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Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

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TRANSITION OF ASSESSEES PAYING SERVICE TAX ON RECEIPT BASIS IN GST

GST DAILY DOSE OF UPDATION

 
TRANSITION OF ASSESSEES PAYING SERVICE TAX ON RECEIPT BASIS IN GST:
 
 
In the current service tax regime, the rate of service tax is determined by the Point of Taxation Rules, 2011. However, to provide relief to specified professionals working on small scale, special provision was introduced for individuals, partnership firms, LLPs wherein specified professionals having total receipts of Rs. 50 Lakhs or less in the previous financial year from all premises. The point of taxation for such specified professionals was stated to be date of receipt of payment in order to enable them to pay service tax on receipt basis rather than accrual basis. It is pertinent to mention that prior to 01.04.2012, the provision was contained in Rule 7(c) of the Point of Taxation Rules, 2011 but the same has been omitted w.e.f. 1.4.2012. However, the benefit has been continued to be provided to the assessee and only the position of the benefit has been changed. The provision has been shifted to fourth proviso to Rule 6(1) of the Service Tax Rules, 1994 containing the provisions pertaining to payment of service tax. It has been provided that the individuals, partnership firm and one man companies whose aggregate value of taxable services provided from one or more premises is 50 lakh rupees or less in the previous financial year, the service provider has the option to pay tax on taxable services provided or agreed to be provided by the specified dates in which payment is received. The effect of shifting the provision is that prior to 01.04.2012, the point of taxation for specified assessees was date of receipt of payment but now, the benefit has been extended by way of facility to pay service tax on receipt of consideration. Hence, the point of taxation for such specified assessees is governed by general rule and only the benefit of payment of service tax is given on receipt of consideration.  
 
 
The present update is concerned with the difficulties that the specified assessees would be facing while switching to the new GST regime because there is no such benefit under the proposed GST regime. Now, a big question stands in front of the assessees that have opted for payment of service tax on receipt basis that how they will be discharging their service tax liability in the GST regime for the payments received relating to prior periods. The answer probably lies in section 188 of the revised GST draft law pertaining to transitional provisions which states that:
 
Taxability of supply of services in certain cases
 
Notwithstanding anything contained in section 13 or 14, the tax in respect of the taxable services shall be payable under the earlier law to the extent the point of taxation in respect of such services arose before the appointed day.
 
Explanation: Where the portion of the supply of services is not covered by this
Section, such portion shall be liable to tax under this Act.
 
This section probably resolves the problem that the specified assessees would face on implementation of GST. This is for the reason that the general rules of point of taxation would apply for specified assessees also according to which if the invoice has been issued and service has been provided prior to implementation of GST, the point of taxation would be in the present service tax law and the tax shall be payable as per the present service tax laws. However, no mechanism of payment has been prescribed as to whether the amount would be payable as service tax or GST and how will it be reflected in the returns by the assessee is also question that remains unanswered. Moreover, if the tax is required to be paid as GST, whether the possible GST rate of 18% would be payable ? In our opinion, since the point of taxation has arose prior to GST, the service tax applicable during the relevant period will only be payable but the government is very unpredictable as similar problem was faced by such specified assessees when the rate of service tax was increased from 10.3% to 12.36%. It is pertinent to mention that during that time, clarification was issued vide Circular No. 154/5/2012-ST dated 28.03.2012 and Circular No. 158/9/2012-ST dated 08.05.2012 wherein it was stated that such specified assessees were required to pay increased service tax. However, these two circulars were challenged and quashed by the Hon’ble Delhi High Court in the case of DELHI CHARTERED ACCOUNTANTS SOCIETY VERSUS UNION OF INDIA [2013 (29) S.T.R. 461 (DEL)]. It is submitted that although, as per provisions it is understood that the service tax applicable during the material time will be payable by specified assessees but government is free to issue clarifications as mentioned above. Moreover, if the assessee is compelled to pay GST at the rate of 18%, what will be the fate of extra 3% payable by him? Whether the extra 3% can be recovered from the service recipients and whether credit will be passed on is also not clear. Well, the true colours of the proposed law and the difficulties faced by the assessees on transition will be revealed only after implementation of the revolutionary taxation reform.
 
 
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PRADEEP JAIN, F.C.A.

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