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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 No. 105 ON ANALYSIS OF ITC ADMISSIBILITY ON HIRING OF MOTOR VEHICLE

GST UPDATE No. 105 ON ANALYSIS OF ITC ADMISSIBILITY ON HIRING OF MOTOR VEHICLE
In our earlier update, we had discussed the favourable ruling pronounced by UP AAR in the case of DR WILLMAR SCHWABE (I) PRIVATE LIMITED wherein it was held that the ITC with respect to hiring of motor vehicles is available to the applicant. In the present update, we seek to discuss the detailed reasoning behind the favourable decision pronounced by the UP AAR in light of the amended provisions contained in section 17(5) of the CGST Act, 2017. In order to understand the interpretation of the provision, the relevant extracts are produced for the sake of convenient reference as follows:- (5) Notwithstanding anything contained in sub-section (1) of section 16 and sub- section (1) of section 18, input tax credit shall not be available in respect of the following, namely:— (a) motor vehicles for transportation of persons having approved seating capacity of not more than thirteen persons (including the driver), except when they are used for making the following taxable supplies, namely:— (A) further supply of such motor vehicles; or (B) transportation of passengers; or (C) imparting training on driving such motor vehicles; (ab) services of general insurance, servicing, repair and maintenance in so far as they relate to motor vehicles, vessels or aircraft referred to in clause (a) or clause (aa): Provided that the input tax credit in respect of such services shall be available— (i) where the motor vehicles, vessels or aircraft referred to in clause (a) or clause (aa) are used for the purposes specified therein; (ii) where received by a taxable person engaged— (I) in the manufacture of such motor vehicles, vessels or aircraft; or (II) in the supply of general insurance services in respect of such motor vehicles, vessels or aircraft insured by him; (b) the following supply of goods or services or both— (i) food and beverages, outdoor catering, beauty treatment, health services, cosmetic and plastic surgery, leasing, renting or hiring of motor vehicles, vessels or aircraft referred to in clause (a) or clause (aa) except when used for the purposes specified therein, life insurance and health insurance: Provided that the input tax credit in respect of such goods or services or both shall be available where an inward supply of such goods or services or both is used by a registered person for making an outward taxable supply of the same category of goods or services or both or as an element of a taxable composite or mixed supply; (ii) membership of a club, health and fitness centre; and (iii) travel benefits extended to employees on vacation such as leave or home travel concession: Provided that the input tax credit in respect of such goods or services or both shall be available, where it is obligatory for an employer to provide the same to its employees under any law for the time being in force. After reading the above provision, following points are worth noting:- 1. The restriction as regards availment of ITC on motor vehicles used for transportation of persons is only with respect to motor vehicles having approved seating capacity of 13 passengers with certain exceptions. Consequently, there is no restriction as regards availment of ITC on motor vehicles having approved seating capacity exceeding 13 persons. 2. Similarly, the restriction as regards availment of ITC on various services relating to motor vehicle such as of general insurance, servicing, repair and maintenance is also with respect to motor vehicles referred to in clause (a) being motor vehicles having approved seating capacity of 13 persons. Hence, there is no restriction in availment of such services in relation to motor vehicles having approved seating capacity exceeding 13 persons. However, with respect to motor vehicles having approved seating capacity of 13 persons, the ITC may be availed only if such motor vehicles are being used for specified purposes or such services are availed by general insurance service provider/manufacturer of such motor vehicle. 3. It is pertinent to mention that even the restriction of credit availment with respect to leasing, renting or hiring of motor vehicles is for motor vehicles having approved seating capacity of 13 persons as referred to in clause (a) and not for motor vehicles having approved seating capacity exceeding 13 persons. As such, there is no prohibition for availing input tax credit with respect to motor vehicle such as bus having approved seating capacity exceeding 13 persons, whether it be credit of purchase of bus or credit of various input services received as stated above. 4. There are two exceptions for availing the ITC of motor vehicles with approved seating capacity of 13 persons:- (i) If said services are used for providing an outward supply of same category of service. (ii) If said services are obligatory on part of employer to provide it for employees under any law for the time being in force. It is pertinent to mention here that as far as availability of credit under 4(i) is concerned, it is worth pointing out that the rate notification no. 11/2017-Central Tax (Rate) dated 28.06.2017 prescribing GST rate of 5% specifies condition that the ITC on goods or services used in supplying the service has not been taken. However, this condition is applicable for the service provider providing services of transportation of passengers. In case where the motor vehicle has been hired for the benefit of employees by the employer, no GST is payable by the employer on the recovery made from employees as the employer is not engaged in providing transportation of passenger service in usual course of business. Moreover, as per notification no. 29/2019-Central Tax dated 31.12.2019, services provided by way of renting of motor vehicle designed to carry passengers where cost of fuel is included in the consideration charged is liable to GST under reverse charge if the services are received by a body corporate. One may ponder as to whether the ITC would be available to the employer if tax is paid under reverse charge mechanism? The answer is in affirmative as restriction is only on the service provider providing transportation of passenger service and not to the recipient body corporate paying GST under reverse charge mechanism. As far as the admissibility of ITC under 4(ii) is concerned, it is worth mentioning that an adverse view was taken by Gujarat AAR in the case of M/s TATA MOTORS LTD. as far as admissibility of ITC on canteen facility provided to employees under mandate of the Factories Act, 1948. We had made an extensive analysis on the said decision in our earlier update wherein we disagreed with the reasoning adopted by the AAR wherein it was held that the exception carved out for the obligation under any Law is not applicable for outdoor catering services. Likewise, we are of the opinion that where the renting/hiring of motor vehicles is under statutory obligation of the employer, for example, Shops and Establishments Act requires compulsory transport facility to women working late night, the ITC is admissible even if the motor vehicle is having approved seating capacity of 13 persons. The above analysis seeks to answer all the possible doubts arising as regards admissibility of ITC on the services of hiring of motor vehicles availed by the assessee under GST Law.
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