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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 247 on SC granting last chance to file TRAN-1 by 31.10.2022

GST Update No 247 on SC granting last chance to file TRAN-1 by 31.10.2022
The implementation of the revolutionary tax reform being GST was not as smooth as was perceived as there have been number of disputes as regards the transition of erstwhile credit into the GST regime. With the passage of time, there had been plethora of cases wherein assessees have been denied the carry forward of the transitional credit into GST regime. This update seeks to discuss the latest decision rendered by the Apex Court in the case of UNION OF INDIA V/S FILCO TRADE CENTRE PVT. LTD. & ANR. which seeks to open the window for filing transitional return for all the assessees from 01.09.2022 to 31.10.2022. It is not the first time that the extension to file transitional credit to all the assessees has been granted by the Court by exercising their discretionary powers. On earlier occasion also, the hon’ble Delhi High Court in the case of BRAND EQUITY TREATIES LIMITED VERSUS UNION OF INDIA had held that the period of 90 days for claiming input tax credit in TRAN-1 is directory and therefore, the period of limitation of 3 years under the Limitation Act would apply. The Delhi High Court had directed the department to allow all assessees to claim input tax credit in TRAN-1 by 30.06.2020. This decision was remarkable as it provided extended time limit for filing transitional credit to all the assessees. However, it appears that the tussle regarding carry forward of transitional credit is alive even after 5 years of GST implementation which has led to intervention by the Supreme Court on this matter. The hon’ble Apex Court has directed the GSTN to open the GST common portal for filing Tran-1 and Tran-2 for 2 months w.e.f 01.09.2022 to 31.10.2022 thereby allowing all the taxpayers to file their transitional returns irrespective of the fact that they have approached the Court of Law or not. The extended time period is also applicable for revising the already filed transitional credits. Furthermore, in past, various High Courts have allowed the assessees to file transitional returns after the expiry of time limit on the grounds that proof regarding technical glitches faced by them was produced. However, the present judgment does not require that the benefit is to be granted only if there was technical glitch faced by the assessee and rather the benefit is available to all the taxpayers unconditionally. The Supreme Court has also stated that the GSTN is under a liability to ensure that they are no technical glitch during the said time for filing the transitional credit. The concerned officers are given 90 days thereafter to verify the claim of transitional credit and pass appropriate orders on merits after granting appropriate reasonable opportunity to the parties concerned. The Apex Court also mentioned that the GST Council may also issue appropriate guidelines to the field formations in scrutinizing the claims, if required. It is worth mentioning over here that now the above stated judgement will grow as a benchmark for thousands of cases which are pending and brining them to a logical end. Further, the above decision supports the basic principle that legitimate credit earned by the taxpayers is their vested right and therefore, should not be denied and withdrawn merely because of procedural lapses. The above ruling has well established the principle of equality thereby treating all the taxpayers who have claimed or failed to claim credit at equal footings. The above decision has proved to be a silver lining in the clouds for the business houses. Although, it is worth noting that 5 years have passed down the road since inception of GST regime, yet the assessees are struggling to transition their credit of erstwhile regime to the GST era. However, the Apex Court should have also deliberated on the burning issue regarding claim of credit of tax paid under reverse charge mechanism after implementation of GST regime as there is no express provision to either avail input tax credit or claim refund in such scenarios. Although, there are favourable decisions rendered by High Courts that have allowed credit of such tax in electronic credit ledger of the assessee or have granted refund of the said amount to the assessee. Similarly, the issue regarding re-credit of the amount debited by the assessees for claiming refund under Rule 5 of Cenvat Credit Rules, 2004 which has been subsequently rejected post implementation of GST needs to be considered with possible remedy to the taxpayer. Nonetheless, since the facility to revise the transitional credit has been granted, the assessees should be allowed to report such peculiar transactions so that the legitimately earned credit is not being lapsed for absence of express provision in the statue.
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