Introduction
The concept of ‘as is’ or ‘as is, where is basis’ has long been recognized in property transactions to denote acceptance of an asset in its current state. However, its application in the context of Goods and Services Tax (‘GST’) compliance has sparked confusion among taxpayers and officers alike. To address these ambiguities, the Central Board of Indirect Taxes and Customs (‘CBIC’), in its recent Circular[i] issued on 11.10.2024 (‘Circular’), has provided much-needed clarity on the scope of this phrase in GST rate regularization. The Circular is based on the recommendations given by the GST Council during its 54th meeting.
Background
Field formations and businesses raised concerns regarding varied interpretations of GST rates due to competing entries in notifications or exemptions. These ambiguities resulted in taxpayers either overpaying or underpaying GST, creating disparities in compliance. The GST Council, acknowledging these issues, recommended in its 54th meeting the regularization of past discrepancies ‘on an as is or as is, where is basis’. In view of this, the Circular was issued to provide clarity and ensure uniformity in interpretation.
1. Legislative Framework
The Circular derives its authority from s. 168 of the Central Goods and Services Act, 2017 (‘Act’), which allows CBIC to issue directions for uniform implementation of the Act. Additionally, the Council’s recommendations under a. 279A of the Constitution of India provide the policy basis for such clarifications. These provisions ensure that past tax ambiguities are addressed without burdening taxpayers or resulting in revenue loss.
2. The Scope of ‘As Is, Where Is Basis’ in GST
The Circular clarifies the phrase ‘as is, where is basis’ in the context of GST as follows:
General Meaning: Borrowed from property law, the phrase implies acceptance of a condition without requiring rectification or refunds. Under GST, this phrase means payments made at lower rates (or nil rates) due to interpretational issues will be accepted as a full discharge of tax liability with no additional payment required for higher rates.
Non-Refundable Excess Payments: Taxpayers who paid higher GST rates will not be entitled to refunds.
3. Key Scenarios and Illustrations
To clarify its application, the circular outlines illustrative cases:
Illustration 1: Regularization of Competing Rates: The lower rate is treated as full compliance, where taxpayers paid either 5% or 12% GST due to genuine confusion. However, in cases where the tax has been paid at a higher rate, no refunds will be issued to the taxpayer.
Illustration 2 - Exemption Entries and GST Regularization: In situations where certain taxpayers have claimed exemption while others have paid GST, the exemption claim is regularized without requiring differential payment. However, taxpayers who paid GST at a lower rate will not receive refunds.
Illustration 3 - No Tax Paid Situations: If GST was not paid due to a misinterpretation and later clarified that a higher rate was applicable, regularization will not apply. Tax authorities are empowered to recover the applicable tax.
4. Implications for Businesses and Taxpayers
The circular provides a safe harbour for businesses affected by ambiguous rate interpretations, relieving taxpayers from retrospective tax demands. However, the circular also establishes certain clear boundaries whereby taxpayers who have failed to pay GST are forbidden from seeking refuge under this clarification. Further, including detailed illustrations ensures transparency and aids in consistent application.
Conclusion
The Circular represents a significant step towards addressing longstanding ambiguities in GST compliance. Regularizing discrepancies based on the ‘as is, where is basis’ offers much-needed relief to taxpayers who acted in good faith but faced interpretational challenges. The provision for non-refund of excess tax payments ensures fairness and discourages frivolous refund claims.
While the Circular simplifies compliance for genuine cases, it also emphasizes the importance of accurate interpretation and timely compliance. Businesses must now thoroughly analyse rate applicability to avoid relying on retrospective clarifications. This circular underscores the importance of clarity and consistency in taxation for policymakers.
The Circular balances revenue protection with taxpayer fairness, fostering a more transparent GST regime while minimizing litigation risks.
End Note
[i] Circular No. 236/30/2024-GST [F. No. CBIC-190354/149/2024-TO(TRU-II)-CBEC], dated 11-10-2024.
Authored by Prashant Singh, Advocate at Metalegal Advocates. The views expressed are personal and do not constitute legal opinions.