This article is written by Yatin Gaur, a student, pursuing B.A.LL.B. from Hidayatullah National Law University. In this article, the author comprehensively discusses the Financial relations between the Centre and state, as provided in the Constitution of India and in the light of the recent 101st constitutional Amendment.
India follows a federal structure where the powers are shared between both the centre and the states. Though however, the distribution of these powers are not equal, and we often find states raising constant concerns about their extreme dependence on the Union Government for all the matters, thus limiting their powers and autonomy. Hence, it is also said that India follows a quasi-federal structure where the central government enjoys more powers over the states.
Similarly in the financial field too, the Union Government is more powerful than the states and though there have been various reforms in fiscal federalism from time to time still there exists a wide variety of issues that needs to be addressed. As in the present situation also the states have to rely heavily on the centre for financial resources.
Article 246 – Subject Matter of Union and States to make laws on Taxation
Article 246 of The Constitution of India, 1949 provides a list of subjects giving power to the different levels of government to make laws on them. Essentially speaking there are three kinds of lists mentioned under Article 246 that are as follows:
The Union Government has the authority to make laws relating to the subject matter given under the list I, called the Union list. It includes taxes like Corporation Tax, Customs and Excise duties and taxes on income other than agricultural income, etc.
The State Government is vested with the power to frame laws on the subjects mentioned under list II, called the state list. It includes taxes on vehicles, liquors, land revenue, entertainment, luxuries, stamp duties and sale or purchase of goods, etc.
While there is another list also known as the Concurrent List, which gives power to both the centre as well as state government to make laws with regards to the subjects provided by the list III. List III does not include any major tax as such. This helps in avoiding the competitive exploitation of the same source by both the authorities and the overlapping of tax-jurisdictions under the Indian Constitution. Further, in the case of conflict, the central government decision will prevail over the State government decision.
Distribution of powers – Levying and collection of taxes
Article 268 to 281 of the Indian Constitution has made elaborate provisions that provide directions to the centre relating to the distribution of financial resources amongst the states. It lays down principles for the centre and states to work in coordination for levying and collection of taxes through systematic arrangements.
The provisions, for the time being, can be summarised as follows but will be explained in detail further. It includes:
- Taxes levied by the Union but collected and kept by the States (Article 268).
- Taxes levied and collected by the Union but assigned to the States (Article 269).
- Taxes levied and distributed between the Union and the States (Article 270).
- Grant-in-aid from the Centre to the States (Article 273, Article 275 and Article 282).
- Sharing of proceeds from other taxes.
In giving recommendations with regards to the distribution of funds between the centre and state, the Finance commission mentioned under Article 280 plays a very important role.
GST Regime – 101st Amendment
The 101st Amendment in the constitution and the introduction of GST in the Indian Economy has significantly changed the landscape of financial relations between the centre and states. Therefore, it is extremely important to have a basic knowledge of what GST is, its application and its different forms.
Position before GST
Before the introduction of GST, there were multiple taxes imposed by the centre and states separately and the distribution of which was confusing and non-uniform. It included Service Tax, Central Excise, Customs duty and State VAT etc. But after the GST, the principle of one nation one tax was adopted.
Position before GST
GST is categorized into CGST, SGST or IGST depending on whether the transaction is Intrastate or Interstate supplies. Let’s understand what does this means:
Inter-state and Intra-state Supplies
i) Intra-State supply of goods or services: In these kinds of transactions, the location of the supplier and the place of supply are in the same state.
ii) Inter-State Supply of Goods and Services: As per the Section 7 of The Integrated Goods, and Services Tax Act 2017 it can be understood that “Inter-state” trade or commerce basically means:
- when the supplier is located in some other state or union territory and the place of the supply is in another state/UT, or
- when the supply of goods or services is made to or by a Special economic zone (SEZ) unit.
Central Goods and Services Tax (CGST)
- CGST is a tax imposed on Intra-state supplies of goods and services and is governed by the CGST Act. Along with this SGST/UTGST will also be levied on the same transaction and shall be governed by the SGST/UTGST Act.
- It implies that in the case of Intra-state supplies of goods and services both CGST and SGST are combined which are collected simultaneously; where CGST goes to the centre and SGST goes to the state.
- The proportion of SGST and CGST is equal.
However, it must be noted that any tax levied on Intra-State supplies of goods and/or services by the centre and state shall not exceed 14% each.
State Goods and Services Tax (SGST)
- The SGST is a tax levied by the state on the Intra State supplies of goods and/or services by the State Government.
- It is governed by the SGST Act.
- As already mentioned above it is levied and collected simultaneously with the CGST.
- In the case of Union territories, it is called UGST and governed by the UGST Act.
Integrated Goods and Services Tax (IGST)
- IGST or Integrated Goods and Services Tax is a tax levied on all Inter-State supplies of goods and/or services.
