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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 219 on no time limit prescribed for refund u/s 142(9)(b)

GST Update No 219 on no time limit prescribed for refund u/s 142(9)(b)
Introduction of GST is a significant reform in the indirect taxation in the country wherein multiple taxes were consolidated under a single umbrella and replaced with one nation one tax. Since there was consolidation of various taxes, it was necessary to have transitional provisions in the frame to ensure smooth and hassle-free flow from erstwhile regime to the existing regime. However, there had been plethora of cases related to transitional provision as prescribed under Section 142 of CGST Act, 2017 wherein the assesses are denied carrying forward the credit or claim refund thereof from the erstwhile GST regime. One of such case was reported before CESTAT Delhi in the case of Punjab National Bank V/s Commissioner, Central Goods and Service Tax, Central Excise. The decision imparted in this context is the subject matter of discussion of our present update.
 
The petitioner is a scheduled bank, paying service tax under banking and financial services for the period ended on 30.06.2017. The ST-3 return was filed as on 14.08.2017 and Tran-1 was filed for unutilised credit of Rs. 5,38,330/-on the same date. However, upon filing of the same, mistake was noticed regarding omission in claiming CENVAT credit of Rs. 1,18,237/- on account of late receipt of invoices related to input services to which revised ST-3 return for the period 30.06.2017 was filed on 21.09.2017. However, post GST implementation, the transfer of credit in TRAN-1 could not have been revised and taken to GST regime and hence, refund claim was applied on 15.11.2018 of Rs. 1,18,237/-. The refund claim was rejected being time barred. Further, it was argued that the assessee failed to produce any concrete evidence to prove that incidence of tax was not passed on to any other person.
 
The Counsel of petitioner quoted Section 142(9)(b) of CGST Act, 2017 and submitted that in case return is revised after introduction of GST regime but within the prescribed time limit under the law and refund arises after filing of TRAN-1, the amount shall be refunded back to the assessee. Furthermore, it was contended that there is no scope in the present case to pass on the liability under service tax provision. Therefore, it was prayed to allow the appeal.
The Counsel of respondent relied on the impugned order.
The CESTAT after analysing the situation held that there exists no controversy regarding the amount to be refunded back. Furthermore, it was held that there is no scope to transfer any service tax liability since the credit is taken after the introduction of GST regime and filing of TRAN-1. Moreover, it is stated that no time limit is prescribed under Section 142(9)(b) of CGST Act, 2017, for claiming of refund. Therefore, the appeal is allowed.
The above decision is a favouring decision in alignment with various settled cases that the credit legitimately earned cannot be denied merely because of procedural lapses. To illustrate in the case of Adfert Technologies Pvt. Ltd V/s Union of India, Punjab and Haryana High Court held that transitional credit being vested right cannot be taken away on procedural or technical ground. This decision was upheld by the Hon’ble Supreme Court as reported in2020 (34) GSTL J138 (SC). It is well settled law that the procedures cannot override the law since they are only a delegated legislation. The taxpayers can take shelter of these settled judicial pronouncements by the judicial authorities wherein the same viewpoint is upheld. It is high time that the revenue authorities should understand the intent of legislation otherwise the assessees will be left with no other choice other than approaching the court.
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