Starting January 1, 2022, several key amendments in the goods and services tax (GST) regime will be implemented as some of the provisions of Finance Act 2021 have been notified to be implemented. Also some other changes have been made based on the recommendation of the GST Council in its 45th meeting. The list of changes being made effective from 1st of January, 2022 is as below:
Goods and Services Tax Act 2017
Change 1: section 7, in sub-section (1), after clause (a), the following clause shall be inserted and shall be deemed to have been inserted with effect from the 1st day of July, 2017, namely:
"(aa) the activities or transactions, by a person, other than an individual, to its members or constituents or vice-versa, for cash, deferred payment or other valuable consideration.
Explanation.- For the purposes of this clause, it is hereby clarified that, notwithstanding anything contained in any other law for the time being in force or any judgment, decree or order of any Court, tribunal or authority, the person and its members or constituents shall be deemed to be two separate persons and the supply of activities or transactions inter se shall be deemed to take place from one such person to another;".
Comments: The Government made a retrospective amendment in the GST law by way of inserting clause (aa) to Sec. 7(1) of the CGST Act, 2017 which deals with the scope of supply chargeable to tax to the effect that the activities or transactions, by a person, other than an individual, to its members or constituents or vice -versa, for consideration shall be included in the scope of supply and hence shall be leviable to tax.
An Explanation has also been inserted to introduce a deeming fiction to provide that such person and its members or constituents shall be deemed to be two separate persons and the supply of activities or transactions inter se shall be deemed to take place from one such person to another.
The aforementioned retrospective amendment shall be deemed to have been made with effect from the 1st day of July, 2017.
Therefore, the clubs/associations should review their affairs in respect of the given issue and determine the liabilities to be discharged and other consequential issues as regards the claim of ITC as well as the applicability of interest in respect of delayed payment of tax.
Change 2: In section 16 of the Central Goods and Services Tax Act, in sub-section (2), after clause (a), the following clause shall be inserted, namely: "(aa) the details of the invoice or debit note referred to in clause (a) has been furnished by the supplier in the statement of outward supplies and such details have been communicated to the recipient of such invoice or debit note in the manner specified under section 37;".
Comments: Sec. 16(2) of the CGST Act, 2017 deals with the conditions to be fulfilled to be eligible for ITC. An amendment has been made in the law by way of inserting a new clause (aa) to the said Sec. 16(2). The new condition mandates that ITC shall be eligible only if the details of the invoice or debit note has been furnished by the supplier in the statement of outward supplies i.e. GSTR 1 and the same have been communicated to the recipient of such invoice or debit note in the manner specified under section 37.
The said amendment is a prospective amendment and hence shall come into effect from 01.01.2022. Therefore the eligibility of ITC to be availed on and after 01.01.2022 shall be determined taking the new condition into account.
The given amendment validates that furnishing of the details in GSTR 1 was never a condition to determine the eligibility of ITC prior to 01.01.2022.
It is expected that now the addition of the new condition mandating the furnishing of the details in GSTR 1 in order to be eligible for ITC will lead to the removal of even the 5% limit that is presently available under the given Rule.
It is highly advisable to avail ITC only if the details in relation to invoices or debit notes have been furnished by the supplier in the statement of outward supplies i.e. GSTR 1 and the same have been communicated to the recipient of such invoice or debit note in the manner specified under section 37.
Change 3: In section 74 of the Central Goods and Services Tax Act, in Explanation 1, in clause (ii), for the words and figures "sections 122, 125, 129 and 130", the words and figures "sections 122 and 125" shall be substituted.
Comments: Sec. 74 of the CGST Act, 2017 grants an option to a person to conclude the proceedings for recovery subject to making the stipulated payment of the tax/interest/penalty within the stipulated time.
Clause (ii) of the Explanation 1 to Sec. 74 clarifies that if the proceedings against the main person are concluded, then proceedings against all persons in respect of penalty (including penalty imposed for E-way bill violations u/s 129 and 130) shall also deem to be concluded.
Now the amendment provides that the penalty imposed for E-way bill violations u/s 129 and 130 shall not be deemed to be concluded under the proceedings initiated u/s 73 or 74.
Therefore w.e.f. 01.01.2022 the proceedings initiated u/s 129 & 130 for Eway bill violations shall be independent proceedings and closure of parallel proceedings u/s 73 or 74 (in respect of any person including the subject person) shall not result in the deemed closure of the proceedings initiated u/s 129 & 130.
Change 4: In section 75 of the Central Goods and Services Tax Act, in sub-section (12), the following Explanation shall be inserted, namely: Explanation.- For the purposes of this sub-section, the expression "self-assessed tax" shall include the tax payable in respect of details of outward supplies furnished under section 37, but not included in the return furnished under section 39.
Comments: W.e.f. 01.01.2022 the term "self-assessed tax" under Explanation to Sec. 75 of the CGST Act, 2017 shall include the tax payable on supplies in respect of which the details have been furnished by the taxpayer in GSTR 1 but the same has not been included in the GSTR 3B and hence not paid.
The aforesaid amendment aims to curb the practice of fake billing whereby sellers show higher sales in GSTR-1 to enable a purchaser to claim an input tax credit (ITC) but report suppressed sales in GSTR-3B to lower GST liability.
The aforesaid amendment shall allow the department to directly initiate the recovery action as regards the said self -assessed liability.
We are worried that the aforesaid amendment would lead to hostile recovery actions from the tax department even for relatively frivolous/minor cases of mismatch for otherwise compliant players. Therefore, the Central Board of Indirect Taxes and Customs (CBIC) should give a "reasonable time" to businesses to explain the reasons for such mismatch as situations wherein errors have been committed in GSTR 1 which can be rectified only at the time of filing the next GSTR 1, result in undue reporting of excess liability, are required to be excluded from the said definition as rectification of GSTR 1 is duly permissible in GST laws.
Change 5: In section 83 of the Central Goods and Services Tax Act, for sub-section (1), the following sub-section shall be substituted, namely: "(1) Where, after the initiation of any proceeding under Chapter XII, Chapter XIV or Chapter XV, the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue it is necessary so to do, he may, by order in writing, attach provisionally, any property, including bank account, belonging to the taxable person or any person specified in sub-section (1A) of section 122, in such manner as may be prescribed."
Comments: Provisional attachment u/s 83 of the CGST Act, 2017 can be undertaken by the department only during the pendency of the stipulated proceedings. In other words, provisional attachment cannot be undertaken if the stipulated proceedings are not pending.
Now w.e.f. 01.01.2022 Sec. 83(1) is substituted to the effect that the provisional attachment can be undertaken after the initiation of any proceeding under Chapter XII, Chapter XIV or Chapter XV if the Commissioner is of the opinion that the same is necessary to protect the revenue.