- It is governed by the IGST Act.
- IGST applies on any supply of goods and/or services in case of both import into India and export from India. Though the exports will be zero-rated.
- Tax obtained under IGST is shared between centre and states as per Article 269A.
The biggest achievement of GST is that it introduced a single uniform tax system with dual tax features where the revenue is shared between both centre and state.
The GST council as mentioned under Article 279 A, shall make decisions in relation to the GST rate, inter supply transactions and other matters related to GST etc.
According to Article 265 of the Constitution of India, the union and state cannot levy or collect any tax except authorised by law.
This basically means that the power of the centre or state government to levy and collect tax is not absolute power; as Article 265 of the Constitution of India imposes certain general and specific limitations on it.
These restrictions can be easily understood after defining the scope of the expressions used in this section.
i) Law: The expression “law” used in this section basically refers to the statute law i.e. the act of the legislature. It essentially means that there must be an existence of expressive legislative provision for the imposition of a tax.
Therefore, the important thing to note here is that a tax cannot be levied merely upon the orders of the executive. As it will not fall within the meaning of this expression. Further, it can also be stated that the passing of a mere resolution by the house will also not be sufficient in the present case. So in order to obtain any tax under the law, the Article requires the legislature to enact a law.
ii) Levy and collection: The use of the expression ‘levy’ and ‘collection’ mentioned under this Article is not only limited that the imposition of a tax must be authorised by the law but rather it is comprehensive and wide enough to include that even the collection of the tax must be sanctioned by the law. Therefore, it basically means that every stage in this entire process must comply with the requirement.
Moreover, a taxing statute must also not be in violation of Article 13 of the Indian constitution i,e. it should not lead to any infringement of fundamental rights enshrined in the constitution. It should not transgress the equal protection clause of Article 14, reasonable restrictions clause of Article 19 or the freedom of trade and commerce guaranteed under Article 301 of the Indian constitution.
In the case of Pratibha R.C.C. Spun, pipe and cement products V/s State of Karnataka, the imposition of a certain tax was rejected in the light of Article 265 of the Indian Constitution. In the instant case, a tax was charged in the pretext of a fee. Since there was no legislative enactment behind the same, the imposition of the tax was considered illegal.
So, to summarise it can be stated that merely an executive order is not sufficient for the levying and collection of a tax and it is mandatory that there must be legislative enactment behind the same. Additionally, apart from the imposition of the tax, even the recovery of the same must also be authorised by the legislature through a statue or act.
Article 266- Consolidated Funds and public accounts of India and of the States
Article 266 of The Constitution of India focuses on the “Consolidated Funds and public accounts of India and of the States”. It lays down the definition of consolidated funds and public accounts.
As per the clause (1) of Article 166, Consolidate funds is a fund consisting of all the:
- The revenue received by the Government of India.
- Loans raised by the Government through issuing of treasury bills, advances, recovery of loans etc.
Exception: It excludes the items of Public funds mentioned in Article 266 and items of Contingency funds contemplated under Article 267 of the Indian constitution. It also does not include certain other provisions of Chapter XII of the constitution of India, which deal with the assignment of the whole or part of the net proceeds of some specific taxes and duties to States.
Explanation: Essentially speaking it is the Consolidated Fund mentioned under Article 266(1) which is generally called as the budget.
- It includes all the revenues received by the Government, receipts of interests and repayment of the loans given by the Government, and all the advances or new loans raised by the Government.
- All the expenditures of the Government are met through the Consolidated Fund except in cases of unforeseen circumstances.
- Further, no amount of money can be taken out of consolidated funds by the Government without the authorisation from the parliament.
Consolidated funds in a state
Similar to the consolidated funds in India there are consolidated funds in a state as well. It includes all the revenue received by the Government of a State, all loans, advances or money received by the Government in repayment of loans etc. Further, all the above exceptions are equally applicable here also.
Taking out money from Consolidated fund
As per clause (3) of Article 266, the money out of the Consolidated Fund of India or the Consolidated Fund of a State can only be appropriated upon satisfaction of the following conditions:
- It must be in accordance with the law.
- It must have been used for the purpose intended.
- It should have been appropriated in accordance with the manner provided in the constitution.
As per sub-clause (2) of Article 266, public funds shall be constituted of all the other public revenue obtained by the Government of India or the Government of State, or on the behalf of the Government. Such money received as the case may be either included in the public account of India or in the public account of the state.
It basically includes certain specific transactions, such as small saving collections, provident funds, etc. In the case of public funds, the Government is performing the duty similar to a banker as the funds kept in the Public Account does not belong to the Government, and the Government will have to pay back this money in future to the persons and authorities who have deposited it. Therefore, there is no requirement of obtaining any authorisation from the parliament before withdrawing money from the public account.
