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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 183 on tax implications on perquisites to employees

GST Update No 183 on tax implications on perquisites to employees
Applicability of GST and input tax credit thereon has been a matter of discussion in GST Law since long, especially when the question is related to transportation and catering services provided by employer to the employee. It is well known that services provided by employers to employee in form of food or transportation has a character of perquisite, yet, it is matter of debate among the minds of the taxpayers. Recently, one such issue was raised before Gujarat AAR in the case of M/S EMCURE PHARMACEUTICALS LIMITED. The outcome of this decision is subject matter of consideration of our present update. The applicant provides canteen and transportation facility to its employees without any profit motive which is part and parcel of HR policy. The applicant makes recoveries of the same at subsidized rates and engages a third-party service provider who in turn raises invoices along with applicable GST to the applicant. However, no recovery is made for bus transportation services. The buses are Non-Air-Conditioned having seating capacity of more than 13 seats. The applicant sought advance ruling on following: 1. Whether recoveries made by Applicant for canteen facility are taxable under GST? 2. Whether free of cost transportation taxable under GST? 3. If GST is applicable on transportation, whether applicant is eligible to avail exemption on the same? 4. Whether ITC is admissible to applicant u/s 16 of CGST Act, 2017 and if yes, to what extent? The applicant submitted that the recoveries made from employees are not covered under the ambit of supply as per Section 7 (1) of CGST Act, 2017. Further, it was submitted that the said services do not comes under the ambit CA. PRADEEP JAIN ??www.capradeepjain.com??pradeep@capradeepjain.com??4 of business since, the applicant is engaged in business of sales and promotion of pharmaceutical products only and not in the business of providing food to the employees. Reliance was placed on the decision given in the case of STATE OF GUJARAT V/S RAIPUR MANUFACTURING CO. LTD. [Appeal No. 603 of 1966]. Further, since canteen facility is not having any direct nexus with the principal business activity, it cannot be construed as incidental to the main business. References were made to following cases: • DEPUTY COMMISSIONER OF COMMERCIAL TAXES V/S THIRUMAGAL MILLS LTD. [1967 (20) STC 287 MAD] • PANACEA BIOTECH LIMITED VS. COMMISSIONER OF TRADE AND TAXES [(2013) 59 VST 524 (DEL.)] Furthermore, reliance was also placed on the press release issued by the Ministry of Finance dated 10.07.2017 wherein it is mentioned that services by employer to employee under employment agreement will not be subject to GST. It was further contended that the recovery made from the employees does not amounts to supply. Reliance was placed on following rulings: • In Re: M/s Amneal Pharmaceuticals Pvt Ltd., 2021 (9) TMI 1293 – Appellate Authority for Advance Ruling, Gujarat; • In Re: M/s Dishman Carbogen Amics Ltd., 2021 (8) TMI 836 – Authority for Advance Ruling, Gujarat; • In re: M/s Bharat Oman Refineries Limited 2021-VIL-73-AAAR The Madhya Pradesh Appellate Authority For Advance Ruling • M/s Jotun India Private Limited, [2019-TIOL-312-AAR-GST]. Maharshtra Authority for Advance Ruling • Advance Ruling in the case of M/s POSCO India Pune Processing Centre Private Limited [2019 (2) TMI 63]. It was further submitted that the free of cost facility of bus transportation provided by employer to employees is excluded from the scope of supply as defined u/s 7(2) (a) read with Schedule III of CGST Act, 2017. Reliance was placed on following rulings: • In Re: M/s Tata Motors Ltd., 2020 (9) TMI 352 – Authority for Advance Ruling, Maharashtra; • In Re: M/s North Shore Technologies Pvt. Ltd., 2021 (3) TMI 707 – Authority for Advance Ruling, Uttar Pradesh; CA. PRADEEP JAIN ??www.capradeepjain.com??pradeep@capradeepjain.com??5 • In Re: Tata Motors Ltd, 2020 (41) G.S.T.L. 35 (A.A.R. - GST – Guj.) • In Re: Dr Willmar Schwabe (I) Private Limited UP ADRG 79/2021 - Authority for Advance Ruling, Uttar Pradesh • In Re: Integrated Decisions and Systems India Pvt Ltd, [GST-ARA-116/2019-20 dated 16.12.2021] It was further contended that transportation of employees through usage of Non-AC buses would come under ambit exemption under Notification No. 12/2017- Central Tax (Rate) dated 28.06.2017. The applicant further stated its own Advance Ruling sought for the state of Maharashtra wherein Maharashtra AAR held that canteen services and bus services by the Applicant to the employees is not covered under the definition of ‘supply’ under GST and hence not liable under GST. It was also argued that it is eligible to avail input tax credit for GST on purchase of Canteen Services since, it is obligatory on the part of employer under Factories Act, 1948 to provide employees with canteen facility. Similarly, it was argued that input tax credit shall be available on bus services since the seating capacity is more than 13 persons. The revenue submitted that issues raised are already settled by Maharashtra AAR vide Order No. GST-ARA-119/2019-20/B-03 dated 04.01.2022. The AAR held that the canteen and transportation activity provided by applicant to its employees are made in the course or furtherance of business but is not the business of the applicant. It was further held that as far as admissibility of GST paid on these services is concerned, it was analysed that Section 17(5)(b)(i) ends with colon : and followed by proviso which ends with semi-colon. These two are important punctuations used to complete a sentence. It is therefore concluded that the legislature intended the said sub-clauses to be distinct and separate alternatives. Reliance was placed on decision of Apex Court in the case of PIL of Shri Jayant Verma v. Union of India, dated 16-2-2018 and Kerala High Court in the case of Mr. Vincent Mathew v. LIC of India dated 15-1-2013 wherein expression colon and semi-colon were explained. It was therefore, held following: 1. GST shall not be leviable on amount collected on portion of canteen 2. GST shall not be leviable on amount collected on free of cost transportation services provided by the applicant CA. PRADEEP JAIN ??www.capradeepjain.com??pradeep@capradeepjain.com??6 3. ITC paid on canteen facility stands blocked under Section17(5) of CGST Act, 2017 4. ITC on transportation facility is admissible since the seating capacity of bus exceeds 13 persons. The above issue has been a matter of dispute since there are various contrary rulings pronounced by AARs and AAARs on the same. The ruling is in contradiction with earlier rulings pronounced by Kerala AAR in Caltech Polymers Private Limited and Gujarat AAR in the case of Amneal Pharmaceuticals Private Limited wherein it was held that canteen recoveries amount to supply and liable to GST. On the contrary, in the case of Tata Motors, Gujarat AAR held that GST is not leviable on canteen supply. Although the rulings pronounced by AARs have persuasive value, contradictory views are always a matter of concern for the taxpayers. It is hoped that the Government issues appropriate clarification in this regard so as to avoid any further litigations on the subject.
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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