The aforesaid amendment has been made to empower the Commissioner to provisionally attach property of taxable person or any other person who is the beneficiary of the transaction, after initiation of the proceedings.

We express a concern regarding the potential for abuse of this draconian power to coerce taxpayers into depositing tax demands without following the due process of law. The aforesaid amendment should be challenged in court on grounds of constitutional validity as the sweep of the draconian powers is expanded to permit provisional attachment on mere initiation of the proceedings and that too the proceedings covered under multiple Chapters i.e. assessment, inspection, search, seizure and arrest, demands and recovery.
Change 6: In section 107 of the Central Goods and Services Tax Act, in sub-section (6), the following proviso shall be inserted, namely: "Provided that no appeal shall be filed against an order under sub-section (3) of section 129, unless a sum equal to twenty-five per cent. of the penalty has been paid by the appellant."
Comments: Precently Sec. 107(6) of the CGST Act, 2017 provides for making a pre-deposit a sum equal to ten per cent. of the remaining amount of tax in dispute arising from the said order subject to a maximum of twenty-five crore rupees, in relation to which the appeal has been filed.
The aforesaid amendment has been made in the context of the orders passed u/s 129(3) for E-way bill violations to provide that the quantum of the pre-deposit in such cases shall be equal to 25% of the penalty ordered to be paid.
There is no amendment u/s 112(8). Hence, there will be no further pre-deposit for filing the appeals to Appellate Tribunal in such cases i.e. order u/s 129(3).
Change 7: In section 129 of the Central Goods and Services Tax Act,
(i) in sub-section (1), for clauses (a) and (b), the following clauses shall be substituted, namely: "(a) on payment of penalty equal to two hundred per cent. of the tax payable on such goods and, in case of exempted goods, on payment of an amount equal to two per cent. of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods comes forward for payment of such penalty;
(b) on payment of penalty equal to fifty per cent. of the value of the goods or two hundred per cent. of the tax payable on such goods, whichever is higher, and in case of exempted goods, on payment of an amount equal to five per cent. of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods does not come forward for payment of such penalty;"
(ii) sub-section (2) shall be omitted;
(iii) for sub-section (3), the following sub-section shall be substituted, namely: "(3) The proper officer detaining or seizing goods or conveyance shall issue a notice within seven days of such detention or seizure, specifying the penalty payable, and thereafter, pass an order within a period of seven days from the date of service of such notice, for payment of penalty under clause (a) or clause (b) of sub-section (1).";
(iv) in sub-section (4), for the words "No tax, interest or penalty", the words "No penalty" shall be substituted;
(v) for sub-section (6), the following sub-section shall be substituted, namely: "(6) Where the person transporting any goods or the owner of such goods fails to pay the amount of penalty under sub-section (1) within fifteen days from the date of receipt of the copy of the order passed under sub-section (3), the goods or conveyance so detained or seized shall be liable to be sold or disposed of otherwise, in such manner and within such time as may be prescribed, to recover the penalty payable under sub-section (3): Provided that the conveyance shall be released on payment by the transporter of penalty under sub-section (3) or one lakh rupees, whichever is less: Provided further that where the detained or seized goods are perishable or hazardous in nature or are likely to depreciate in value with passage of time, the said period of fifteen days may be reduced by the proper officer.".
Comments : The amendments in section 129 are as follows:

