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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 268 on eligibility of ITC on lifts

GST Update No 268 on eligibility of ITC on lifts
The concept of seamless flow of input tax credit and elimination of cascading effect was the baseline because of which GST Law came into existence. However, with the passage of time, it seems that the issues pertaining to input tax credit are no longer free from litigations and disputes. Further, the concept of blocking of input tax credit under Section 17(5) adds fuel to fire thereby increasing the miseries of taxpayers. The tussle as to availability of input tax credit on plant and machinery affixed to Earth continues since erstwhile indirect tax regime. Recently, issue regarding admissibility of ITC on lifts was raised before Madhya Pradesh AAAR in the case of M/S JABALPUR HOTELS PRIVATE LIMITED. The decision imparted in this case is the subject matter of discussion of our present update. The appellant company was established with a project of construction of multistoried hotel in Jabalpur having approximately 100 rooms. Therefore, to provide facility to guest, lift would be required in the hotel premises. The appellant filed an application before AAR and sought advance ruling as to whether input tax credit be available on purchase of lifts. Aggrieved from the negative order of AAR, the appeal was further preferred to AAAR. The appellant argued that conditions as prescribed under Section 16 of CGST Act, 2017 are complied with and therefore, input tax credit stands available since the lifts are used in the course or furtherance of business. Further, it was contended that the AAR erred in its view of not considering lift as plant and machinery. The AAR has defeated the basic purpose of seamless flow of input tax credit in GST. It was submitted that the lift is a machine having HSN 8428 and hence, the input tax credit is not blocked in accordance with provisions of Section 17(5) of CGST Act, 2017. Furthermore, the lift is Hydraulic lift and can be installed or uninstalled without damaging any part of building. It was submitted that the officer has mis-interpreted the provisions of Section 17(5)(d) of CGST Act, 2017 stating that any plant and machinery attached to land, building orcivil-structure, telecommunication tower and pipelines outside the factory shall not be considered as plant and machinery. The officer agreed that the lift is a plant and machinery however, since it is installed in factory, it becomes integral part of building and hence, no input tax credit can be claimed. Reference was drawn by appellant to CBIC Circular No.58/1/2002-CX dated 15.01.2002 wherein meaning of movable and excisable goods was provided. It was further submitted that to consider the items to be permanently attached, two-fold test of (i) extent of annexation and (ii) object of annexation is to be considered. The extent of annexation means annexing the object ceases to be detachable. It would stand demolished once it is removed and the commercial character of the asset remains intact. The object of annexation means whether the intent of annexing movable property with immovable property was of permanent beneficial enjoyment or not. Since, the lift was purchased in the course or furtherance of business, it cannot be deemed to be part of civil structure just because it was fastened with nuts and bolts. Reliance was placed on various Judicial Pronouncements stating that the machine is not immovable property such as : 1. Sirpur Paper Mills Ltd V/s Collector of Central Excise 2. Commissioner of Central Excise V/s Solid & Correct Engg. Works & Ors. 3. Municipal Corporation of Greater Bombay & Ors. V/s Indian Oil Corporation Ltd. 4. T.T.G. Industries Ltd. V/s C.C.E, Raipur 5. Essar Telecom Infrastructure Pvt. Ltd. on Mobile Towers by Karnataka High Court which differed with the view of Bombay High Court in Hutchison Max Telecom P Ltd. It was further submitted that the lift installed in hotels in not customised life but a pre-designed lift. It can be easily installed with the help of nuts and bolts and does not require any specific modifications. It can be dismantled easily without causing any damage to the building and can be resold in the market. In this respect, certificate was also obtained from Engineer who designed the hotel building. Further, reference was also made to definition of immovable property under Excise regime. Reliance was also drawn CA. PRADEEP JAIN ??www.capradeepjain.com??pradeep@capradeepjain.com??5 to various rulings in erstwhile GST regime such as : 1. M/s Rattha Holding Co. Pvt. Ltd. V/s Commissioner of Central Services Tax, Chennai 2. Commissioner of Central Excise, Vishakhapatnam-II V/s M/s Sai Samhmita Storages (P) Ltd. 3. Commissioner of Central Excise & Service Tax V/s India Cements Ltd. 4. Commissioner of Central Excise Jaipur V/s Rajasthan Spinning & Weaving Mils Ltd. 5. Saraswati Sugar Mill V/s Commissioner of Central Excise Delhi III Reference was also drawn towards contrary Judgement delivered by Madhya Pradesh AAR in the case of M/s Atriwal Amusement Park. The AAAR analysed the provisions of Section 17(5)(d) of CGST Act, 2017, Section 3(26) of General Clauses Act. The AAAR also concluded that the officer mis-interpreted the provisions and therefore, the lift purchased in the course or furtherance of business cannot be deemed to be part of civil structure. Further, the lift installed in hotel is predesigned lift wherein no modifications are required and can be resold easily in the market without causing any structural damage. Further, it was held that the citations quoted by the appellant cannot come to the rescue of the appellant since they existed in erstwhile GST regime. The purchased cannot be qualified as goods but it is a works contract resulting into immovable property. Furthermore, no statements were made by the appellant regarding capitalization of lift expenses. Therefore, it was held that no input tax credit can be claimed by the appellant. The above decision is a setback for trade and industry wherein the decision goes against the spirit and purpose of GST Law i.e. seamless flow of input tax credit. Although, it is worth mentioning over here that decision of Orissa High Court in the case of M/s Safari Retreats Pvt. Ltd. allowing input tax credit availment on construction of mall sis challenged before Supreme Court, yet, adverse rulings like these defeat the basic intent of introduction of GST Law. Lift that can be detached is plant and machinery for which credit should be allowed. It is hoped that the decision of AAAR will be revisited.
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