After the Indian government amended provisions of the money laundering Act to allow the Enforcement Directorate to share information with GST Network, Shailesh Haribhakti, chairman of Shailesh Haribhakti Associates on Monday said the new notification will allow authorities to instantaneously trace any wrongdoings.
As per the amendment to the provisions of the Prevention of Money Laundering Act (PMLA), 2002, GST Network has been included in the list of entities with which the Enforcement Directorate will share information.
GSTN handles the technology backbone of the indirect tax regime and is the repository of all GST-related information, including returns, tax filing, and other compliances.
CNBC-TV18's Parikshit Luthra spoke to Nagendra Kumar, a former member of GST and CBIC; Shailesh Haribhakti, chairman of Shailesh Haribhakti Associates and Satyendra Singh, former deputy director of Enforcement Directorate to understand the impact of the notification.
Below are the excerpts from the interview.
Q: Do you feel that the current GST law did not have enough teeth to detect fraud in forex transactions? Was this move really needed?
Kumar: GST laws are quite self-contained in dealing with the fake invoice menace in terms of not only arresting the person who are found to be generating fake invoices and thereby creating a false money trail, but also prosecuting them.
The notification now issued under Section 66(1)(ii) of the PMLA Act is to provide a platform for Enforcement Directorate or for that matter, the Financial Intelligence Unit (FIU) coming under the Department of Revenue, Ministry of Finance to share the information with the GSTN for further trailing the GST offense.
Q: We have seen the scope of the PMLA law being increased since November. More than 15 to 17 entities, chartered accountants, company secretaries, and limited liability partnerships, have all been included. The RBI, the IRDAI, the ministry of external affairs, and DGFT, all of them are mandated to share information with the enforcement directorate. How do you see GSTN also being included under PMLA?
Haribhakti: I think it is part of a pattern that is emerging. India started the GST as a digital law and it has been an evolutionary law, which has kind of improved and changed and metamorphosised through consensus. Almost every state participates in the GST Council, and that's how decisions are made.
Now what they are bringing in, is what I like to call information exchange. And because everything is so digital, there is a gathering of important information which is happening in different parts of the ecosystem. What this provision seems to be doing is bringing all of that onto one platform, in order that instantaneously the revenue authorities can track and trace what wrongs are being done- fake invoices or any other malfeasance that is attempted, will get detected faster.
If on detection, the malpractice is curbed, and the action stops at making sure that the tax which has been sort of taken away from the system is restituted that would be a very positive outcome. But the important thing that everybody has been put on notice is that there is no place to hide.
Information and your footprint are going to be visible and is going to be shared and multiplexed using artificial intelligence and data gathering mechanisms which are available to the private sector, no reason it should not be available to the government sector.
So, that's the context in which I see all of these extensions. It is a question of making sure that people ultimately realise that you will have to come clean and you must make sure that compliance is as full and as accurate as possible. That's the way I look at this whole evolution and the spread.
Q: What is the kind of information that the GST authorities will now be sharing or mandated to share with the ED and the financial intelligence unit as well? Will this mean that all cases of fake input tax credit, GST, fake invoices, all of that will be investigated by the enforcement directorate or will it be only those cases that are handed over by the GST authorities to the ED?
Kumar: I want to make one point very clear, that today an offense recognised or acknowledged under the GST Act is not a predicate offense. A predicate offense is one where necessarily a police file an FIR and an investigation is conducted. However, the GST offence could also involve an offence under the IPC in the form of a criminal conspiracy or identity theft or fraud, etc. So parallelly if an investigation is carried out by ED in any one of the GST offences involving a predicate offense as prescribed under IPC or any other law listed in that act, ED can investigate it.
Now coming to the question as to what are additional things the GST authorities will have in relation to this notification issued. I must tell you that the GSTN which has got a repository of the data of the taxpayers, including the registration, the return filing, the payment, etc, would have the advantage of the data which is flowing from the ED to the GSTN. This will not only facilitate in recovering the tax quickly from the fraudsters in terms of identifying the money trail but also facilitate in easy prosecution, etc. But the advantage that will accrue to the enforcement directorate is always there. The GSTN is sharing the data with the FIU and also sharing the data with other sister agencies like CBDT or for that matter, the enforcement wing, etc. through a memorandum of understanding. Now the current notification which has been issued on July 7, facilitates the enforcement directorate to share the information with the GSTN in whose hand the information shared will strengthen in fostering the evidence and tightening the investigation and also investigating the case under GST more effectively.
I also agree that the information sharing happening between the ED and the GSTN would strengthen the investigation not only in the hands of the GSTN but will also help ED to investigate the case more effectively and trailing the proceeds of the crime and also attaching it and taking further action under the PMLA.
Q: Do you also feel there needs to be some checks and balances as well? Over the last several months when the drive against fake GST invoices, and fake input tax credit was on, many e-commerce companies, many internet retailers have been writing to GST authorities the finance ministry about cases where there are virtual offices, about them being penalised, about them being hauled up. Do you feel there needs to be some checks and balances in place, certain clarifications that are needed?
Haribhakti: Absolutely. I think that is the evolutionary process that I was speaking about a little while ago. The idea for all of us, and we are all in this together. We want to make sure that fair taxes are paid, we want to make sure that GST becomes the self-policing, pull-factor kind of law that it was meant to be. And we want to make sure that the honesty of reporting and uploading and making sure that all the obligations are met is done in a responsible manner by citizens.
Where there is any hint of wrongdoing or fraud, it has to come to light as fast as possible. But where there is an interpretational issue, I think it is important to make sure that a chance is given to make sure that there is a fair representation of what the true issues are. If that is put in place that might mitigate all the angst that seems to be growing and all the press comments that we are hearing about this whole thing being moved to the level of harassment.
I don't think that it necessarily should lead to harassment, it should lead to more quick identification of things that are going wrong. And it should serve as a warning to the people who are subject to the GST that they must fulfill their obligations in an honest manner. It's now become clearer, simpler, more easy to comply with the law. And with the information exchange that is all-pervasive, there is no place to hide.
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