Change 8: In section 130 of the Central Goods and Services Tax Act,
(a) in sub-section (1), for the words "Notwithstanding anything contained in this Act, if ", the word "Where" shall be substituted;
(b) in sub-section (2), in the second proviso, for the words, brackets and figures "amount of penalty leviable under sub-section (1) of section 129", the words "penalty equal to hundred per cent. of the tax payable on such goods" shall be substituted;
(c) sub-section (3) shall be omitted.
Comments: W.e.f. 01.01.2022, Sec. 130 dealing with the confiscation of goods or conveyance shall be completely de-linked from the provisions related to detention or seizure contained u/s 129. Hence confiscation can be made only if the situations specified u/s 130(1) are satisfied independent of Sec. 129(1).
An amendment has been made u/s 130(2) to provide that the amount of fine payable by the person in lieu of confiscation shall be as the officer thinks fit but the aggregate of such fine and penalty leviable shall not be less than the penalty equal to hundred per cent. of the tax payable on such goods. However such fine leviable shall not exceed the market value of the goods confiscated, less the tax chargeable thereon.
Presently Sec. 130(3) provides that even if the fine in lieu of confiscation of goods or conveyance is imposed u/s 130(2), the owner of goods or conveyance or the person referred to in sub-section (1) shall in addition be liable to pay the tax, penalty and charges in respect of the given goods/conveyance.
The aforesaid provisions mandate further payment of tax, penalty and charges in addition of what has been paid as a fine. the said provisions have been omitted w.e.f. 01.01.2022.
Change 9: For section 151 of the Central Goods and Services Tax Act, the following section shall be substituted, namely: Power to call for information. "151. The Commissioner or an officer authorised by him may, by an order, direct any person to furnish information relating to any matter dealt with in connection with this Act, within such time, in such form, and in such manner, as may be specified therein.".
Comments: Presently Sec. 151 of the CGST Act, 2017 grants power to the Commissioner to issue a notification to collect statistics relating to any matter dealt with by or in connection with GST. Further, the Commissioner, or any person authorised by him in this behalf, may call upon the concerned persons to furnish such information or returns, in such form and manner as may be prescribed, relating to any matter in respect of which statistics is to be collected.
Now w.e.f. 01.01.2022 the amended provisions empower to the Commissioner to issue an order and direct any person to furnish information relating to any matter connected with GST within such time, in such form, and in such manner, as may be specified therein.
Change 10: In section 152 of the Central Goods and Services Tax Act,
(a) in sub-section (1),
(i) the words "of any individual return or part thereof" shall be omitted;
(ii) after the words "any proceedings under this Act", the words "without giving an opportunity of being heard to the person concerned" shall be inserted;
(b) sub-section (2) shall be omitted.
Comments: Presently Sec. 152(1) of the CGST Act, 2017 provides that information in respect of any individual return or part thereof obtained for the purposes of Sec. 150 (furnishing of information return by specified authorities such as income tax, banks, etc.) or Sec. 151 (power to seek information related to any matter under GST) cannot be published in such manner so as to enable such particulars to be identified as referring to a particular person and no such information shall be used for the purpose of any proceedings under this Act.
Now w.e.f. 01.01.2022 the said provisions shall apply in respect of any information obtained for the purposes of Sec. 150 or 151 and not limited to only information in respect of any individual return or part thereof. Further, the information so obtained can now be used for any proceedings under the law but only after giving an opportunity of being heard to the concerned person.
In view of the aforesaid amendment u/s 152(1) allowing the use of the information gathered for any proceedings under the law, Sec. 152(2) that presently allows access to the information for the purpose of prosecution stands redundant and hence omitted.
The given amendments shall pave way for the department to issue notices merely based on a mismatch with the data gathered from other sources (such as income tax, etc.).
Change 11: In section 168 of the Central Goods and Services Tax Act, in sub-section (2),
(i) for the words, brackets and figures "sub-section (1) of section 44", the word and figures "section 44" shall be substituted;
(ii) the words, brackets and figures "sub-section (1) of section 151," shall be omitted.
Comments: Sec. 168(2) provides that the Commissioner specified in the stipulated provisions including Sec. 44(1) and Sec. 151(1) shall mean the Commissioner or Joint Secretary posted in the Board.
In view of the recasting of Sec. 44 (self-certification of annual return as well as reconciliation statement), the present reference u/s 168(2) to Sec. 44(1) is amended to Sec. 44.
Now the reference to Sec. 151(1) is omitted u/s 168(2) and hence the Commissioner u/s 168(2) shall mean the Commissioner u/s 2(24) that means the Commissioner of Central Tax and includes Principal Commissioner of central tax appointed under section 3.
Change 12: In Schedule II of the Central Goods and Services Tax Act, paragraph 7 shall be omitted and shall be deemed to have been omitted with effect from the 1st day of July, 2017.
Comments: Presently paragraph 7 of Schedule II provides that the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration shall be treated as supply of goods.
In view of the retrospective amendment by way of inserting clause (aa) to Sec. 7(1) to broaden the definition of 'supply' by including the activities or transactions, by a person, other than an individual, to its members or constituents or vice-versa, for cash, deferred payment or other valuable consideration, paragraph 7 which is applicable only in respect of unincorporated association or body of persons and not in respect of all associations/clubs and hence omitted.
Goods and Services Tax Rules 2017
Notification No.  40/2021 - Central Tax dt. 29.12.2021 has been issued to amend the CGST Rules, 2017 to compliment the amendments made in the CGST Act, 2017 that has been brought into force w.e.f. 01.01.2022.
The changes in Goods and Services Tax Rules 2017 being made effective from 1st of January, 2022 are as below:
Change 1: Rule 10B has been inserted to make mandatory Aadhaar authentication for GST revocation and refund application with effect from January 1, 2022. It is now mandatory for the registered person to undergo Aadhaar authentication for the following purposes:

