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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 110 on clarification on services supplied by restaurants through ECO

GST update No 110 on clarification on services supplied by restaurants through ECO
The GST council in is 45th meeting held on 17.09.2021 shifted the liability to pay tax on e-commerce operator (ECO) with respect to restaurant services provided by it. Notification No. 17/2021 dated 18.11.2021 has been issued to make the provision applicable with effect from 01.01.2022. However, a lot of confusion is prevailing in the minds of assessees as regards various issues with respect to implementation of this provision shifting the liability of payment of tax from restaurants to ECO. Recently, clarification was released by the CBIC vide Circular No. 167/23/2021-GST dated 17.12.2021 in this respect which is the subject matter of discussion of our present update. The issues touched upon by the circular are discussed as follows:- 1. Deduction of TCS by ECO :- Presently, ECOs are required to collect TCS @1% on the net value of taxable supplies made through it by other suppliers. The restaurant service providers were doubtful as to whether the ECO would continue to collect TCS on supplies made through them. It is clarified that there is no need to deduct TCS on the supplies for which GST is to be paid by the ECO. 2. Separate registration by ECO:- ECOs are already registered for collecting TCS and are filing GSTR8. Doubts were raised as to whether separate registration is required to be taken by ECO for concluding transactions through restaurants on which liability to pay tax is on the ECO. It is clarified that there is no need to take separate registration by the ECO and the existing registration would suffice. 3. Liability to pay tax for unregistered restaurants:- It is clarified that even for restaurants having aggregate turnover less than Rs. 20 Lakhs, if supplies have been made through ECO, GST would be payable by the ECOs. 4. Computation of aggregate turnover for restaurants:- There was confusion as regards inclusion of such turnover in the aggregate turnover of restaurant service provider or the ECO. It is clarified that the supplies made through ECO would be considered as supplies made by restaurant service provider and will be included in the aggregate turnover of restaurants. 5. Whether restaurant supplies through ECO considered as inward supplies liable to RCM for ECO? :- It is submitted that as per section 2(93)(a) of CGST Act, 2017, recipient of service means person who is liable to pay consideration. As in the present case, the customer ordering food through ECO is the recipient, ECO cannot be considered as recipient of the restaurant service and so the transaction cannot be considered as inward supplies for ECO. Similar view has been taken by CBIC and it is clarified that ECO are not recipient of restaurant service. 6. Requirement of proportionate reversal by ECO:- Representations have been raised seeking clarification on whether the ECO is liable to reverse proportionate ITC as per Rule 42 and 43 of CGST Act, 2017 since input credit is not admissible on restaurant services. To this, it is clarified that ECO charges commission and fee etc. for the services which it provides to restaurants. Hence, it is clarified that ECO need not to reverse ITC on account of restaurant services provided as it is merely appointed by government to discharge GST on restaurant services provided through it. Further, it is clarified that ECO shall pay entire amount in cash on such restaurant services. As the output tax is being paid in cash by ECO and actually it is engaged in facilitating restaurant service provider to supply food to customers, there is no requirement to reverse proportionate ITC. 7. Compliance for other than restaurant services by ECO:- It is clarified that the requirement to collect TCS would continue for services other than restaurant services provided through ECO. Moreover, the liability to issue invoices in case of services other than restaurant services provided through ECO would continue to be issued by the service providers. In case of composite supplies made by ECO, separate invoice is to be issued by ECO for restaurant services provided through it. ECO is liable to issue invoices for restaurant services provided through it. 8. Reporting in GST returns:- Transaction of supply of restaurant services through ECO would be reflected as B2B (in case of registered restaurants)/B2C (in case of unregistered restaurants) supplies in table 4A or table 7A(1) of GSTR-1 of ECO and as outward taxable supplies in GSTR-3B filed by them. However, restaurants would report such supplies as Nil rated/exempt supplies under table 8 of GSTR-1 and serial no. 3.1(c) of GSTR-3B. The government shifts liability to pay tax in specific sectors in order to check revenue leakage. One of the reasons for the change in tax mechanism for services provided by restaurants through ECO is to generate revenue on the supplies being made from unregistered restaurants. It is worth mentioning that Uber has also filed writ petition before the Delhi High Court against the move of the government to levy tax on auto-rickshaw services provided through ECO w.e.f. 01.01.2022 which are otherwise exempt on the grounds of discrimination. We can expect similar petitions being filed with respect to restaurant services provided through ECO.
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