Article 267- Contingency Fund
Contingency Fund is defined under Article 267 of the Constitution of India,1949. Provisions under these Articles are:
Contingency Fund of India
As per this article, the Parliament by the authority of law may constitute a contingent for the purpose of meeting urgent or unforeseen circumstances fund titled as the ”Contingency Fund of India”.
Nature of the fund: The fund is in a form of imprest and the Parliament may make law regarding the sum which has to be deposited from time to time in the fund.
Approval: The fund is under the disposal of the President of India and it does not require any prior sanction or approval from the Parliament. Though afterwards, the expenditure needs to be authorised by the Parliament under Article 115 or Article 116.
Further, with the approval of the parliament, the Government has to replenish the contingency fund by drawing out an equal proportion of sum from the consolidated fund.
Contingency Fund of the State
Similarly, the legislature of a state may also establish a “Contingency Fund of the State” for the same objective i.e. urgent or unforeseen circumstances.
Nature of the fund: The fund is in a form of imprest and the State legislatures may make law regarding the sum which has to be deposited from time to time in the fund.
Approval: The fund is under the disposal of the Governor of the State and it does not require any prior sanction or approval from the State Legislature. Though afterwards, the expenditure needs to be authorised by the Legislature of the State under Article 205 or Article 206 of the Constitution of India.
Further, with the approval of the State Legislature, the Governor has to replenish the contingency fund by drawing out an equal proportion of sum from the consolidated fund.
Article 268- Duties levied by the Union but collected and appropriated by the State
Article 268 refers to stamp duties levied by the Union but collected and appropriated by the States. It includes stamp duties on bills of exchange, cheques and promissory notes as levied by the Government of India.
These taxes are not included in the consolidated fund of India and appropriated by the same state in which it was levied thus do not contribute to the Consolidated Fund of India, While in the case of Union territories the fund shall be appropriated to the Government of India.
Further, as per the article, all the decisions regarding levying and appropriation of these duties rest with the central government as it forms a part of the union list.
The Indian States have been repeatedly raising their concerns regarding that the centre is not optimally allowing the state to exploit the taxation resources mentioned under Article 268 and Article 269. Especially with regard to letters of credit, bills of lading, and the policies of general insurance, which results in limiting the tax resources of the states and their further development.
Experts have been suggesting that the scope to raise more resources under Article 268 and 269 must be freshly examined. As it was last reviewed by the VIII Financial Commission in 1984. Thus, it has become important to define the scope in order to meet the present requirement.
With the 88th Amendment in the constitution, a new provision 268 A was inserted in this article which brought service tax within its ambit. But it was again excluded by the 101st Amendment in the Constitution and with the introduction of GST. Further, it also omitted the duties of excise on medical and toilet preparation, which were earlier included in this article but now amalgamated under GST.
To summarise it can be said that following are some key elements of Article 268:
- It imposes a certain types of stamp duties.
- It is levied by the centre but collected and appropriated by the States.
- It forms a part of the Union list and does not form the part of the consolidated fund of India.
- The scope of the revenue obtained under this Article is limited which has been further reduced by the 101st Amendment.
Article 269 Taxes levied and collected by the Union but assigned to the States
Subclause (1) of Article 269
Article 269(1) includes all the taxes on the “sale or purchase of goods“ and “taxes on the consignment of goods” except those included in Article 269 A. These taxes are assigned to States as provided by the law but are collected and levied by the Government of India.
1) The expression “taxes on the sale or purchase of goods” does not imply on all kinds of trade but essentially refers to the taxes that are levied on inter-state sale or purchase of all kinds of goods except newspapers.
2) The expression “taxes on the consignment of goods” refers to tax duty levied on the consignment of goods when happening in the course of Inter-state trade. It includes both the cases even when the consignment is to the person making it or to any other person.
It may include:
- Succession Duty
- Central Sales Tax
- Estate Duty etc
Subclause (2) of Article 269
Article 269(2) lays down that the revenue obtained from such tax is distributed between states (except in case of Union territories where it goes to the central government), It does not form the part of the consolidated fund of India. The manner of the distribution is to be prescribed by the Parliament.
Subclause (3) of Article 269
Article 269(3) further explains that the parliament has the power to define the scope of what constitutes the sale, purchase or consignment of goods in the course of inter-State trade or commerce.
To which state the Inter-state tax (IGST) goes?
Further in Inter-state commerce and trade i.e. Central tax collected goes to the consumer state. This can be easily understood with the help of the following example.
For instance, if there is a jute bag manufactured in West Bengal and it is then exported to Orissa. As the goods involved here are transported from one state to another. Thus, IGST will be applied. We are also aware that, in IGST both the centre and state have their own share. As in the present case, West Bengal is the producing state and Orissa is the consuming state thus, the share of IGST will go to Orissa.
After reading all the clauses as a whole we can conclude that:
- It is a tax levied on all the Inter-state sale, purchase and consignment of goods ( except on the goods mentioned under Article 269 A and newspapers.
