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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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GST UPDATE No. 104 ON ITC ADMISSIBILITY ON HIRING OF BUS FOR EMPLOYEES

GST UPDATE No. 104 ON ITC ADMISSIBILITY ON HIRING OF BUS FOR EMPLOYEES
The admissibility of input tax credit (ITC) with respect to hiring of motor vehicles has been a matter of dispute since inception as the government has imposed restrictions as regards availability of credit on motor vehicles. Although GST law was formulated with the idea of seamless flow of input tax credit but section 17(5) has imposed certain prohibitions as regards availment of input tax credit, one of them being in relation to motor vehicles. The issue regarding admissibility of ITC of GST charged by service provider on hiring of bus for transportation of employees to and from workplace and the liability to pay GST on the recovery made from employees was raised before the UP AAR in the case of DR WILLMAR SCHWABE (I) PRIVATE LIMITED. The reasoning adopted by AAR is the subject matter of discussion of our present update. The applicant stated that providing transportation facilities to employees has direct nexus with the business activities and so are to be considered as in course or furtherance of business. Moreover, it was pleaded that after amendment in section 17(5) of the CGST Act, 2017 w.e.f. 01.02.2019, ITC is allowed on leasing, renting or hiring of motor vehicles having approved capacity of not more than 13 persons. Reliance was placed on the decision given in the case of COMMISSIONER OF CENTRAL EXCISE, VERSUS M/S FEDERAL MOGUL GOETZE (INDIA) LTD. [2011 (9) TMI 120- PUNJAB AND HARYANA HIGH COURT] and COMMISSIONER OF CENTRAL EXCISE, BANGALORE-III, COMMISSIONERATE VS STANZEN TOYOTETSU INDIA (P.) LTD. [2011 (4) TMI 201-KARNATAKA HIGH COURT]. Furthermore, it was contended that amount recovered from employees was not towards any independent supply rather it was recovery of transportation cost incurred as per the employment contract so not liable to GST. In this context, reliance was placed on the decision given in the case of M/S TATA MOTORS LIMITED [2020 (9) T.M.I. 352- AUTHORITY FOR ADVANCE RULING, MAHARASHTRA]. The AAR held that prior to amendment in section 17(5) of the CGST Act, 2017, ITC with respect to rent-a-cab services was not available which had wide connotation and included all types of motor vehicles which were hired for transportation of employees. However, with the introduction of amended section 17(5) of the CGST Act, 2017, w.e.f. 01.02.2019, ITC on leasing, renting and hiring of motor vehicles have been disallowed only for vehicles having capacity upto 13 seats. Hence, it was concluded that ITC is available on the GST paid for hiring of buses for transportation of employees. As regards taxability of recovery of amount from employees is concerned, AAR referred to the provision contained in clause I of the Schedule III to the CGST Act which lists the activities which shall be treated neither as a supply of goods nor supply of services. As per clause I of the Schedule III to the CGST Act, services provided by an employee to the employer in the course of or in relation to his employment shall be treated as neither supply of goods nor supply of services. However, it is worth pointing out that the reasoning adopted appears to be incorrect as in the Schedule III covers services by an employee to employer in the course of employment and not vice versa. In the present case, services are being provided by employer and not employee so the reference made to the Schedule III is misplaced. However, even otherwise, GST is not payable as employer does not provide transportation services in the normal course of business and it is just a facility extended to the employees under terms of employment. It has been held by Maharashtra AAR in the case of M/S JOTUN INDIA PRIVATE LTD. that applicant is not in business of providing insurance services so recovery of premium paid for insurance of parents of employees does not amount to provision of insurance services by employer and is not liable to GST. Following the same analogy, as the applicant is not in business of transport services, GST is not payable on such facility provided to employees. However, AAR ruled that the ITC would be restricted to the extent of cost borne by the applicant and proportionate ITC pertaining to recovery made from employees would not be admissible. This decision is appreciable as there are few instances wherein the advance rulings are being rendered in favour of the applicant inspite of clear provisions prevalent in the statue. The above decision seeks to put an end to the unwarranted litigation as regards ITC admissibility on GST paid for hiring of buses with seating capacity of more than 13 in light of amendment made in section 17(5) of the CGST Act, which is made applicable w.e.f. 01.02.2019.
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