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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. 233 ON CIRCULAR REGARDING REFLECTION OF INELIGILBE CREDIT-PART-2

GST UPDATE No. 233 ON CIRCULAR REGARDING REFLECTION OF INELIGILBE CREDIT-PART-2
In our previous update, we had brought out the anomaly in the clarification issued by the CBIC on reflection of ineligible credit vis a vis circular issued by the Rajasthan State GST department. In the present update, we wish to discuss the practical difficulties in implementation of the guidelines laid down by the recent Circular No. 170/02/2022-GST dated 06.07.2022 issued by the CBIC.
It has been clarified that since the auto-populated figure of input tax credit from FORM GSTR-2B in table 4A of the GSTR-3B consists of ineligible input tax credit under section 17(5) of the CGST Act, 2017, the assessee is required to reflect reversal of the credit under section 17(5) of the CGST Act, 2017 in table 4B(1) so that the net input tax credit in the electronic credit ledger does not consist of ineligible credit. It is submitted that majority of the taxpayers do not account for ineligible input tax credit in their books of accounts as it is very tedious to maintain the record of ineligible credit. Consequently, many of the assessees do not even bother to reflect the amount of ineligible credit in table 4D(1) of the GSTR-3B. However, the clarification expects that the assessee identifies the ineligible credit which is auto-populated in table 4B (5) and reflect it as reversal under table 4B(1) of the GSTR-3B. In our opinion, this is futile exercise as it compels the assessee to keep track record of ineligible credit which is not even being accounted for in the normal course by majority of the assessees. This will definitely add to the compliance burden of the taxpayers. Moreover, as per section 17(5) of the CGST Act, 2017, input tax credit is not available to the assessee for certain specified goods and services, but the circular requires the assessee to avail the said ineligible credit and thereafter reflect it as reversal which is unproductive exercise. The circular prescribes a mechanism of reflection of ineligible credit by considering the report generated by the GST portal in FORM GSTR-2B which is not proper as merely because ineligible credit is being included in the auto-populated figure, the taxpayer cannot be forced to change their accounting of transactions.
It is further submitted that the circular also specifies that in case the assessee has not received the goods but the input tax credit pertaining to the said invoice is being reflected in the auto-populated figure of table 4A of the GSTR-3B, the assessee is required to reflect the said amount of ITC as reversal in table 4B(2) and can re-claim it when the goods are actually received in the premises. This again is a cumbersome exercise as the assessee would be required to keep a track record of the goods in transit and the fact that the ITC is being re-claimed on their actual receipt. It appears that the above directions have been issued so that the auto-populated figure of ITC in table 4A is being re-conciled. However, it is submitted that the assessee will have to re-claim the said ITC of goods in transit in the subsequent return due to which there will be discrepancy in the figure as stated in the GSTR-3B and that auto-populated from FORM GSTR-2B. Consequently, in our view, the above direction leads to unwarranted exercise on the part of assessee and should be re-considered by the government. Moreover, no assessee will record such goods not received in books of account. Hence, he has to manually maintain this information on monthly basis as department may ask this information after 4 or 5 years at the time of audit of taxpayer. Keeping record of this information for so many years which are not incorporated in accounts also is again cumbersome procedure.
In opinion of author of this update, this recording is also not legally sustainable as there is clearcut provision in statue that the ineligible credit as well as credit on goods-in-transit should not be taken. Although there are many decisions on this count that taking of credit and reversing the same means that the credit has not been availed. But nobody knows that Auditor General may object the same and ask for penal action. 
Lastly, the requirement of reflecting the ineligible ITC on account of limitation of time period as delineated in sub-section (4) of section 16 of the CGST Act, 2017 is yet another procedural liability to be discharged by the assessee by maintaining the list of transactions for which input tax credit is not available on account of being not claimed within the period of limitation. It is to be noted that this data can be compiled only in the month of November following the relevant financial year.
The above clarification increases the procedural compliance of the taxpayers’ manifold which has no revenue implication as such. The guidelines laid down by the circular should not be made mandatory as it would lead to unnecessary harassment of the assessees.
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