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 261 on Summary SCN is not substitute of SCN

GST UPDATE NO 261 on Summary SCN is not substitute of SCN
The adjudication proceedings including issues related to show cause notice is prone to litigations since inception of GST. The departmental authorities are unwilling to issue proper show cause notices which are fundamental leg of initiation of adjudicating proceedings. Time and again there had been various Judicial Pronouncements delivered by various High Courts demonstrating its need failing which can result into quashing the whole adjudication proceedings. On similar lines, recently a case was reported before Jharkhand High Court in the case of M/S JUHI INDUSTRIES PVT. LTD. V/S STATE OF JHARKHAND. The decision imparted in this case is the subject matter of discussion of our present update.
Search was conducted at the premises of the petitioner under section 67 of JGST Act, 2017 on the grounds that petitioner claimed input tax credit without making payment of value and tax of inputs to supplier thereby, contravening the provisions of Section 16(2)(b) of JGST Act, 2017. Furthermore, it was argued that for the purchases made from the single supplier, no proof of payment exists and on physical verification, stock found was different from as maintained in books of accounts.
The counsel of petitioner submitted that proceedings started with issuance of summary show cause notices. Further, bonafide mistake was committed by the taxpayer and they submitted their reply explaining ITC has been legitimately claimed and goods are received by the taxpayer. However, demand order along with interest and penalty was passed by the departmental officers. The petitioner also filed rectification application in respect of the demand orders. Subsequently, the errors were considered and revised demand order was passed by the revenue authorities.
It was submitted by the petitioner that no show cause notice was issued to them which is mandatory in accordance with the provisions of Section 74 of CGST Act, 2017. Since, Form DRC-01 is not a substitute of show cause notice, entire proceedings are irregular and not sustainable. It was argued that service of show cause notice is mandatory and principles of natural justice cannot be ignored. Further, the use of “shall” indicates that the provision is mandatory and imperative in nature. Reliance in this respect was placed on various judicial pronouncements as well.
The counsel of respondent argued that a detailed e-mail along with summary SCN containing gist of accusations was sent to the petitioner which is sufficient to establish that proper adjudication procedure was followed by the departmental authorities. Further, since appropriate relied upon documents were also supplied to petitioner during the entire proceedings, principles of natural justice were also complied with. Furthermore, demand orders were revised after taking into consideration the rectification application filed by the petitioner.
The Court analysed the current situation and held that the law is no longer res integra as Rule 142(1)(a) of JGST Rules, 2017 provides that summary show cause notice should be issued along with show cause notice. Therefore, both the notices are to be issued simultaneously. Further it was stated that summary show cause notice should be issued electronically to keep a track record of proceedings, while show cause notice need not necessarily be issued electronically. Reliance was placed on the decision of M/S NKAS SERVICES PVT. LTD. V/S STATE OF JHARKHAND & ORS. It was stated that the proceedings suffered from material irregularity and therefore, not sustainable being contrary to provisions of Section 74 of JGST Act, 2017. Therefore, the revenue department cannot take benefit of the fact that summary of show cause notice cannot be considered as show cause notice. Reference was further drawn to the decision of Apex Court in the case of UOI V/S MADHUMILAN SYNTEX PVT. LTD. Therefore, it was directed to quash the show cause notices since ingredients of proper show cause notice were not fulfilled resulting into violation of the principles of natural justice.
The above decision is yet another example of the fact that improper show cause notice can lead to vitiation of the entire adjudicating proceedings initiated against the taxpayer resulting into severe consequences. There had been plethora of judicial rulings wherein show cause notices were set aside on similar grounds as stated in above case. Reliance can be placed on decision of Jharkhand High Court in the case of GODAVARI COMMODITIES V/S STATE OF JHARKHAND. It Is worth mentioning over here that proper procedure of issuance of show cause notice should be established by the Government in order to streamline the adjudicating proceedings. On the other hand, the departmental authorities should also adhere to settled Judicial Pronouncements in this respect.
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