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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 263 ON TAXABILITY OF RESIDENTIAL DWELLING UNDER RCM:-

GST UPDATE No 263 ON TAXABILITY OF RESIDENTIAL DWELLING UNDER RCM:-
The recent 47th GST Council Meeting had introduced payment of GST on services by way of renting of residential dwelling to a registered person under reverse charge mechanism. However, there are lot many issues that need clarification from the part of government. The present update seeks to discuss the various complexities of the amendment made and their GST implications thereon.
 
It is submitted that the exemption entry no. 12 of the notification no. 12/2017-Central Tax (Rate) dated 28.06.2017 regarding renting of residential dwelling has been amended which reads as follows:-
“Services by way of renting of residential dwelling for use as residence except where the residential dwelling is rented to a registered person.”
 
In contrast, the entry no. 5AA inserted in the notification no. 05/2022-Central Tax (Rate) dated 13.07.2022 pertaining to reverse charge mechanism reads as follows:-
Services by way of renting of residential dwelling to a registered person.
 
It is worth mentioning that the reverse charge notification simply mentions “renting of residential dwelling” and does not specify the usage of such residential dwelling. However, the exemption entry specifically uses the phrase “renting of residential dwelling for use as residence”. Now, the question arises is that whether renting of residential dwelling for use as office attract GST under reverse charge mechanism if given on rent to registered person. If the language of the reverse charge notification is examined, it can be inferred that renting of residential dwelling, even for purpose other than use as residence would attract GST under reverse charge mechanism as if at all the intention was otherwise, the language would have specifically mentioned the phrase “renting of residential dwelling for use as residence”. Hence, a clarification in this respect is much needed from the government.
 
Furthermore, the registered recipient would be required to pay GST under reverse charge mechanism but the question arises is the determination of the nature of tax to be paid. According to section 12(3)(b) of the IGST Act, 2017, the place of supply of services by way of lodging accommodation by a hotel, inn, guest house, home stay, club or campsite, by whatever name called, and including a house boat or any other vessel shall be the location at which the immovable property or boat or vessel, as the case may be, is located or intended to be located.  Hence, in case of renting of residential dwelling, the place of supply will be the location of such residential dwelling. The nature of tax that will be leviable depends on the location of the supplier and the place of supply. The determination of the nature of tax is explained with the help of following examples:-
 
LOCATION OF SUPPLIER LOCATION OF RECIPIENT LOCATION OF RESIDENTIAL DWELLING PLACE OF SUPPLY NATURE OF TAX WHETHER REGISTRATION TO BE TAKEN BY RECIPIENT?
Maharashtra Rajasthan Maharashtra Maharashtra Maharashtra CGST/SGST Yes, in the state of Maharashtra
Maharashtra Rajasthan Rajasthan Rajasthan IGST No need to take registration
Maharashtra Maharashtra Maharashtra Maharashtra Maharashtra CGST/SGST No need to take registration
 
It is to be noted that in case where the location of supplier and the location of residential dwelling is in the State other than the state of recipient of service, the receiver is liable to pay the CGST/SGST of the State in which location of service provider is located; for which registration is required to be taken by the recipient in such State. Hence, in the situation no. 1 in the above table, the service recipient is liable to get registered in the State of Maharashtra for discharging its GST liability under reverse charge mechanism. This will lead to unnecessary compliance burden on the service recipient as they need to obtain normal GST registration also in Maharashtra. For example- if the residential dwelling is used as guest house by employees of the company, the said company will need to obtain normal GST registration for making payment of tax under RCM. However, the input tax credit of the tax so paid will not be available as it will be objected as restricted under section 17(5)(g) of the CGST Act, 2017 as goods or services or both used for personal consumption which will be considered as cost to the company. On the contrary, if the residential dwelling is being used for commercial purposes such as a marketing office, the recipient will need to obtain the normal GST registration in Maharashtra and ISD registration in Maharashtra so that the input tax credit of tax so paid by the normal registration in Maharashtra can be transferred to the recipient registered in Rajasthan via ISD located in Maharashtra.
 
The complexities as pointed out needs to be resolved by the government by issuing a suitable clarification so that unnecessary compliance burden can be avoided
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