- The tax is collected and levied by the Central Government but appropriated by the State Governments.
- The amount collected from the Inter-state trade is appropriated to the consuming state.
- The power to lay down laws regarding the Inter-state and commerce and the distribution of share rests with the parliament only.
- The tax collected under this article does not form the part of the consolidated fund of India.
Article 269 (A) – Position in GST Regime
With the latest 101st Amendment a new article 269 A was inserted which brought some considerable changes.
Subclause (1) of Article 269
Article 269A(1) basically involves the following aspects:
- Levying and collection of goods and services tax (GST).
- It applies in the case of inter-State trade or commerce.
- The tax collected shall be appropriated between the States and the Union.
- The Parliament has the power to lay down the law regarding the sharing of taxes collected under this article as per the recommendations of the Goods and Services Tax (GST) Council.
The Parliament, in Section 17 of the Integrated Goods and Services Tax Act, 2017 in the exercise of its powers provided in Article 269A(1) of the Constitution has provided the manner in which integrated tax collected by the Union under the IGST Act can be apportioned in between the Union and the States.
Import of goods is a tax on supply
Article 269A(1) is followed by an explanation that in the context of India, all the imports of goods and services in the course of inter-State trade, shall be deemed to be considered as the part of the supply of goods and services.
Position after GST
This authorises the central government to levy IGST instead of CVD (countervailing duty) on the import transactions after the 101st amendment.
Position before GST
Before the introduction of GST, instead of IGST, CVD was applied in the case of inter-state trade or commerce. This was a specific form of tax that was imposed by the Government of India for the protection of domestic producers and to mitigate the adverse impact of import subsidies.
Amount collected shall not form a part of Consolidated fund
Article 269A(2) further provides that the amount appropriated to the state by the procedure contemplated under clause (1) will not form a part of the consolidated fund of India and shall directly be given to states.
Subclause (5) of Article 269(A)- Parliament will make laws on the Inter-state trade and commerce
Article 269A(5) deals with conferring the parliament certain powers to determine the scope or to decide the place of supply, as regards to when the supply of goods or services will constitute inter-State trade or commerce.
Supreme court on Inter-state trade
In the case of State of Andhra Pradesh v. National Thermal Corporation Ltd., 2002, The Supreme Court pronounced that in the purview of Section 3 and Section 6 of Central Sales Tax Act, 1956., movement of goods to some other state, after completion of the transaction within the State will not amount to inter-state trade or commerce.
Therefore, the court dealt with a very important question in this case; which defined the scope of what will constitute inter-state trade which is explained as follows:
1) When in the terms of the contract itself expressly or impliedly stipulates the condition regarding the inter-State movement of goods;
2) Further only existence of such term will not be sufficient itself rather there must be some actual movement of goods from one State to another pursuant to such contract;
3) The goods must be moved from one state to another and the contract of sales must conclude in another state only.
In the case of Goodyear India Ltd. V. State of Haryana,1989, the question before the court was to decide upon the legitimacy of two sales tax acts dealing with the consignment of goods. The court stipulated that Section 13AA of the Bombay Sales Tax Act, 1959 and Section 9(1) (b) of the Haryana General Sales Tax Act, 1973 prescribing rules regarding the tax on consignment goods were beyond the scope of power of respective State Legislatures. As the power to tax inter-state trade rests only with the Parliament, hence the aforementioned sections were held invalid in the eyes of law.
Article 270- Taxes levied and distributed between the Union and the States
Article 270 of the Indian Constitution basically deals with the subject of how the taxes are levied and distributed between the Union and the states.
Clause (1) of Article 270
It lays down the procedure of the appropriation for certain taxes i.e. all the taxes except those mentioned under Article 268, 269 and 269A and any surcharge on taxes and duties mentioned in Article 271 or, any cess levied for a specific purpose, other than these the provision holds true for every other tax.
- These taxes are levied and collected by the Union.
- The tax shall be distributed between the States and the Central Government.
- It may include taxes such as:
- Excise Duty on Non-GST products
- Income Tax
- Basic Customs Duty etc.
4. The manner for this distribution is provided under Article 270(2).
But before proceeding with understanding the manner of distribution as provided under Article 270(2), Let us first study what changes the 101st Amendment brought to this Article and what are its implications.
Position after GST
The 101st Amendment inserted two new subclauses Article 270(1A) and Article270(1B) under this article. It basically lays down how the scope of the tax to be distributed between Centre and State has been modified after the introduction of GST.
As per this Sub-clause, tax collected by the Central Government under clause (1) of Article 246A of the Indian Constitution will also be distributed between the centre and the state as per the method provided under Article 270(2).
246A(1): In simpler terms, it can be said that clause (1) Article 246A of the Indian constitution empowers both the Parliament and State Legislature to make laws with respect to the goods and services tax when the trade is happening within the state i.e. Intra-State.