Aadhaar authentication or e-KYC verification before filing of refund may be done by accessing the "Dashboard > My Profile > Aadhaar Authentication Status on the GST portal.

Change 2: Rule 36(4) has been amended to give effect that No input tax credit shall be availed by a registered person in respect of invoices or debit notes the details of which are required to be furnished under subsection (1) of section 37 unless,-
(a)the details of such invoices or debit notes have been furnished by the supplier in the statement of outward supplies in FORM GSTR-1 or using the invoice furnishing facility; and
(b)the details of such invoices or debit notes have been communicated to the registered person in FORM GSTR-2B under sub-rule (7) of rule 60.
Consequently, the five percent limit mentioned in Rule 36(4) is now irrelevant as the recipient would not be able to take any ITC if the same is not reflected in the recipient's GSTR-2A and/or 2B.
Change 3: Rule 142 has been amended to amend the time limit of payment of 200% of the tax payable on detainted or seized goods in transit to be 7 days from date of notice but before the issuance of order under the said sub-section 129 (3).
The time limit of issuance of notice upon detention or seizure of goods in transit is seven days under section 129(3).
As per Rule 142, the person chargeable with tax earlier had fourteen days from the date of the seizure or detention to make payment of tax, interest, and penalty as the case may be. Now, the time limit is within seven days and the above amount is payable within seven days from the date of issuance notice u/s 129(3) but before the issuance of order under the said sub-section (3).
Earlier the time period of fourteen days started the date of detention or seizure and intimate in Form GST DRC-03. Now, This is to be done before the issuance of an order by the proper officer under the said sub-section (3).
Change 4: Rule 144A has been inserted w.e.f. 01.01.2022 to bring provisions for Recovery of penalty on detention or seizure of goods in transit through auction and delinking of confiscation provision.

