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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 134 on ITC eligibility on leasehold rights of land acquired for construction of plant

GST update No 134 on ITC eligibility on leasehold rights of land acquired for construction of plant
One of the pillars on which GST Law is founded is to allow seamless flow of input tax credit in order to eliminate cascading effect of taxes but in reality, the restrictions in availment of input tax credit provided in section 17(5) of the CGST Act, 2017 prove to the contrary. The admissibility of input tax credit of GST paid in connection with land has been a contentious issue. Recently, the dispute regarding availability of ITC on leasehold rights acquired for land that was used for construction of plant and machinery was raised before Telangana AAAR in the case of INOX AIR PRODUCTS PVT. LTD. The analysis of the decision is subject matter of our present update. The appellant is engaged in business of manufacture and supply of industrial and medical gases. The appellant had entered into an agreement wherein it procured the leasehold rights in a land for a period of 72 years from IPL for setting up Air Separation Unit (ASU) for manufacture and supply of industrial gases. The appellant sought advance ruling on availment and utilization of ITC charged by IPL in respect of the above transaction. The appellant contended that land taken on lease from IPL is not for construction of immovable property but rather for construction of plant and machinery which is not restricted under section 17(5)(d) of the CGST Act, 2017. It was also pleaded that strict interpretation of the expression “for construction” necessitates that there must be a direct nexus between goods or services procured and the activity of construction. Reliance was placed on Supreme Court’s decision of Sales Tax Commissioner V/s Modi Sugar Mills and Indian Chamber of Commerce and others v/s Commissioner of Income Tax. The appellant further stated that denial of credit under the impugned order is not proper as the ITC is related to acquiring leasehold land which is used for construction of plant and machinery which is anyways covered by the exception carved out in the provision. But the impugned order has failed to appreciate the fact that to hit by section 17(5)(d) of CGST Act, 2017,the primary condition is to be satisfied is that goods or services should be relating to “construction” of any immovable property. The restriction does not apply if there is no such construction. Moreover, even if it is assumed that the said services were used for “construction activity”, the said construction does not result in any immovable property as the ASP is a movable property. It is not permanently embedded to Earth and can be shifted to other site easily as per the requirements. Technical drawings were also submitted by appellant in this regard. Therefore, it was contended that since ASP is a plant and machinery, it shall be covered under exclusion of Section 17(5)(d). The AAAR after analyzing the provisions held that the definition of “construction” is inclusive. It covers the original work of erection, installation, commissioning etc. to the extent the expenditure is capitalized in books. Therefore, even if installation of components is made in setting up the manufacturing plant, it amounts to construction. Further, the AAAR held that as per the appellant’s contention, “for construction” means “for the purpose of construction” and services having direct nexus with construction are covered. Reliance by AAAR was placed on Apex Court’s decision in case of Oblum Electrical Industries Pvt. Ltd. wherein it was held that word “for” has much larger ambit as compared to “in”. Applying the same analogy, AAAR stated that there is no requirement to have direct nexus and therefore, services from IPL is a service received “for construction”. Further, in order to ascertain whether “plant and machinery” is a movable property or an immovable property, reliance was placed on Hon’ble Supreme Court’s decision in case of Duncans Industries Ltd. v/s State of U.P and Ors wherein it was held that in order to determine whether a machine is embedded in earth or not, primarily intention of parties is to be taken into consideration. Applying the same rationale, it was concluded by AAAR that the appellant has taken land on lease for 72 years to put up a manufacturing facility and it is not a temporary facility. Since, ASP is an immovable property which can be contended as plant and machinery but moving further, land is excluded from the definition of plant and machinery. Therefore, the AAAR upheld the view of AAR and held that ITC shall be restricted u/s 17(5)(d) of CGST Act, 2017. The above decision denies the admissibility of ITC on goods or servicesthat are specifically related to land but are indirectly related to setting up of plant and machinery. This decision depicts the adamant view of the department that any ITC having nexus with procurement of land shall not be available to the assessee irrespective of the fact that the said ITC is indirectly essential for setting up the plant and machinery. Although, plant and machinery which is embedded to Earth is eligible for ITC irrespective of its immovability but input services for procurement of land on which such machinery is established is not eligible for ITC.
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