is where is” policy upon the intent or objective of the taxpayer. In other words, it is immaterial whether a taxpayer genuinely believed that low (or no) tax was payable or intentionally defaulted in discharge of correct tax liability. Similarly, a taxpayer who, bona fide, paid additional tax is precluded from seeking a refund of the additional tax paid.

Conceptually, the “as is where is” basis appears to be ironical, if not antithetical to tax policy formulation. As the tax administration itself has clarified, the “as is where is” basis is generally deployed in case of property transactions wherein the seller disclaims any liability on account of any defect in the sale property, shifting the entire onus upon the buyer. If the same philosophy is transposed, the GST Council and the tax administration, by adopting the “as is where is” basis for the past, appear to virtually denounce their responsibility to address the past infractions or deviations of tax laws. Put differently, the tax administration closes its eyes to the taxpayers’ past conduct with inter alia non-payers being absolved without consequences. This appears to be antithetical to the very foundation of fiscal jurisprudence which compels that the plain letter of the tax law has to be observed without regard for consequences.⁹

Critically examining the legality of the policy stance

Besides the questionable propriety of the policy stance, there are certain legal issues which arise on the legitimacy and propriety of the “as is where is” basis policy to regularise past transactions. The main issue is linked to the permanent status quo comparable which is discussed above and reveals the legal fissures in such a stance. In the specific context of “as is where is” basis, the biggest issue is the correctness of the policy insofar as it condones the default in short-payment of tax but refuses to refund the excess collections. The most glaring aspect of the policy is the fact that it creates distinct categories of taxpayers which, though distinctively placed, are treated similarly. We can understand this by way of an illustration.

Let us assume that an interpretation issue exists relating to applicable rate of tax on supply of commodity X. Owing to such confusion: A class of taxpayers pay tax at 12% rate; B class of taxpayers pay no tax; C class of taxpayers pay tax at 5% rate; and “D” class of taxpayers pay tax at 18%. Subsequently the applicable rate is clarified at 12% and the past is regularised on as is where is basis. This would imply that A class of taxpayers are rendered indifferent as their actions are not affected by the clarification. However, Classes B and C of taxpayers are better off as, whether they intended to do so or were bona fide in their conduct, they end up with tax-savings. Class D of taxpayers are, however, worse off because they end up paying tax higher than the correct tax rate, albeit which is clarified later. Woefully still, while Classes B and C of taxpayers are rewarded despite their in-action or incorrect actions in discharge the due tax liability, D class taxpayers are punished because the additional tax discharged is not refunded back notwithstanding the fact that additional taxpayment is duly acknowledged. This aspect points to certain legal infirmities.

A. Discrimination?

What is critical is that the “as is where is” policy is a stance of the executive and it not based in law. Hence, a question arises whether such a policy is tenable. In this context, one is reminded of the decision of the Supreme Court in CIT v. Pepsi Foods Ltd.¹⁰ which has declared, in the specific context of tax legislations, that unequals cannot be treated equally. This case dealt with the validity of a provision under the Income-tax Act which legislatively invalided a stay granted by the Appellate Tribunal in favour of a taxpayer after expiry of a specific time irrespective of whether the delay in disposal of appeal was because of such taxpayer or not or the delay was occasioned due to default of the tax officers. Certain salient features of this decision are noteworthy:

1. In this decision the Supreme Court has declared that even a fiscal legislation can be declared as unconstitutional and it can be “struck down on substantive grounds” where its provisions are “discriminatory as it treated unequals equally”.¹¹

2. The decision further declares that “the expression ‘permissible’ policy of taxation would refer to a policy that is constitutionally permissible. If the policy is itself arbitrary and discriminatory, such policy will have to be struck down”.¹²

3. Tax law and policy, which discriminates a taxpayer so as to punish a non-errant taxpayer akin to an errant taxpayer, is invalid.

Thus, the provision which legislatively annulled the stay granted in favour of taxpayers was quashed by the Supreme Court on grounds of discrimination. The “as is where is” policy treats Classes A to D of taxpayers alike, even though they are dissimilar. Furthermore, it applies irrespective of the intent of the taxpayer. Hence, a contumacious conduct of taxpayer is ignored and refund entitlement of bona fide taxpayer eschewed. More importantly, the “as is where is” policy is implemented by way of a subordinate legislation where the judicial opinion disfavours discrimination even under a statutory provision.