Hence, this Sub-clause when read along with Article 270(1A), implies that the taxes collected under Article 246A(1) shall also be distributed between the states and the Union.
According to Sub-clause 270(1B), the following taxes collected by the Central government will also be distributed between Centre and States.
- The amount apportioned to the Central government in IGST shall also be distributed to the states i.e. the central portion in IGST. It is the tax collected by the Central Government under clause (1) of Article 269.
- Taxes collected under IGST which has been used for payment of CGST.
Clause (2) of Article 270
This clause lays down that the central tax obtained by the government as mentioned in clause (1) shall be distributed between the states as per the time and manner provided under clause (3) and such share will not form the part of the consolidated fund of India.
Clause (3) of Article 270
According to Article 270(3), all central taxes formed in one central pool shall be distributed in the manner prescribed by the President of India as per the recommendations of the Finance Commission. For the operational period of 2015-2020, the share of the states in the net proceeds of the Union tax revenue was 42%.
Centrally administered Union territories
In the case of T.M. Kanniyan v. Income Tax Officer, Pondicherry,1967, the Supreme Court held that Income tax as per the application of Article 270 forms a part of the consolidated fund of India. Further, the court opined that it is not necessary to distribute income tax to Union territories which are centrally administered by the President.
The court also stipulated that the purpose behind Article 270 is to ensure equitable distribution of the financial resources between the Centre and the State.
Article 271 – Surcharge on certain duties and taxes for purposes of the Union
Article 271 has the following key elements:
- Parliament has the power to increase any duty or tax anytime by levying a surcharge except in the case of GST mentioned under Article 246A.
- All the proceeds obtained from the surcharges will be part of the consolidated fund of India.
- All the amount from such an increase in tax shall be retained by the parliament and it is not shared amongst the states.
- The Article has its basis to Section 137 and Section 136(1) of the Government of India Act, 1935.
- Further, no authority has the power to prevent the Parliament from imposing a surcharge.
In the case of Ved Vyas Chawla vs The Income Tax Officer,1964 Allahabad High Court while deciding upon a writ petition questioned the imposition of an additional surcharge being violative of Article, the court observed as follows:
- The court held that the word “at any time” used in the article is very significant. This empowers the government to levy a surcharge from time to time. That is if the parliament had imposed a surcharge in one shape does not prevent it to modify or impose the surcharge in another form in order to meet the changing needs.
- The parliament can even levy a surcharge only on a particular class as well and not overall public in general. But it is essential the particular class must have some real and substantial difference from the rest of the others. Further, it is also necessary that the act of imposition of the additional surcharge must have a reasonable nexus with the objects it sought to achieve.
Article 273 – Grants in lieu of export duty on jute and jute products
According to Article 273, the Government of India before independence provided the provision regarding the sharing of net proceeds of the jute export duty with the jute growing provinces. But under the constitution, the states are not entitled to obtain any apportion of such duty.
The Provision specifies that for a period of 10 years from the commencement of the Constitution, the jute growing states of West Bengal, Bihar, Orissa and Assam will receive grants-in-aid from the Union from the share of the jute export duty. But as this provision was applicable only up to 10 years after the commencement of the constitution, so now this Article does not hold any relevance.
Article 274- Prior recommendation of President required to Bills affecting taxation in which States are interested
As per this article, any bill or amendment on the following listed subject matters cannot be moved or introduced in either house of the Parliament before a prior sanction from the President which include bills/amendments dealing with:
- The imposition or varying of any tax within which the States are interested; or
- It modifies or changes the meaning of the expression “Agricultural Income” as laid down in the Indian Income-Tax Act; or
- It lays down, modifies or amends any principle by which money is distributed to the States; or
- It levies a surcharge on the state taxes for the purpose of the Union.
The clause(2) under Article 274 provides the definition of the term “ tax or duty in which states are interested” which can split into two-parts:
- any tax or duty the whole or part of the net proceeds of which are assigned to any State; or
- Net proceeds of any tax or duty that are actually part of the consolidated fund of India but for the time being, assigned to the States.
Grants from the Union to certain States
Apart from the distribution of taxes between the Centre and the States, there are certain articles in the Constitution which provide the scope for Grants-in-aid.
Under Article 275 and Article 282, the Parliament may make grants-in-aid from the Consolidated Fund of India to such States as are in need of assistance, particularly for the promotion of the welfare of tribal areas, including a special grant to Assam.
Types of Grants
Essentially speaking there are two major types of grants that are Statutory grants and Discretionary grants.
- Statutory grants are provided under Article 275 of the Constitution of India.
- While discretionary grants are provided under Article 282 of the Constitution of India.
Article 275 – Statutory grants
These grants are given by the Parliament to the specific states who are in need of assistance.
- Under this, different amounts of grants are fixed for different states.
