Wednesday, 31 July 2013

Likely impact of GST on retail in India

 


The liberalization of the Central Government’s FDI (‘Foreign Direct Investment’) policy on retail in September 2012 was widely hoped as a step that would catalyze investment into the sector. Apart from the high profile IKEA case, results however have not entirely been on expected lines. Multi brand retail players have sought further clarity and relaxation of stringent norms before committing significant financial investment. Approvals for single brand retail trading are coming through gradually as businesses evaluate their investment strategy.


In our earlier two issues[1], we have analyzed the factors from a policy perspective that are influencing corporate investment decisions in the retail sector. In this third issue of BMR Point of view, we focus on the multiplicity of indirect taxes and the GST policy framework, which would have a significant impact on retail investment and operating structures.


Key issues under the existing law and impact of GST


1. Multiplicity of taxes and resultant cascading effect of taxes


Presently, the retail sector in India is subject to multiplicity of indirect taxes. In addition to customs duty, which is levied on import of goods, the following are the other key transaction level indirect taxes, levied by the Central Government, which are relevant on the procurement side:

- Excise duty is applicable on goods domestically manufactured in India.

- Service tax is applicable on services received.

- Research and Development Cess is levied on import of technology / know-how under a collaboration arrangement – the applicability of this ‘lesser known’ cess is laden with ambiguity.


Additionally, the following transaction level indirect taxes, levied by the State Governments, are relevant on the procurement side:

- On every intra-State sale and purchase of goods, the State Governments levy a Value Added Tax (‘VAT’). The rates of VAT may vary from State to State.

- On sales/ purchases involving movement of goods from one State to another (inter-State sales), there is a levy of Central Sales Tax (‘CST’).

- Additionally, several State Governments also levy an entry tax on entry of goods into defined ‘local areas’ within the State.

- Finally, Octroi / Local Body Tax is levied in several parts of the State of Maharashtra – these are taxes on entry of goods into specified municipal areas.


A primary issue arising from this multiplicity of taxes is its cascading effect across the chain. This is because of the limited ability to set-off amounts paid under one tax against liabilities under other taxes – a consequence of multiple authorities with different jurisdictions levying multiple taxes on different aspects of a business. As a basic principle, credit of amounts paid under Central level taxes is not available against liabilities under State level taxes, and vice versa.


Typically, in the retail sector, trading activity attracts an output tax of VAT. Since VAT accrues to the State Government, the entire host of Central level indirect taxes becomes a cost in the supply chain and enhances the total indirect tax cost for a retail chain setting up shop in India. For example, excise duty paid on purchase of goods cannot be offset against VAT payable on intra-State sales.


Even for taxes for which inter se credit / set-off is legally tenable, practical implementation becomes difficult due to stringent norms for credit availment and the rigorous approach of ground level tax authorities. Availability of credit on various inputs and input services is subject to substantiating their direct nexus with the output services / manufacture of goods, which is often contested by the tax authorities. Credit of VAT paid on capital goods is typically not permitted by most States.


A specific mention is also needed for restrictions on credit of various taxes paid on fuel under various State and Central laws. This is surprising since fuel (primarily used by retail sector for captive power generation) is commercially a major input for all kind of goods or services, including retail. Additionally, it is economically significant as fuels are typically subject to levy of higher rate of taxes, both by the Centre as well as most of the States.


Overall, businesses try to adapt to this myriad of indirect taxes and adopt complex supply chains and transaction structures that are essentially driven by tax considerations rather than business imperatives – a clear distortionary impact of taxation. For every retail chain with operations in multiple States, the outlined factors, when combined together, lead to higher tax costs eating into profits in the supply chain. GST is meant to address this inequity.


