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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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GST Update No 235 on circular issued for fake invoices

GST Update No 235 on circular issued for fake invoices
The GST law was introduced to make compliances digitized so that the cases of fake invoices could be eliminated. The implementation of the concept of e-way bill and e-invoices is an initiative in this regard. However, the disputes related to instances of “invoice without supply” or “supply without valid GST invoice” are commonly observed. It is observed that in fake invoice cases, often the revenue department slaps show cause notices to every supplier in the credit chain but whether recovery of demand of tax is to be made from each of the supplier is the moot question which remains unanswered. Recently, CBIC has issued a CIRCULAR NO. 171/03/2022-GST DATED 06.07.2022 clarifying applicability of demand and penalty provisions on the transactions involving fake invoices. The present update seeks to discuss the aforesaid circular.
 
The recent circular discusses applicability of penalty and demand provisions on following issues in respect of fake invoices issued by one registered person to another, thereby highlighting the consequences of “invoice without supply”: -
 
1.      Registered person “A” issues tax invoice to registered person “B” without supply goods. Whether the transaction be treated as “supply” under Section 7 of CGST Act, 2017 and whether any demand, recovery and penal actions can be initiated against “A”- It is clarified by CBIC that since only tax invoice is issued by “A” to “B” without any actual supply of goods, the above   transaction does not fall under the definition of supply under Section 7 of CGST Act, 2017. Since there is no supply, no tax liability arises against “A” and accordingly, no demand and recovery can be initiated against “A” in accordance with provisions of Section73 and 74 of CGST Act, 2017. However, he shall be liable for penal action under Section 122 of CGST Act,2017.
 
2.      Registered person “A” issues tax invoice to registered person “B” without supply goods. “B” availed input tax credit on the basis of tax invoice and utilised the same against discharging output tax liability. Whether “B” will be liable for demand and recovery of ITC along with penal action under Section 73 and 74 of CGST Act, 2017 – It is clarified that “B” has availed and utilised ITC fraudulently without actual receipt of goods and thereby contravened the provisions of Section 16(2)(b) of CGST Act, 2017. Therefore, he shall be liable to pay back wrongly availed ITC under Section 74 of CGST Act, 2017 along with applicable interest under Section 50 of CGST Act, 2017. Furthermore, as per Section 73(13) of CGST Act, 2017, if penal action is initiated against Section 74 of CGST Act, 2017, no penalty can be imposed under Section 122 of CGST Act, 2017.
 
3.      Registered person “A” issues tax invoice to registered person “B” without supply goods. “B” availed input tax credit on the basis of tax invoice and passed on ITC to “C” by issuing invoice without supply of goods. Whether demand and penalty can be initiated against “B” under Section 73 or 74 of CGST Act, 2017- The CBIC seeks to clarify that no tax liability is attracted on “B” since there is no supply of goods to “C”. However, ‘B’ shall be liable for penal action both under section 122(1)((ii) and section 122(1)(vii) of the CGST Act, for issuing invoices without any actual supply of goods and/or services as also for taking/ utilizing input tax credit without actual receipt of goods and/or services.
 
The above circular seeks to clarify various instances of fake invoices and consequences to be faced by the parties dealing in fake invoices.  Although it is well settled that in case due diligence has been exercised appropriately by the recipient taxpayer and goods have been further supplied under the cover of proper invoice, no penal action can be taken against the bonafide taxpayer. This is backed by various judicial pronouncements such as decision of Orissa High Court in the case of M/S BRIGHT STAR PLASTIC INDUSTRIES V/S ADDITIONAL COMMISSIONER OF SALES TAX (APPEAL) & ORS. The above clarification is a sigh of relief for the taxpayers as far as the confusion regarding recovery of tax along with interest is concerned from the recipient in the supply chain because it appeared that department would recover the tax along with interest from all the persons in the supply chain. It is hoped that the clarification issued by this circular is scrupulously followed by the departmental authorities. 
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