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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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GST update 345 on addition done based on Facebook posts

GST update 345 on addition done based on Facebook posts
It is well noticed that the revenue authorities proceed towards invoking of adjudication proceedings on the basis of arbitrary and frivolous grounds without having any concrete evidence in possession. However, this increases the miseries of taxpayers to manifolds. Time and again the revenue authorities are directed by the Court to act judiciously yet they are not wiling to follow those directions. Recently, on similar parameters one case was reported before Kerala High Court in the case of Syamaladasan Kumaran V/s State tax officer. The decision imparted in this case is subject matter of our present update.

The petitioner knocked the doors of Court against the impugned order completing the assessment of Assessment Year 2017-18 wherein it was alleged that the product of the petitioner as a branded item is liable to tax. The counsel of petitioner submitted that the petitioner had not commenced the business of branded rice pertaining to the Financial Year 2017-18. Further, the machinery for dealing in the branded rice was purchased on in 2019. Therefore, the proceedings initiated were on the basis of Facebook post by the son of petitioner in the year 2019 regarding starting of new venture in branded rice. The submissions of the petitioner were not taken into account by the revenue department. Further, even if contentions of revenue department are considered, the same cannot be considered as a reliable material since the adjudication proceedings pertain to Financial Year 2017-18 while the Facebook post was published in the year 2019. Reliance was placed on decision of this court in the case of M/s Ozone Granites (P) Ltd V/s The Intelligence Officer, Commercial Taxes and Others wherein it was delivered that website information cannot be taken into account for initiating adjudication proceedings.

The Counsel of revenue objects the grant stating that alternate remedy was available with the petitioner under Section 107 of the CGST Act, 2017. The order is issued in July and the Writ Petition is highly belated. Further the recovery proceedings have been initiated following the demand raised in account of Ex6 order.

The Court after observing the facts the appeal of the petition stands allowed. It seems that the revenue authorities-initiated adjudication proceedings on the basis of certain Facebook posts which demonstrated that the petitioner was dealing with branded rice. The posts related to same were of Year 2019 and the assessment proceedings were of year prior to that which is not considered by the authorities. Further, the submissions of the petitioner were also not paid attention to. Therefore, the impugned order is quashed and the matter is remanded back to the authorities concerned wherein it was directed to pass an order only after providing an opportunity of being heard to the taxpayers. The fresh order is to be passed within a period of 2 months from date of receipt of certified copy of the Judgement.

The above decision is yet another example of the fact that corrobative and congent evidence should be available with the revenue department to invoke adjudication proceedings against the assessee. Even the authors of this update have also faced the same issue in the era of erstwhile regime of Excise and service tax. It is often discovered that the departmental authorities unnecessary pass adverse orders which is not less than a nightmare for the aggrieved taxpayers. However, a proper practice should be adopted by these authorities regarding searching for proper documents before hand or else there would be never ending litigations on the subject matter like these.
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