- The amount is given out of the consolidated fund of India.
- There are two provisos to clause (1) dealing with the granting of aid to the states for any developmental scheme approved by the government of India for the welfare of scheduled areas and scheduled tribes, with a special focus to Assam.
According to clause (2) of Article 275, any order made by the Parliament regarding the grants-in-aid as provided under clause (1) shall need a prior recommendation of the Finance Commission.
Further, it also lays down that the Finance Commission has the power to make recommendations other than those which are mentioned in provisos to clause (1).
Article 282- Discretionary Grants
As per Article 282, the Centre upon its own discretion can grant aid to certain States for the public purpose. These grants are not compulsory in nature. The centre used to make these grants on the recommendations of the planning commission. Further, during the planning commission era, the sum under discretionary grants were even bigger than the statutory grants.
Article 276- Taxes on professions, trades, callings and employments
Article 276 empowers a state or other local authority to impose taxes on professions and trades. But the total amount payable under any such tax shall not exceed two thousand and five hundred rupees per annum. Earlier this limit was up to two fifty rupees only and was raised after the recommendations of the Sarkaria Committee in 1988.
Tax levied if exceeded the permissible limit
In the case of Commissioner, Quilon vs M/S. Harrisons & Crosfield Ltd,1964, the Kerala Government imposed Kerala Profession Tax, 1958 which was held ultra vires by the Supreme Court of India. As the Kerala legislature was incompetent to impose a tax exceeding the permissible limit. Thus, being violative of Article 276 was held unconstitutional accordingly.
The overlapping situation with Union List
In the Case of B.M. Lakhani v. Municipal Committee,1970, two important observations were made by the Supreme Court that are as follows:
- The suit for refund of money paid in excess than the amount prescribed under Article 276 is maintainable in law.
- Though there is a limitation or cap on the amount of tax to be levied but no such bar exists on the exercise of this power by the state or local bodies. Further despite the fact that the subject of income tax is mentioned in the Union list. But the Constitution allows such overlapping under Article 276.
Article 277 – Saving of Pre-Constitutional laws
According to Article 277, if any taxes, duties, cesses or fees which were lawfully levied by the Government of any state, municipality, or local bodies before the commencement of the Constitution shall be continued even after the commencement. It will not be affected by the fact that the same subject is now a part of the Union list. Though however, it will be continued only till the Parliament does not make any law to the contrary.
Object: In the words of renowned Indian Jurist, Durga Das Basu, it can be said that the object of this article is to ensure that there will be no dislocation or disturbance in the taxes or finances of local government and authorities by reason of the commencement of such constitutional changes so, to minimise the chances of a conflict.
Scope: The scope of this article is very limited and cannot be applied in cases where there has been no shift in the distribution of taxation powers between the State and the Union under the Constitution.
One important thing to take into consideration here is that Article 277 is a specific provision concerning the validity of pre-constitutional laws restricted to taxes, duties, fees or cesses. While Article 372 of the constitution is for all the pre-constitutional valid laws in general.
No alteration or increase in the pre-constitution taxes, duties or fees
In the instant case of The Town Municipal Committee vs Ramchandra Vasudeo Chimote, 1964, the Municipality of Amravati used to impose a terminal tax on goods, except in case of gold and silver under a particular law passed before the constitution.
However, after the constitution of India came into force this power was given to the Parliament under Entry 89 of list 1. But it happened that the Municipality issued an amending notification after the commencement of the constitution and also includes gold and silver within the ambit of terminal tax.
The Supreme court pronounced that, the action of the municipality was violative of Article 277 as the municipality was incompetent to increase or alter the incidence of the pre-constitutional taxes. Thus, the action of the Municipality was held illegal by the court.
Pre- constitutional taxes or fees after the Parliament makes a law to the contrary
In the case of Hyderabad Chemical and Pharmaceutical Works Ltd. V. State of Andhra Pradesh,1964, the appellants had a pharmaceutical company where they manufactured medicines by using alcohol. The company was required to pay certain fees to the State government as per the rules laid under the Hyderabad Akabri Act.
Thereafter, the Parliament passed the Medicinal and Toilet Preparations Act, 1955 which exempted them from paying such fees. The appellant thus challenged the imposition of the fees and contended that no such tax can be levied as per Article 277 and by the virtue of entry 84 of list 1.
The Supreme court pronounced that Hyderabad Act must be deemed to have been repealed after the passing of the law by the Parliament. Further in the judgement the court also distinguished between the definition of tax and fees.
A tax is a sum levied by the government for the public purpose without any specific reference or purpose, that the funds obtained under it will be utilised by the state for what kind of services. Whereas the fee is an amount imposed by the State in respect of specific services performed for the benefit of the individual In simpler words, it can be understood that a fee is the payment made for some special benefits while tax is paid for a common benefit conferred by the Government on all tax-payers.
