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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 224 on blocking of credit without recording reasons

GST Update No 224 on blocking of credit without recording reasons
The concept of blocking of credit in accordance with provisions of Rule 86A of CGST Rules, 2017, had been a matter of discussion since long as the powers of the revenue authorities to invoke the same has increased manifolds. The undue hardships faced by the honest recipient as regards to blocking of credit ledger due to default of supplier, tantamount to equating default of recipient with that of supplier. Further, insertion of Section 43A of CGST Act, 2017, has added fuel to the fire prescribing that both the supplier and recipient shall be jointly and severally liable for discharging their liability. The tussle between the departmental authorities and taxpayers in this respect remains intact which compels the assessee to knock the door of courts. One similar line, one of the case was reported before hon’ble Gujarat High Court in the case of M/S NEW NALBANDH TRADERS VS STATE OF GUJARAT. The decision imparted in this case is subject matter of our present update.
 
The petitioner is a proprietary concern and engaged in trading of M.S. Scrap wherein purchases and sales are made to different entities. The purchases made from one supplier i.e. M/s Anmol Enterprises were duly received along with invoices, e-way bills etc. and were reflected in GSTR-2A as well. However, upon checking it was noticed that input tax credit of Rs. 97 Lakhs was blocked by the departmental authorities without assigning any reasons. Upon enquiry for reasons, no response was received by the petitioner.
 
The Counsel of the petitioner argued that the departmental authorities have erred in their approach since no reasons were conveyed to the petitioner failing which the dealer would not be able to know reasons of blocking of credit and furnishing reply thereof. It was further conveyed that the petitioner is a bona fide purchaser of the goods and should not be penalised for the default of the supplier.
 
The Counsel of revenue submitted that the authority arrived at this conclusion on the basis of some vital information in his possession. Furthermore, intimation in DRC-01A sent to the petitioner was also submitted before the Court. It was argued that Rule 86A is invoked to protect the interest of the revenue only.
 
The Court analysed the provisions of Rule 86A of CGST Rules, 2017 along with Section 16 and 43A of CGST Act, 2017. It was held that Rule 86A confers drastic powers to the proper officers to block the credit if they have reason to believe to do so. Although, it is a rational term which can be interpreted independently. Reliance was placed on the decision of same bench in the case of Samay Alloys India Pvt. Ltd. Further, it was stated that Rule 86A would be invoked provided two pre-requisites are fulfilled i.e. the authority must have reasons for blocking of credit and secondly reasons are to be recorded in writing before exercising of power. It was further stated that provisions of Rule 86A of CGST Rules, 2017 cannot be invoked merely on the basis of whims or imaginations since it is an administrative power and acts as an obstruction to right of taxpayer to utilise the credit available in ledger. Further, it must satisfy the test of reasonableness and must be exercised fairly and reasonably. Reliance in this respect was placed on decision of Maneka Gandhi Vs. Union of India : AIR 1978 SC 597. Further, principles of natural justice are required to be followed, which however may differ from case to case.  It was held that as far as second leg of requirement is considered, Rule 86A can be invoked provided reasons of the same are recorded in writing. The use of word “may” has to be interpreted as “must be recorded” since invoking the said rule brings adverse consequences upon the person against whom the order is passed. Importance to the concept of “Doctrine of Fair Play” as also given and it was stated that the tread of the same runs through wrap and weft of the fabric of the Constitutional Order made up by Article 14 and 21 of the Constitution of India. It was stated that justification of invoking of the said Rule can be made only by recording reasons in writing. Reference was drawn to the decision of Bombay High Court in Dee Vee Projects Ltd. V/s Union of India & Ors. Therefore, it was directed to revenue authorities to satisfy the pre-requisites of invoking Rule 86A failing which will render the same as unsustainable in the eyes of law and arbitrary exercise of powers.
 
Moreover, it was held that there is no system-based matching of ITC being carried out presently and the recipient are eligible to claim ITC provisionally on the basis of invoice issued. Reference was placed on the decision Delhi High Court in the case of Quest Merchandising India Pvt. Ltd. v/s Govt. of NCT of Delhi, W.P. (C) 6093 of 2017 dated 26.10.2017 wherein it was held that it is impossible task to ascertain that the seller have made payment of tax to the Government and therefore, assessee cannot be held liable for the same if due diligence is exercised appropriately. The revenue authorities initiate proceedings against the seller and not the purchaser. Reliance was placed on the decision of Madras High Court in Sri Vinayaga Agencies v. Assistant Commissioner, W.P. Nos. 2036 to 2038 of 2013, dated 29.01.2013 and Punjab and Haryana High Court in Gheru Lal Bal Chand v. State of Haryana, Civil Writ Petition No.6573 of 2007. The impugned order was quashed accordingly.
 
The above favouring decision is another development with respect to arbitrary blocking of credit without recording justifiable reasons. The Court properly emphasized the possible misuse of powers by revenue to harass the taxpayers. There had been catena of Judicial Pronouncements wherein the constitutional validity of the aforesaid Rule is challenged by the aggrieved taxpayers. Reference can be made to petition filed before Calcutta High Court in the case of M/s MRS REALTY PRIVATE LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [WP No. 8142 of 2021]. On the other hand, the taxpayers have to exercise extra care and be cautious about selection of supplier. It is hoped that the Government comes with a provision so that innocent and honest taxpayers would not suffer at the cost of defaulting and dishonest taxpayers otherwise the idea of ease of doing business in GST Law would not sustain.
 
 
 
 
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