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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 242 on availability of ITC on demo cars

GST Update No 242 on availability of ITC on demo cars
The availability of Input Tax Credit on demo cars has been a matter of extensive litigations and disputes since inception of GST regime. The confusion in this respect prevails in the minds of taxpayer day in and day out. Despite of various advance rulings are sought by the aggrieved applicants, it is quite disheartening that the issue under consideration has not come to an end. Once again, one more advance ruling was reported in the same beeline before West Bengal AAR in the case of M/s Toplink Motorcar Private Limited. The decision imparted in this case is subject matter of our present update. The applicant is an authorised dealer of Hyundai Motor India Limited for supply of various ranges of motor vehicles and carrying on business activities as an authorised service station. The applicant submitted that the vehicles were purchased against the tax invoices and are capitalised in the books of accounts. The vehicles are displayed as demo cars for customers to make them understand the features of vehicles. Advance ruling was sought by the applicant as to whether the input tax credit shall be available in respect of outward sale of vehicle. The applicant submitted that the demo cars purchased are an essential part of marketing and sales and promotion to facilitate sale of cars. Reliance was placed on various advance rulings such as M/s Titania Products Private Limited, M/s Titan Motocorp, M/s Singhania Future Private Limited wherein the Jharkhand AAR delivered that Input credit can be availed on demo cars subject to certain prescribed conditions which are as follows: - 1. Maximum of one demo car of each model must be maintained by the company till final disposal and before acquiring new demo car. Further, it should be shown as capital goods. 2. No depreciation is to be claimed on it. 3. GST Liability is to be created upon sale of demo car u/s 18 4. Separate account is to be prepared of inward and outward supply of demo cars along with balance sheet and P&L. Reliance was also placed on the advance ruling pronounced in the matter of Chowgule Industries (P) Ltd and decision of Kerala AAR in the case of M/s A.M. Motors wherein it was delivered that no restriction is imposed u/s 17 of CGST Act, 2017 and thereby, input tax credit can be availed by the taxpayer. The Revenue refrained from expressing any view in this respect. The AAR observed that applicant is engaged in business of supplying cars to the customers for which demo cars are also purchased for demonstration/ test drive purpose. The demo cars are kept with applicant only for limited purpose. In this respect, it was held that a test dive policy was furnished by the applicant wherein usage time of demo cars is to be 12 months from the date of approval. These demo cars are supplied further at applicable tax rates once the test drive period is over. Reference was made to Section 16 and 17 of CGST Act, 2017. It was held that the applicant maintains a stock of demo vehicle and thereafter supplies the same at lower price. Further, in accordance with the restriction u/s 17 (5)(a)(A) of CGST Act, 2017 i.e. ITC shall be available provided supplier is engaged in making further supply. However, since no there is no time limit prescribed for making further supply, ITC shall be available to the taxpayer being in the course and furtherance of business. Further, the word “such” in the said Section bears a wide connotation and does not put any restriction in respect of supply of demo cars. Therefore, it was concluded that the input tax credit in this respect can be claimed by the applicant concerned. The above ruling although being in favour of the trade and industry has once again increased the burden of taxpayers and does not serve the desired objective. There had been various divergent rulings pronounced by the AAR as regards to the subject matter. To illustrate, Haryana AAR in the case of M/sBMW India Pvt. Ltd., M/s Platinum Motocorp LLP delivered that input tax credit shall not be available on demo cars. Although it is well known that the advance rulings are pro-revenue, however, a due clarification from Government’s end is what is anticipated at the earliest possible to put an end to these unwanted litigations in the near future. Failing this, the assesses will continue to suffer the ill-effects and harassments from the revenue department in addition to high cost of litigation.
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