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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 258 ON NON-PAYMENT OF RCM DUE TO OVERSIGHT NOT TO ATTRACT PENALTY

GST UPDATE No 258 ON NON-PAYMENT OF RCM DUE TO OVERSIGHT NOT TO ATTRACT PENALTY
Indirect taxation is complex as it seeks to cast responsibility to pay tax on the recipient under specified circumstances. However, at times, there is default in payment of taxes under reverse charge mechanism due to negligence or sheer clerical mistake on the part of receiver. In such cases, lenient view needs to be taken as regards imposition of penalty on the recipient. Recently, the issue regarding imposition of penalty under section 78 of the Finance Act, 1994 was raised before hon’ble Delhi Tribunal in the case of M/S UMED BHAWAN PALACE VERSUS COMMISSIONER, CGST, EXCISE CUSTOMS-UDAIPUR wherein it was held that non-payment of tax under reverse charge mechanism is revenue neutral situation for which penalty should not be imposed under section 78 of the Finance Act, 1994.
 
The department had invoked penal provisions against the appellant, M/s Umed Bhawan Palace for non-payment of RCM on 3 invoices of Rs. 41000/- attracting service tax under RCM of Rs. 5540/-. The appellant was providing services of accommodation in hotel and restaurant services and for the period, July 2012 to March 2016, appellant inadvertently did not discharge the tax liability under RCM on 3 invoices amounting to Rs. 5540/-. On pointing the same by the department, the appellant admitted his liability and paid the tax on 10/07/2017. However department in it’s demand notice raised demand for the equal amount of penalty under section 78 of the Finance Act, 1994 on the contention that assessee would not have paid tax had department not noticed the same.
The hon’ble Tribunal held that it was not deliberate mistake of assessee. It was only due to oversight of assessee that he didn’t pay the tax. Further as assessee has paid the applicable tax and is eligible to take CENVAT credit, therefore the situation is revenue neutral for tax department. Consequently, the Tribunal set aside the penalty under section 78 of the Finance Act, 1994.
 
The situation of paying the service tax first and claiming the credit/refund thereon is revenue neutral which was sustained in many cases. In the case of COMMISSIONER OF C.EX., VADODARA VS NARMADA CHEMATUR PHARMACEUTICALS LTD. [2005 (179) E.L.T. 276] tribunal quashed the notice on the grounds that when amount of Cenvat/Modvat credit wrongly availed is exactly equivalent to the amount of excise duty paid by not availing the exemption, the consequence is revenue neutral. Further in case of MAFATLAL INDUSTRIES LTD. VERSUS CCE, DAMAN [2009 (241) E.L.T. 153 (TRI.-AHMD)] AFFIRMED BY SC [2010 (255) ELT A77 (SC)], it was held that differential duty demanded from assessee is available as credit to his own unit, who was in a position to utilize the same so the situation is revenue neutral and the demand is not justified.
 
It is worth mentioning that the concept of revenue neutrality has also been acknowledged in GST regime where assessee has been granted refund of tax paid under RCM related to service tax as the credit of the same cannot be given by department. In this regard, reliance is placed on the decision given by hon’ble Chennai CESTAT in the case of M/S TEREX INDIA PVT. LTD. VERSUS THE COMMISSIONER OF GST & CE [FINAL ORDER NO. 42366/2021 DATED 11.10.2021] wherein refund of service tax paid under import of services under reverse charge mechanism has been granted by referring to the provisions contained in section 142(3) of the CGST Act, 2017. Similarly, reliance is being placed on the decision given in the case of M/s FINE AUTOMOTIVE AND INDUSTRIAL RADIATORS PVT. LTD. VERSUS THE COMMISSIONER OF GST [FINAL ORDER NO. 41396/2019 DATED 20.11.2019].
 
The dispute in revenue neutral cases would not arise if the departmental authorities follow the judicial discipline by placing reliance on the above cited decisions. There is no loss of revenue to the government exchequer in such cases so imposition of penalty on the assessee is unjustifiable.
 
 
 
 
 
 
 
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