Article 279- Calculation of net proceeds
Article 279 basically defines the net proceeds of a tax. As per clause (1) of this article, all the earnings from the taxes excluding the cost of the collection will constitute the net proceeds of India.
Further, it provides that the net proceeds of a tax or duty, in whole or in part or of any area will be certified by the Comptroller and the Auditor General of India and the decision of the CAG shall be final subject to conditions mentioned under clause (2) of the Article.
Article 279 A- GST Council
Article 279A empowers the president of India to constitute a Council named Goods and Services Tax Council (GST Council) within 60 days after the commencement of the 101st Constitution Amendment Act, 2016.
It shall seek to ensure a uniform system of GST to avoid any conflict or confusion, and the development of a harmonized national market for goods and services.
Composition of GST Council
The members of the council will be as follows:
- The Union Finance Minister of India will serve as the chairperson of this council.
- The respective states will nominate the State Finance Ministers/ or any other Minister as the member of the council.
- The Union Minister of State in charge of revenue or finance will also be a member of this council.
- The representatives of the states shall choose amongst themselves one “Vice-president”.
Quorum and powers
The council shall meet from which one half of its member will constitute a quorum, which will have the power to make decisions on the following listed matters:
- Threshold exemption limit i,e. the turnover below which goods and services will be exempted from GST.
- Rate of GST to be levied, and special provisions with respect to the states of Arunachal Pradesh, Jammu and Kashmir, Assam, Meghalaya, Manipur, Nagaland, Mizoram, Sikkim, Tripura, Himachal Pradesh and Uttarakhand, categorised as special-category states.
- Laws on the model of GST, rules for determining Inter-state supply transactions and determining the place of supply or any other matter.
Further, the GST Council is also empowered to establish a mechanism to adjudicate any dispute between the Centre and the States or between any States.
Process of Decision-making
The decision shall be taken by at least three- fourth majority out of which:
- The vote of the Central Government will have one-third of the weightage.
- The vote of all the State Governments shall account for two-third of weightage.
Process of Ratification
Article 368 of the Indian Constitution has been amended to include Article 279 A within its ambit. It basically implies that to bring any amendments or modification to Article 279 A, ratification by a two-thirds majority of both the houses and half of the state legislatures will be required.
Article 280-Finance Commission
Article 280 of the Indian Constitution is a very important article as it deals with the Finance Commission of India. It lays down the composition, power and functions of the finance commission. The idea of the finance committee has been borrowed from the Common-wealth Commission of Australia.
As per Article 280, the President has the power to set up a Finance Commission after a period of every five years. The Finance Commission will assist the President by making recommendations to him regarding the distribution of net proceeds of taxes to be divided between the centre and the states.
The object of setting up the Finance Commission is to ensure an equitable distribution of funds between the Centre and state so that neither there is any impairment to the autonomy of States nor to limit the revenue resources of the Centre.
Constitution of Finance Commission
The composition of Finance Commission is mentioned under the Finance Commission Act, 1951 which when read with provisions of Article 280 lays down that the Commission basically consists of five members out of which there will be one Chairman, as appointed by the President of India. The criteria for selection of the Chairman is that he/she should have a special understanding of public affairs while the members shall possess the following qualifications:
- He/she may be either a judge of a High Court or qualified enough to be appointed so.
- He/She must have deep knowledge of the finance and accounts of the Government.
- He/She must be experienced in the field of financial matters and in administration; or
- He/ She must have a special understanding of economics.
Functions of the Finance Commission
The Finance Commission has the following functions which involve recommending the President regarding:
- The distribution of the net proceeds between the Union and the States and allocation of such proceeds between different States.
- To lay down guidelines concerning the grants-in-aid of the revenue of the states out of the Consolidated Fund of India.
- The suggestions on augmentation of the consolidated Fund of a state to supplement the resources of the Panchayats and Municipalities in the State.
- Any other matter in the interest of sound finance.
Powers of the Finance Commission
The Finance Commission has all the powers of a civil court conferring it with a power to summon the witnesses, requiring any person to furnish any information, production of documents or any point that the Commission regards relevant or useful.
Significance of the Finance Commission
- Finance Commission has played an imperative role in strengthening and improvising the fiscal federal structure of India. With the setting up of a new Finance Commission after every five years, and each time the recommendations have been made wider.
- Further, the Union Government has also adopted a liberal attitude and been receptive towards the recommendations of the Finance Commission and accepted them at large.
- The Commission along with giving recommendations on the subjects already mentioned has also suggested and gave its views regarding various other financial issues such as returns of the public undertakings, debt burdens of the States.
- It has also settled many complicated financial issues from time to time-related to financial issues between the Union and States. Thus, all in all, the Finance Commission has been successful in bringing dynamic and progressive changes in the financial relations between the Centre and the States as per the changing time.
