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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 176 on exemption on service provided in relation to ASSET examination

GST Update No 176 on exemption on service provided in relation to ASSET examination
Bringing education sector under the preview of taxation has always been a sensitive issue since beginning as education is seen more as a social activity rather than commercial one. It is constitutional obligation of the government to provide free education and therefore, exemption has been provided in this respect. However, recently an issue was raised before the hon’ble Gujarat High Court in the case of EDUCATIONAL INITIATIVES PVT LTD V/S UNION OF INDIA as to whether conduct of examination by the applicant will be covered under the exemption granted with respect to services provided to the educational institutions. The petitioner filed application before AAR wherein it was held that the benefit of exemption notification is admissible to the petitioner. However, the revenue authorities filed appeal against the said order passed by AAR before Appellate Authority for Advance Ruling wherein the issue was decided against the assessee. Thereafter, aggrieved by the Order passed by the Appellate Authority of Advance Ruling, the present writ petition has been filed before the Rajasthan High Court. The decision imparted in this respect is subject matter of present update. The applicant is a private limited company engaged in products and solutions used in education segments. An advance ruling was sought as to whether the services by it to educational organisation related to ASSET examination is covered under exemption. It is mandatory for the students to give ASSET exams which are being conducted by schools in their own premises and marks are given after due weightage to the students ASSET score in semester and final exams. The exams can be taken either in online or in offline mode. The GAAAR rule out that the said activity is not exempted since services are not provided to the school and school is just a body by which fee is collected from the students, administration cost of which is provided to school. Reliance was placed on the “Flyer” issued by CBIC. CA. PRADEEP JAIN ??www.capradeepjain.com??pradeep@capradeepjain.com??5 The applicant therefore filed a Writ Application contending that GAAAR has erred in its approach without deliberating the difference between “assessment” and “examination”. It is further submitted that if the interpretation of the AAAR is adopted, it shall defeat the fundamental intent of Government to provide exemption to schools and colleges providing education facility. Reliance was placed on Circular No. 151/07/2021-GST dated 17.06.2021 issued by CBIC. Further, reliance was placed on the decision of West Bengal AAR in the case of ASHOK KUMAR BASU 2018(10) TMI, M/S. EDUTEST SOLUTIONS PVT. LTD., GUJARAT AAR (2018 (10) TMI 201) AND M/S. THE BANGALORE PRINTING AND PUBLISHING CO. LTD., KARNATAKA AAR (2019 (11) TMI 157 wherein it was held that service to educational institution includes services relating to conduct of examination such as service of printing question papers is exempt from GST. The Counsel of respondent submitted that AAAR has lawfully and correctly imparted right order. It was argued that the word “relating to” used in the S. No. 66 of the Notification No. 12/2017 dated 28.06.2017 cannot be interpreted in a manner to enlarge the scope of entry to include the ASSET within the scope. The Court held that the term “education” is not defined. Therefore, reference was made to the decision of Apex Court in the case of SOLE TRUSTEE, LOKA SHIKSHANA TRUST VS. CIT, (1976) 1 SCC 254 : AIR 1976 SC 10. It was held that the word education has a wider meaning covering all the matter related to imparting and controlling education. Reliance was further placed on the decision of Supreme Court in the case of K. SHYAM SUNDER (2011) 8 SCC 737 wherein it was held that examination is always considered as a best measure which revolves around education and evaluates the performance of the candidate. In the present case, the applicant is suppling ASSET to various educational institution which are covered under the definition of educational institution. It was stated that two conditions are to be satisfied to be eligible for the exemption. Firstly, the recipient of services should be educational institution and secondly the services should be in the nature of education. Further, it was held that the term “in relation to” has been a matter CA. PRADEEP JAIN ??www.capradeepjain.com??pradeep@capradeepjain.com??6 of interpretation in various courts. Reliance was placed on decision of Apex Court in the case of DOYPACK SYSTEMS (P) LTD VS UOI 1988 (36) ELT 201 SC wherein it was held that the said word carries a wider meaning. It was further held that it is well-settled that even in tax statutes, an exemption provision should be liberally interpreted to achieve the basic objective and intention of the exemption. Therefore, it was held that the services shall be exempt vide Notification No. 12/2017 dated 28.06.2017. The above ruling is a sigh of relief for the taxpayers engaged in providing ancillary educational services. The above subject matter has been prone to litigations since inception as the Courts are flooded with number of cases on the same. To illustrate, in the case of MANAGEMENT & COMPUTER CONSULTANTS, WEST BENGAL AAR, it was held that no GST shall be leviable on services related to conduct of examination for education board. The above decision by Gujarat High Court is having a binding effect on the department. It is high time the authorities should follow these Judicial Pronouncements and avoid taking unreasonable steps resulting into harassment of tax payers.
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