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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 266 on issuance of SCN without striking off irrelevant particulars

GST Update No 266 on issuance of SCN without striking off irrelevant particulars
It is trite principle of law that the show cause notice serves as an essential element to commence the adjudication proceedings. Consequently, if the allegations raised in show cause notice are not specific and vaguely drafted, it is sufficient to hold that proper opportunity of hearing was not offered to the aggrieved thereby resulting into violation of principles of and further increases the trouble of the tax officers. Recently, one case was reported before Jharkhand High Court in the case of M/s Bla Project Pvt. Ltd. V/s State of Jharkhand. The decision imparted in this case is subject matter of our today’s update.
 
The petitioner is registered under GST and is involved in the business of Works Contract and mining related activities. The input tax credit is utilised against output tax liability as per GSTR-3B. However, upon scrutiny of return, for the Financial Year 2018-19, discrepancy of Rs. 6.17 Lakhs was discovered on account of mismatch between GSTR-2A and GSTR-3B for which GST ASMT-10 was issued. The petitioner for the same and enclosed a summary of difference between GSTR-3B and GSTR-2A and contended that the difference is of Rs. 44,303/- and not of Rs. 6.17 Lakhs. However, no further response was received from the department for more than one year. Subsequently, to the surprise of petitioner, summary show cause notice in DRC-01 was issued alleging that excess input tax credit for the period April 2018 to March 2019 was issued. Further, a show cause notice under section 73 of the CGST Act, 2017 was also served on the same day directing the assessee to furnish the reply along with the supporting documents. The petitioner requested the respondent to re-calculate the difference in GSTR-2A and GSTR-3B. It was submitted that the discrepancy as notices in ASMT-10 differs from details as mentioned in summary show cause notice and show cause notice u/s 73 of the Act. However, no attention was paid to the explanations furnished by the petitioner and summary order in DRC-07 was issued on account of excess availment of input tax credit. It was further argued that the electronic credit ledger of the assessee was blocked for more than 1 year in violation of provisions of Rule 86A of CGST Act, 2017.
 
The counsel of petitioner submitted that proceedings are not undertaken in line with the provisions of Section 73 of CGST Act, 2017 since show cause notice does not indicate any contravention committed by the petitioner. It was argued that none of the irrelevant grounds were struck off. It was further submitted that summary show cause notice in DRC-01 cannot substitute show cause notice statutorily. Reliance was placed on decision of Apex Court in the case of M/s NKAS Services Private Limited V/s The State of Jharkhand and others. It was further submitted that the writ petition is maintainable despite of the statutory remedy available under Section 107 of CGST Act, 2017 since there is violation of principles of natural justice. Further, reliance was placed on decision of Hon’ble Supreme Court in the case of Assistant Commissioner of State Tax and Others V/s Commercial Steel Limited, Gujarat High Court in the case of M/s Alfa Enterprises V/s State of Gujarat. Further reference was made to the decision of Uttarakhand High Court in the case of Vimal Petrothin Pvt. Ltd. V/s Commissioner, CGST wherein it was held that input tax credit cannot be blocked for a period exceeding one year as per Rule 86A of CGST Rules, 2017. It was further stated that an appeal can be preferred under Section 73 of the CGST Act, 2017 only in case proper order instead of summary order is passed.
 
The Counsel of respondent referred to provisions of Rule 86A of CGST Rules, 2017 and the Gazette Notification dated 10.02.2020. It was further argued that mismatch of the above said amount is because of difference in GSTR-2A and GSTR-3B.
 
The Court held that the impugned notice does not fulfils the ingredients of proper show cause notice issued under Section 73 of the Act. Further, the summary show cause notice cannot substitute the proper show cause notice. It was therefore decided to remand the case back to the State Tax Officer and initiate fresh proceedings. It was held that the present writ petition is maintainable since there was violation of principle of natural justice. Reference in this respect was drawn to the recent decision of Apex Court in the case of Magadh Sugar & Energy Ltd. V/s State of Bihar & Others.
 
The above decision is one more addition on the subject matter upholding the view that the show cause notice is the fundamental leg of adjudication proceedings and hence, should be properly drafted. There had been catena of cases wherein the Judicial members decided on the similar issue. It is high time that these revenue authorities understand and inculcate the practice of issuing prompt show cause notices failing which will lead to pendency of cases in the Court of law and ultimately wasting the time of Court and the taxpayers.
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