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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 158 ON HIGH COURT DIRECTIONS ON ISSUANCE OF SUMMON

GST UPDATE No 158 ON HIGH COURT DIRECTIONS ON ISSUANCE OF SUMMON
With the passage of time, adversities and complexities in GST Laws have increased manifold. The tax authorities are having an approach to collect tax aggressively from the taxpayers either by hook or crook. In doing so, they issue summons and gather information which is the first step towards initiation of proceedings under GST Law. Furthermore, the industries and business houses are of the view that this exercise results in harassment by the officers and taking harsh actions against them thus, adversely impacting working capital and other operations of the businesses. Recently, issuance of summon was challenged before Hon’ble Bombay High Court in the case of F.S.M. EDUCATION PVT. LTD. The analysis of the decision is the subject matter of discussion of our present update. The petitioner is a music school engaged in the business of recreational activities such as imparting training in music to the students. The petitioner was requested to submit certain documents within the prescribed time which was duly submitted by them as well. Later on, summon was issued to the petitioner company without providing any details of the inquiry. The petitioner was interrogated and crossquestioned continuously thus, violating the guidelines issued in the said matter. The Counsel of the petitioner argued that as per FAQs of 34 questions issued by GST department dated 15.12.2018 indicates that the summon can be issued only as a last resort to obtain details. It should not be issued in a casual manner. Further, the summons cannot be issued to pressurize or coerce the petitioner. The court held that all the submissions made by the Counsel of the petitioner are correct. The department should inform the list of documents to be furnished by the petitioner on which clarification is required by the department. Reliance was placed on the FAQs dated 15.12.2018 thereby holding that the discretion of issuing summon should be exercised as last resort and details required should be obtained by way of ordinary letter, as far as possible. Furthermore, the petitioner was also cooperating and furnishing the documents within the prescribed time. Accordingly, the Court disposed of the Writ Petition and issued directions to the department that summon shall be issued only in the event where revenue authorities are not satisfied with the documents and response of the consultant of the petitioner. Moreover, if any summons are being issued by the revenue authorities, the same shall indicate the purpose of issuance of summon with seven days notice before fixing the date for recording the statement of the director. Issuing of summon is a crucial power which helps the department to get information to find out evasion of tax so it should be exercised cautiously. However, in the present scenario, it is being used as a sword against the taxpayer. The above matter is prone to litigations not only in GST but also in erstwhile indirect tax regime thus, leading to “tax terrorism”. The CBIC has also issued guidelines regarding issuance of summons in Central Excise and Service Tax matters vide Circular No. 207/07/2014-CX-6 dated 20.01.2015 which act as a shield for the taxpayers thus mitigating the adversities which is caused to the taxpayers on issuance of summons. It is worth mentioning that clarifications issued by the Board are binding on the departmental officers in view of the Apex Court decision given in the case of COLLECTOR OF CENTRAL EXCISE, VADODARA VS DHIREN CHEMICAL INDUSTRIES [2002 (139) ELT 3 (SC)]. Hence, the revenue authorities are bound to exercise due diligence while issuing summon to the assessee otherwise it leads to unnecessary harassment of the assessees.
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