Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
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.  

Comments

Print   |    |  Comment

GST Update No 162 on treatment of service tax paid under RCM in GST era

GST Update No 162 on treatment of service tax paid under RCM in GST era
Transition to GST was not smooth as expected as lot of complexities were faced by the taxpayers on account of various technical glitches on the GST portal. Apart from technical glitches, there were interpretational issues too which haunted the minds of assessees while transformation into new tax regime. To illustrate, one such issue was regarding the eligibility to carry forward balance of Education Cess, Secondary Higher Education Cess and Krishi Kalyan Cess lying in the balance as on 30.06.2017. Another issue that was recently raised before hon’ble Madras High Court in the case of M/S GANGES INTERNATIONAL PRIVATE LTD. V/S THE ASSISTANT COMMISSIONER OF GST & CENTRAL EXCISE was the admissibility of refund of service tax paid under reverse charge mechanism (RCM) post implementation of GST. The outcome of this decision is the subject matter of discussion of our present update. The petitioner is engaged in providing various construction services to Government/ Private parties and was registered under the Service Tax Department. The service tax return for quarter from April 2017 to June 2017 was filed by 15.08.2017. Audit was conducted by CERA wherein it was pointed out that petitioner is liable to pay service tax as per Notification No. 22/2016 w.e.f. 01.04.2016 on services rendered under reverse charge basis for the period for which royalty was already paid by the petitioner to the Government for mining stones. The petitioner, therefore, deposited the amount of service tax along with interest on 31.12.2017. It was contended that since it is input service, credit of service tax shall be available. However, as per transitional provisions u/s 140 to 142 of GST Act, taxpayers were required to file GST TRAN-1 within 90 days from 01.07.2017 which was further extended to 27.12.2017. Since the petitioner paid service tax on 31.12.2017, the petitioner was unable to file TRAN-1 as per Section 140 of GST Act, 2017. The counsel of the petitioner argued that as per Section 142 of the Act, a person can file refund of cenvat credit available to them under “Miscellaneous Transitional Provisions”. It was argued that as the petitioner could not make application u/s 140 of the Act by filing TRAN-1, benefit as per Section 142(3) should not be denied. Further, it was argued that if the credit was accrued in petitioner’s account on 30.06.2017, claim u/s 140 (1) of GST Act, 2017 could have been made. Since the service tax itself was paid as on 31.12.2017, filing TRAN-1 was not possible. The Counsel of the petitioner argued that if the CENVAT credit claim for the period prior to 30.06.2017 can be claimed only if they pertain to the returns furnished in the said period. Further, as no claim accrued in return as on 30.06.2017, petitioner cannot claim refund of cenvat credit under GST. The departmental representative submitted that Section 142(3) of GST Act is related to refund application only. It was contended that to claim refund, Rule 3 & 4 of CENVAT Credit Rules should have been fulfilled wherein one such condition is that the manufacturer cannot take CENVAT credit after 1 year of date of issue of any documents which in the present case already expired. The court held that as per provisions of Section 140(1) of CGST Act, 2017, the credit eligible as on 30.06.2017 should only be carried forward. It was further analyzed looking into the facts of the case that the services although were rendered before 30.06.2017, but payment of service tax was however made in December 2017. It was further held that in case no GST would have been introduced, the petitioner would be able to claim input credit easily. Merely because of transition phase, the petitioner is unable to claim credit. Further, the Court placed emphasis on “Doctrine of Necessity” and placed reliance on Mohapatra and Company and another Vs. State of Orissa and another [1985] 1 SCR 322, (1996) 4 SCC 104, Election Commission of India and another Vs. Dr.Subramaniam Swamy and another and also in (2006) 3 SCC 276 in State of U.P. Vs. Sheo Shanker Lal Srivastava and others, Duncan Agro Industries Limited Vs. Union of India. It was held that as per “Doctrine of Necessity” if there is no provision for a situation in law, the assessee cannot be made remediless and so in the absence of specific provision for the case, the petitioner cannot be denied the substantial benefit of input tax credit. Consequently, the High Court directed to re-consider the application u/s 142(3) of CGST Act, 2017 and pass the decision accordingly. However, it was specified that the claim need not be considered for refund but for permitting the petitioner to carry forward the accrued credit to the electronic credit ledger of the GST regime. The above judgment rendered by the High Court is contrary to the favourable decisions pronounced by the Tribunals. Reference may be made to decision given in the case of FLEXI CAPS AND POLYMERS PVT. LTD. VERSUS COMMISSIONER, CGST & CENTRAL EXCISE-INDORE [2021 (9) TMI 917- CESTAT NEW-DELHI] that has allowed refund of CVD and SAD paid on default in export obligation with respect to imports made under advance license in the GST regime for which availment of credit was not possible. Similarly, refund of service tax paid under RCM on import of software was allowed by the CESTAT in the case of M/S. CIRCOR FLOW TECHNOLOGIES INDIA PRIVATE LTD. V/S THE PRINCIPAL COMMISSIONER OF GST & CENTRAL EXCISE by placing reliance on the decision given in the case of ADFERT TECHNOLOGIES PVT. LTD. VS UOI wherein it was held that transitional credit being a vested right, it cannot be taken away on procedural or technical grounds. The decision of Madras High Court is setback to the assessees as it does not allow the benefit of refund but only directed the department to allow the petitioner to carry forward the accrued credit to the electronic credit ledger in the GST regime. As we all know that availment of input tax credit in the electronic credit ledger is digitized and there being no specific provision for the situation discussed, considerable technical issues may be faced by the petitioner for implementing the said decision of the High Court.
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com