Impact under GST


GST is a comprehensive tax on manufacture, sale and consumption of goods and services at a national level. GST system in India essentially envisages two taxes – State Level GST and Central Level GST. In principle, credit of GST paid on the procurement of goods and services will be available against the respective GST payable on the output supply of goods or services. Thus, the system envisages continuous flow of credit across all points in the supply chain without any breakage at any point. Most importantly, the focal point of taxation under GST is consumption – it’s the ultimate point of consumption where the tax cost sticks.


As a further step towards ensuring that the incidence of the tax falls on the consumption of commodities without any distortionary or cascading effect and the revenue accrues to the State where the final consumer is located, we expect there should be no distinction between raw materials and capital goods in allowing input tax credit in the GST regime. We also expect that fuels should be subjected only to GST (both Central and State) with the benefit of input credit like any other intermediate good[2].


2. Tax on packing and labeling activities


The present tax regime in India deems packing and labeling activities for a specified category of goods to be a manufacturing activity and therefore, subject to levy of excise duty. Retail sector which inevitably requires packing, labeling, re-labeling, etc at some level, lays exposed to this levy along with the requirement to undertake various attendant compliances. This issue has been a subject matter of debate in the e-commerce segment and it’s only a matter of time that the issue becomes live in other scenarios. For example, where a retail chain procures toothpastes and toothbrushes separately in bulk from manufacturers (who would have paid excise duty on such clearance) and initiates a campaign in their stores where a toothpaste and toothbrush are sold together at a discounted price and for this purpose, loosely put together in some sort of a package. Potential levy of taxes on such processes creates challenges for the retail sector under the present indirect tax regime.


Impact under GST


Here too, GST is expected to usher in a solution. GST would be structured on the destination principle. As a result, the tax base will shift to consumption. Under GST regime, tax would be levied on goods or services at the ‘point of supply’ rather than for undertaking a ‘process’ (like packing / re-packing etc) in relation to supply of goods. Thus, GST would be applicable only on transactions of supply of goods (and services) in the retail value chain rather than on the processes of packing or labeling that may occur at multiple levels. Overall, no additional taxable event is foreseen under GST for similar packing / labeling activities undertaken by retail chains.


3. Double taxation on property management services


Property management services including contracts for housekeeping, engineering, maintenance of facilities, form a major input cost for retail outlets. Under the current indirect tax regime, some confusion exists regarding the levy (VAT and/or service tax) as well as taxable base for levy for such contracts.


This stems from the fact that such contracts, while composite in nature, involve relatively lower value of material supply component and a higher focus on the service element. Service tax authorities seek to charge service tax on entire value of such contracts without giving the benefit of abatements available for ‘works contract’ services. On the other hand, VAT authorities demand VAT on value of goods involved in the execution of such contracts. On account of practical difficulties in substantiating the actual value of materials and services involved for such contracts, application of deemed deduction / abatement schemes often leads to levy of VAT and service tax much higher than actuals.


Impact under GST


Such levy of dual taxes on almost the same taxable base is expected to be mitigated under the GST regime where tax is proposed to be levied on ‘supply’. It is likely that the difference between goods and services for tax purposes would get dissolved under the GST regime and double taxation issues relating to property management contracts may be avoided.


4. Retail price linked valuation issues


While the proposed GST regime may prove to be a panacea for few major indirect tax issues experienced by retail chains, however, certain issues may still remain such as the valuation for tax purposes of packaged goods (procured in bulk) which are taxed on Maximum Retail Price (‘MRP’) basis. Typically, MRP valuation is not attracted is not case of procurements by institutional/ industrial buyers. Only where the pre-packaged goods are procured under the tag of ‘intended for retail sale’, MRP based valuation usually applies.


Impact under GST


The applicability or otherwise of MRP based valuation in different scenarios is an extensively litigated aspect under customs/ excise laws in India and may continue to challenge under the GST regime as well, unless the Government discontinues MRP based valuation post GST. Similarly, valuation related disputes may continue to arise vis a vis various forms of gift vouchers, discount coupons and other promotional schemes under the GST regime as well.

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