Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
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.  

Comments

Print   |    |  Comment

GST UPDATE No 237 ON ANALYSIS OF CIRCULAR ON FAKE INVOICES:-

GST UPDATE No 237 ON ANALYSIS OF CIRCULAR ON FAKE INVOICES:-

It has been commonly observed that revenue authorities often raise demand of tax, interest and penalties on every supplier in the fake invoice racket chain. It was represented by the trade and industry to the government that suitable measures should be taken to ensure that the revenue authorities are not resorting to recovery of demand along with penalties from all the persons involved in the fake invoice chain. It appears that the government has realised that the officials need to understand on whom the demand of tax, interest and penalty is to be raised in the fake invoice racket. The analysis of the clarification issued vide CIRCULAR NO. 171/03/2022-GST DATED 06.07.2022 is the subject matter of discussion of our present update. Our earlier update explaining the contents of the circular can be accessed at the following link Update No. 235 on circular issued for fake invoice.

NAME OF SUPPLIER

WHETHER ACTUAL SUPPLY OF GOODS?

WHETHER RECOVERY OF DEMAND UNDER SECTION 73/74

WHETHER PENALTY UNDER SECTION 122

REMARKS

TRADER A

No

No, as there is no supply of goods.

Yes, penalty under section 122(1)(ii) for issuance of tax invoice without actual supply of goods.

As, A is the starting point in fake invoice racket, only penalty under section 122(1)(ii) would be leviable. No penalty for availment of fraudulent credit under section 122(1)(vii).

TRADER B

No

No, as there is no supply of goods.

Yes, penalty under section 122(1)(ii) for issuance of tax invoice without actual supply of goods. Also, penalty under section 122(1)(vii) for availing or utilising input tax credit without actual receipt of goods either, fully or partially.

Penalty under section 122(1)(ii) and 122(1)(vii).

MANUFACTURER C

Yes

Yes, department will recover the wrongly availed credit utilised for discharging output tax liability under section 74 along with interest under section 50 and applicable penalty under section 74 on actual supply of Aluminium ingots.

No penalty under section 122 because as per section 75(13), if penalty has been imposed under section 73/74 then no penalty can be imposed for same default under any other provision of the CGST Act.

Recovery of demand of ITC along with interest applicable as goods have been actually supplied by C thereby attracting GST liability on supply of aluminium ingots. However, as fake invoice credit is utilised, it results into loss of tax to the government on output supplies.

 

 

KEY TAKEAWAYS FROM THE ABOVE EXAMPLE:-

1.                 The trader merely involved in passing on the fake invoice credit earned without actual supply of goods will not be fastened with the recovery provisions as there will be loss of revenue to the government only when there is supply of goods attracting GST liability for which such fake credit has been utilised. Now, the question arises is whether recovery of ITC was possible if in the above example, C is trader but supplies scrap by purchasing from market to D? The answer would be “Yes” because the transaction would lead to loss of revenue by short payment of GST on the supply of scrap by D. Hence, it would not really matter if the actual supply of goods is being made by trader or manufacturer.

 

 

2.                 If in the example, C is a trader of scrap. However, C utilises the credit earned by it from fake invoices partially on the actual supply of goods and partially on mere invoices issued for passing fake invoice credit earned. The situation is not covered by the clarification as there is possibility that the entire fake invoice credit has not been passed on as it is basis but is being utilised for discharging GST liability on actual supply of goods. In such a case, C would be at disadvantageous position as the department would demand entire ITC earned and so the benefit claimed by Trader A and B by invocation of only penalty provisions under section 122 would not be available to C.

 

3.                 Whether department can still recover tax/interest or levy penalties on suppliers D to M when the department has made recovery of fake invoice credit utilised by manufacturer C along with interest and penalty under section 73/74 of the CGST Act? In our opinion, once the transaction has been regularised by actual supply of goods in case of fake invoice racket chain, the subsequent suppliers should not be issued notices for recovery of tax/interest or penalties under either of the sections. However, it is commonly observed that the department catches supplier M and invokes the provisions of section 73/74 for recovery of tax/interest and penalty. On the contrary, reality is that supplier M is a bonafide supplier availing and utilising credit on the strength of valid GST invoice and actual receipt of goods. It is irony that the clarification issued by the circular would be extremely difficult to be implemented in practical scenario as department is not able to trace the point where the transaction has been regularised, as stated in our example to be at point of sale by manufacturer C.


 

In order to better understand the various points, we hereby present a diagrammatic presentation of the various suppliers in the fake invoice chain:

 

 

We submit that thereafter, the transaction of supply of aluminium ingots by the trader D to E was regularised. The transaction of supply went upto Trader M in the chain.

Now, we make the following observations in light of the clarification issued by the CBIC:-

 

Department News


Query

 
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