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Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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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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