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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 157 ON ITC ELIGIBILITY ON FREEBIES

GST UPDATE No 157 ON ITC ELIGIBILITY ON FREEBIES
The concept of “Input Tax Credit”, in Indirect Tax Reform has been introduced to eliminate the cascading effect and promote seamless flow of input tax credit throughout the transaction chain. However, it is not so easy to justify the availment of input tax credit on freebies. The revenue authorities are adamant while interpreting the provisions of input tax credit and consequently, refrain from giving input tax credit easily to the taxpayers. The present update seeks to discuss the issue of admissibility of input tax credit on freebies given by business for sales promotion. Quoting the recent judgment imparted by Apex Court in the case of M/S APEX LABORATORIES PVT. LTD. V/S DEPUTY COMMISSIONER OF INCOME TAX wherein the Hon’ble Supreme Court upheld the ruling that pharmaceutical companies are not entitled for deduction of expenses incurred on distribution of freebies/incentives to medical practitioners. The Hon’ble Court was of the view that the freebies ranging from gifts, fridges, chains, LCD TVs etc. are technically not “free”. Their cost is generally included in the prices of the drugs and therefore gearing the overall prices of the commodities. The above decision was rendered in the context of Income Tax Laws. However, if the analogy of the Apex Court judgment is enforced in the GST regime as well, it can cast a doubt on the applicability of provisions contained in section 17(5)(h) of CGST Act, 2017 wherein input credit is blocked in case goods are distributed as free samples or gifts. The revenue authorities are of the view that input credit on freebies shall stand blocked since goods disposed of as a freebie doesn’t attract any output tax. However, looking into the current scenarios, it is the common practice followed by almost all the business houses specially during festive seasons to distribute their products as free sample. The burning question that arises is whether freebie given by business can be considered as gift? Gifts in common parlance is anything given voluntary, without expecting anything in return, out of love and affection. The question that arises is will any company which runs business to earn profits, distribute goods to its dealers or customers out of love and affection? The answer is a big NO. Goods distributed to dealers and customers are indeed towards business purposes so as to promote and boost the sales resulting into overall business profitability. The underlying motive behind this act is nothing but furtherance of business. Had the situation been that the goods are distributed on a voluntary basis and without any business motive, it would have been useless to argue that ITC should be denied on these transactions. On the contrary, the present situation is far different as goods distributed are with the motive of sales promotion. There are plethora of Judicial pronouncements which have ruled in negative as regards availability of input tax credit on freebies. In the case of BIOSTADT INDIA LTD, Maharashtra AAR held that ITC is denied on distribution of gold coins by the company to its customers on achievement of targets. Further, in case of SANOFI (INDIA) LIMITED, AAR held that ITC was denied in case goods were distributed without any consideration to the customers on fulfillment of certain conditions. Furthermore, the AAR deny the input credit on the basis that since there is no written contract or agreement which existed between the parties. It is submitted that the views taken by AAR as stated above needs to be revisited in light of the Apex Court decision holding that freebies are part of the cost of the product. If such a view is being accepted in GST Laws too, goods distributed as free are infact part of the cost of product on which GST is being paid so technically, they are not free. Hence, one may argue that ITC cannot be denied if goods are distributed as free samples or as gifts to consumers or dealers in the ordinary course of business. The admissibility of input tax credit on freebies has been a matter of dispute since inception. A proper clarification favoring the taxpayers in this regard from the Government is anticipated by the business communities thus marking an end on the unwanted litigations on this issue.
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