Sanjeev Pargal
JAMMU, July 7: An Ordinance issued by President Pranab Mukherjee late last night on implementation of Goods and Services Tax (GST) in Jammu and Kashmir, has categorically stated that the Jammu and Kashmir Legislature will have exclusive powers to make laws in respect of imposition of any taxes as enabled by Section 5 of the Constitution of J&K. The Legislative competence of Jammu and Kashmir as guaranteed by virtue of Section-5 of the Constitution of J&K will not be affected in any manner.
The Presidential Ordinance titled “The Constitution (Application to Jammu and Kashmir) Amendment Order, 2017, which was issued late last night on the recommendations of the Union Home Ministry following approval of the Union Cabinet, said: “notwithstanding anything contained in this Order, the powers of Jammu and Kashmir as per Section-5 of the J&K Constitution, shall remain intact”.
It further said that the Legislature of Jammu and Kashmir shall have exclusive powers to make laws in respect of imposition of any taxes as enabled by Section 5 of the Constitution of Jammu and Kashmir.
On setting up of Goods and Service Tax Council, which has to be constituted within 60 days to make recommendations to the Union and the States on various issues of taxes, Jammu and Kashmir has again got special Constitutional provision.
The Ordinance states: “notwithstanding anything contained in Clause 4 to Clause 11 (pertaining to the setting up of Goods and Service Tax Council), for the purpose of any decision impinging on the Constitutional provision relating to the State of Jammu and Kashmir, the concurrence of the representatives of the State of J&K in Goods and Service Tax Council shall be mandatory and the procedure provided under Article 370 shall be followed.
“Nothing in this Article shall affect in any manner whatsoever the Legislative competence of Jammu and Kashmir as guaranteed by virtue of Section 5 of the Constitution of Jammu and Kashmir”.
The President Ordinance stated that no amendment (in the GST Act) shall have effect in relation to the State of Jammu and Kashmir unless applied by the order of the President under Clause (1) of Article 370. It may be mentioned here that Article 370 guarantees special status to the State.
“Notwithstanding anything in this Act (GST), any provision of any law relating to tax on Goods or Services or on both in force in Jammu and Kashmir immediately before commencement of this Act, which is inconsistent with provisions of the Constitution as applicable to the State, shall continue to be in force until amended or repealed by the Legislature (of J&K) or until expiration of one year from commencement of the Constitution Application Order, whichever is earlier.
“Subject to provisions of Article 370, if any difficulty arises in giving effect to provisions of the Constitution as amended by the Constitution Application Order, the President may, by Order, make such provisions, including any adaptation or modification of any provision in the Constitution as amended by this Act or law,” the President Ordinance said.
It added that the amount apportioned to the State shall not form part of the Consolidated Fund of India.
“Where an amount collected as tax levied under Clause (I) has been used for the payment of tax levied by a States under Article 246 A, such amount shall not form part of the Consolidated Fund of India,” the Ordinance said.
Ruling PDP had repeatedly been stating that there will be enough safeguards to protect Special Position of Jammu and Kashmir in the implementation of the GST Act.
Sources said after the issuance of the President’s Ordinance, the State Government introduced J&K GST bill in both Houses of the Legislature, which was approved, leading to implementation of new tax regime in the State.
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