However, there still have been demands from the states that more resources must be allocated to poor states than rich states in order to level inter-regional financial disparities.
Article 281-Recommendations of the Finance Commission
Article 281 defines the process of how the recommendations of the Finance committee will be introduced in parliament. As per this article, the President of India shall cause to lay down all the recommendations made by the Finance Commission under the provisions of this Constitution along with an explanatory memorandum before each House of the Parliament.
Borrowing powers of Centre and State
Article 292 and Article 298 of the constitution confer both the Centre and the States the power to borrow. However, there is a huge disparity between the scope of powers of the State and Centre. The borrowing powers in the constitution are similar to what was defined in the Government of India Act 1919 and Government of India Act, 1935.
Borrowing power of the Central Government
The Central Government has almost unlimited powers in terms of borrowing. The law imposes no restrictions on the Centre in relation to both national and international borrowing. It is subject to only some restrictions which are to be fixed by the parliament by the law (Article 292).
Borrowing Power of the State Government
In India, the borrowing powers enjoyed by the state government are much less in comparison to the Central Government. As there are various kinds of territorial and other limitations on the borrowing powers of the state.
The Indian States are not allowed to raise loans outside India and only have the option to raise loans either from the Government of India or through public loans. But essentially speaking, it is a very difficult and lengthy process for the State to raise a public loan, as it essentially needs a prior consent of the Government of India which cannot be issued if a part of a loan advanced to the State by the Union government or any guarantee in respect to it is still outstanding.
This leaves the States having no independent borrowing powers. It compels the states to comply with numerous conditions resulting in extreme dependence on the Central Government’s permission to obtain loans from the public, financial institutions or from the Centre itself.
Therefore this inequitable distribution in borrowing power is still an issue and a prime concern which needs to be addressed keeping in mind the changing dynamics of the financial relations between the States and the Centre.
Moreover, the Centre is also allowed to run up the deficits by borrowing from the Reserve bank of India (RBI). While in case of states they have to adhere to the overdraft limit laid down by the RBI. Further, the external credits sanctioned for State projects are not entirely allocated to the States on the same terms and conditions.
Effect of Emergency on Centre-states Financial Relation
During National Emergency
The President in situations of Emergency can order that all grant-in- aids received by the states by the Union shall remain suspended. However, such suspension is only temporary in nature and cannot go beyond the expiration of the financial year in which the Proclamation of Emergency ceases to operate.
During Financial Emergency
The Centre-States financial relations changes considerably in case if Financial Emergency is imposed as per Article 280 of the Indian Constitution. In such cases, the Centre becomes so powerful and exercises immense control over the States compelling them to observe certain norms of financial propriety and other essential safeguards. The Union government can give the following mentioned directions to the States-
- It includes directions to State Governments regarding the reduction of the salary and allowances of all the employees engaged in service of the State which even includes judges of the High Courts.
- In situations of Financial Emergency, the President has the power to make an alteration in the distribution and allocation of taxes from the Centre to the States and to direct the States to observe principles of Financial propriety as laid down by the Parliament.
- Further directions can also be issued compelling the states to reserve the consideration of the President on all financial and money bills even after they have been passed by the State Legislature.
After making a comprehensive study on financial relations between the Centre and State through a detailed discussion over the various ways of distribution of revenues between the Centre and State, the subject matters mentioned in the three lists, various types of government funds in India, GST and its implications, the role of finance commission and GST Council, and the borrowing power of the States. We are in a position to draw out the following conclusion.
Undoubtedly we can say that no state can afford to work without the active financial assistance of the central government. It is also an undeniable fact that Indian states do enjoy relatively a lower degree of economical independence as the dependence on the Centre is indeed much greater than any other federations in the world which can also be substantiated by considering the following points:
- First and foremost, that state does not have power under the constitution to obtain any foreign assistance and any foreign assistance which is quite massive is channelised through the central government. So any decision regarding allocation of such assistance rests in the hands of the Union Government.
- Secondly, there is no provision in the constitution which enables the states to sign any agreement with any international agency or organisation.
- Thirdly, the Central Government has the power to bring any subject from the State to the concurrent list thereby depriving the former of many of its financial resources.
So there are always some chances that the centre Government may do partiality in the distribution of financial resources in order to confer extra benefits to the political parties of their choice. Therefore, they may use this power for their own political gains.
However, the future seems bright as the Finance Commission has always been very liberal and receptive to the demands of the states and giving recommendations on the distribution of taxes and other financial concerns like state borrowings and State debts etc. Moreover, the efforts of the Central Government in bringing GST and establishment of the GST council are appreciable as it brought much more clarity and uniformity in the taxation. This essentially will lead to an increase in the revenues in the long run.
We can finally conclude by saying that all these loopholes in the federal structure can be easily solved, if both the Centre and State Governments show a higher degree of cooperation, putting in sincere efforts to work in harmony keeping their political motives aside.
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