B. Article 265 perspective

There appears to be yet another constitutional infirmity with the “as is where is” basis policy which is pedestal on the treatment meted to D class taxpayers. The “as is where is” clarification acknowledges that D class taxpayers paid an amount in excess of the tax due. Yet it denies them a refund of the excess payment. This aspect needs to be viewed from the prism of Article 265 of the Constitution which declares that no tax shall be levied or collected without the authority of the law. Having clarified as otherwise, there is an acknowledgement by the GST Council and the tax administration that the additional amount collected from D class of taxpayer is neither leviable nor collectable from them. This fact alone is sufficient to trigger the constitutional entitlement given that it is now judicially well settled that without specific provision in statute authorising its collection from a taxpayer, retention of an amount is violative of Article 265 of the Constitution of India.¹³

C. Can Government choose not to collect tax?

It is not just the case of Class D taxpayers being faced with consequences. There appears to be a legal infirmity even qua Classes B and C category taxpayers as the “as is where is” policy appears to be at a critical intersection of the law. This is because — in the above illustration — once is it clarified that the correct rate of tax is 12%, perforce tax has to be collected unless there is a legal basis to forgo the tax short-paid by Classes B and C category taxpayers.

There is a specific provision in the law which empowers the Government to issue a statutory notification extending exemption to the taxpayers.¹⁴ Thus, power exists with the Government to follow the statutory route and waive the tax collection where considered appropriate in “public interest”. However, there is no such power either in the GST Council or the executive to issue a mere clarification and without a statutory exemption notification forgo the collection of the tax which continues to remain short-paid. Pithily put, the benefit extended to Classes B and C taxpayers can be described as an act of “amnesty” or “exemption” but one which lacks statutory authority without a statutory notification and thus can be questioned.

Old wine in new bottle?

By way of an amendment, a provision has been recently inserted in the GST legislations which empowers the Government “not to recover GST not levied or short-levied as a result of general practice”.¹⁵ Under this statutory empowerment, the Government can issue a notification directing that the excess tax shall not be payable in the event it recognises that there was a general practice to not pay or short-pay the tax. This provision appears to have been inspired by similar empowerment to the Government under the pre-GST indirect tax legislations.¹⁶ Thus, there indeed appears to be a legislative power available to the Government to waive the collection of tax in certain situations.

Trouble arises, however, when the scope of this provision is contrasted with the consequences emanating from the “as is where is” basis policy. Firstly, “as is where is” basis policy is flowing from an executive clarification and is not arising from a statutory notification as envisaged in the provision. Thus, the “as is where is” basis policy, on its own, is not having statutory force and consequential lacks enforceability unless an enabling notification is issued. Second, which is a much bigger aspect, once a statutory notification of waiver is issued, it automatically applies across the Board to all taxpayers and accordingly refund situation arises to those who have paid excess tax. This implies that the “as is where is” basis policy is also not aligned to this statutory scheme because it ends up denying refund to Class D taxpayers who would otherwise be entitled to refund under a statutory waiver notification. There are illustrations of specific statutory provisions wherein law disentitles refund.¹⁷ However, whether an executive clarification can deny refund is a proposition susceptible to judicial challenge. In brief, it is difficult to justify “as is where is” policy as having standalone legitimacy in law.

Conclusion

Let bygones be bygones is an acceptable policy leading to truce between warring tribes. One may even be tempted to equate the perpetual tussle between the taxpayers and the tax administration as a war, justifying the adopting of the “as is where is” policy which is similar in effect and tends to close the chapter on past differences between the taxpayers and the tax administration. Thus, as a policy level, the “as is where is” policy can be described as a pragmatic means to obviate lingering issues. In a society governed by rule of law however, the evolution and application of the policies need to be moderated and conditioned in the wake of overarching constitutional stipulations. Thus, while the underlying intent of the “as is where is” policy appears to be a noble attempt to reconcile the difference of opinion between the taxpayers and the tax administration, the contour of its application requires a revisit such that it is in letter and spirit with the constitutional ethos and judicial doctrines.