Where the person transporting any goods or the owner of such goods fails to pay the amount of penalty under sub-section (1) of section 129 within fifteen days from the date of receipt of the copy of the order passed under sub-section (3) of the said section 129, the proper officer shall proceed for sale or disposal of the goods or conveyance so detained or seized by preparing an inventory and estimating the market value of such goods or conveyance.

Where the detained or seized goods are perishable or hazardous in nature or are likely to depreciate in value with passage of time, the said period of fifteen days may be reduced by the proper officer.

The said goods or conveyance shall be sold through a process of auction, including e-auction, for which a notice shall be issued in FORM GST DRC10 clearly indicating the goods or conveyance to be sold and the purpose of sale.
Where the person transporting said goods or the owner of such goods pays the amount of penalty under sub-section (1) of section 129, including any expenses incurred in safe custody and handling of such goods or conveyance, after the time period mentioned in sub-rule (1) but before the issuance of notice under this sub-rule, the proper officer shall cancel the process of auction and release such goods or conveyance.
Change 5: Rule 154 has been amended w.e.f. 01.01.2022 to deal with the provision of appropriation of sale proceeds realized from the sale of goods or conveyance for recovery of penalty under section 129(3).
The amounts so realised from the sale of goods or conveyance, movable or immovable property, for the recovery of dues from a defaulter or for recovery of penalty payable under sub-section (3) of section 129 shall,-
First, be appropriated against the administrative cost of the recovery process;
Next, be appropriated against the amount to be recovered or to the payment of the penalty payable under sub-section (3) of section 129, as the case may be;
Next, be appropriated against any other amount due from the defaulter under the Act or the Integrated Goods and Services Tax Act, 2017 or the Union Territory Goods and Services Tax Act, 2017 or any of the State Goods and Services Tax Act, 2017 and the rules made thereunder; and
The balance, if any, shall be credited to the electronic cash ledger of the owner of the goods or conveyance as the case may be, in case the person is registered under the Act, and where the said person is not required to be registered under the Act, the said amount shall be credited to the bank account of the person concerned.
Change 6: Rule 159(2); (3); (4) and (5) regarding provisional attachment of property has been amended w.e.f. 01.01.2022.
As section 83 of CGST Act, now authorizes the Commissioner with a wide power to provisionally attach the property of a taxable person or any person who retains the benefit of a transaction in question [specified in section 122(1A)] to protect the interest of the government revenue.
Accordingly, The amendments in Rule 159 now provide that a copy of the order GST DRC-22 of attachment to be sent to the person whose property is being so attached in addition to erstwhile requirement of sending a copy to the concerned authorities.
Further, A new Form GST DRC -22A has been notified for filing objection by the person whose property is being so attached.
Other important changes
Change 1 : GST changes that impact e-commerce operators- Notification No. 17/2021-Central Tax (Rate) dated 18th November, 2021 has amended Notification No.17/2017- Central Tax (Rate), dated the 28th June, 2017 wherein the supply of restaurant service other than the services supplied by restaurant, eating joints etc. located at specified premises has been added as the categories of services, the tax on intra-State supplies shall be paid by the electronic commerce operator.
This implies that the food aggregators / e-commerce platforms using transportation service like Zomato, Swiggy etc. are liable to pay tax on restaurant services effective January 1, 2022. The liability to pay taxes on the non-restaurant services as per this directive still lies with the restaurants themselves.
As per the latest notification, Zomato, Swiggy, etc. shall be responsible for charging, collecting, and paying GST at the rate of five percent on supply of "restaurant services" made by such restaurant through the e-commerce platform.

Change 2 : Notification No.21/2021-Central Tax (Rate) dated 31st December, 2021 has notified 6% GST Rate on Footwear of sale value not exceeding Rs.1000 per pair.