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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 117 ON TAXABILITY OF ELECTRICITY CHARGES RECOVERED FROM TENANT

GST UPDATE NO 117 ON TAXABILITY OF ELECTRICITY CHARGES RECOVERED FROM TENANT
Since introduction of GST Law, there had been many complexities and questions raised regarding applicability of GST on various transactions. It is well settled law that the renting of commercial properties is subject to GST being supply of service as per entry 5(a) of Schedule II. However, the matter of dispute is whether the reimbursement towards electricity, water charges collected by the lessor form lessee shall fall within the ambit of GST? Similar issue was raised before Maharashtra Authority for Advance Ruling in the case of M/s. INDIANA ENGINEERING WORKS (BOMBAY) PVT. LTD. The reasoning adopted by the Maharashtra Advance Ruling is subject matter of our today’s update. The applicant sought for advance ruling on whether electricity and water charges paid by applicant and collected from recipient as reimbursement are liable to GST. The applicant contended that the reimbursement of charges collected do not have a character of supply under Section 7 of CGST Act, 2017. Further, the applicant is of view that as the charges are collected at actuals, the same will not form part of the taxable value of service of renting of immovable property. Hence, as per Section 15 of CGST act, 2017, the transaction value shall exclude the expenses incurred as a “Pure Agent” and hence, GST shall not be leviable. Reliance was placed by assessee in case of SOUTH EASTERN COALFIELDS LTD. V/S C. CX &ST AND IN KIRAN GEMS PVT LTD. V/S CCE & ST. The Counsel of the department argued that GST is payable on electricity charges, water charges as these forms integral part of the immovable property for enjoyment of the right to use the said property. Furthermore, as per Section 15 of CGST Act, 2017, the transaction value shall include any incidental expenses incurred towards the value of consideration. The revenue also contended that conditions of Rule 33 of CGST Rules pertaining to pure agent are not fulfilled as the applicant is not authorized by the tenant to act as a pure agent. Moreover, making the payment of electricity and water charges to the government is the responsibility of the applicant as the connection is in the name of applicant only. Hence, the recovery of charges on reimbursement basis would not qualify as “pure agent” and cannot be deducted from the taxable value of service. The Maharashtra Advance Ruling held that utilities such as water, electricity etc. are basic amenities without which occupation of premises would not be possible. The provision of essential services is mandatory to be provided by the landlord. Hence, the reimbursement charges collected form the part of consideration. Further, going through Section 15(c) of CGST Act, it was concluded that the charges shall be included in transaction value of supply as these are incidental expenses. Further, the AAR upheld the view of the department concluding that the applicant shall not be treated as “Pure Agent” as conditions of Rule 33 are not fulfilled. Therefore, it was concluded that the reimbursed electricity and water charges charged by the applicant from the tenant by issuing debit note shall be considered in taxable value and GST shall be levied on it. The present judgement covers an issue which has been at the center stage for disputes since Service Tax regime. In case of UNION OF INDIA V/S M/S INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS LTD., hon’ble Supreme Court had held that no service tax is leviable on the reimbursement of expenses which are incurred while providing a Service. However, post decision, Section 67 of Finance Act was amended and the definition of “consideration” was amended to include reimbursable expenditure or cost which was made effective from 14.05.2015. Similarly, there are divergent views on the said issue in GST era. However, after observing the decision pronounced by AAR, applicant needs to establish a concrete evidence so as to prove his contention of satisfaction of conditions prescribed for “Pure Agent” as per Rule 33 of CGST Rules, 2017.
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