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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 281 on Section 73 and 74 of CGST Act, 2017 to be invoked in case of disputed interest liability

GST Update No 281 on Section 73 and 74 of CGST Act, 2017 to be invoked in case of disputed interest liability
There had been catena of cases in the introduction phase of GST wherein the assessees failed to file appropriate and proper GST returns resulting into invocation of demand, interest and penalty provisions. However, time and again the revenue authorities are incompetent to provoke correct provisions of Law and hence, the Supreme Court and various High Courts come to the rescue of the taxpayers. Once again on similar parameters, one case was reported before Jharkhand High Court in the case of Bluestar Malleable Pvt. Ltd V/s The State of Jharkhand. The decision delivered in this case is subject matter of our present update.The petitioner was entitled to claim input tax credit of Rs. 3,11,43,255/- submitted a declaration regarding the same in TRAN-1. The accountant of the petitioner repeated the same claim in GSTR-3B furnished in July 2017. It was submitted that this repetition occurred due to human error, absence of adequate practice/familiarity in the working of the new concept of Goodsand Services Tax laws, which had been introduced in 2017 itself. Upon getting noticed of the same, it was rectified immediately in GSTR-3B for the month of July, 2018. It was submitted that the input tax credit was never utilized against the output tax liabilities. The departmental authorities demanded interest of Rs. 72,49,126/- in respect of irregularly availed credit. Meanwhile, the petitioner also filed an application seeking refund of excess amount available in cash ledger of Rs. 26,45,301/-. Although the departmental authorities sanctioned refund but the same was allowed after making adjustment of interest amount of Rs. 72,49,126/-. The part of refundsanctioned order was challenged as it relates to adjustment of refund against the demand of interest. Interest of Rs. 40,71,403/- was demanded by the revenue authorities. The appeal preferred against the same was also rejected.The petitioner submitted that the interest under Section 50 is compensatory in nature and thus cannot be levied if input tax credit is availed twice. Further it was argued thatproper procedure must be followed by the department for realization of interest. Also, no intimation of invoking Section 50 of the Act was initiated by the department.The Counsel of revenue submitted that the claim of taxpayer is not at all tenable since as per Section 42 of the Act, irregularly availed credit is to be reversed by adding the same in output tax liability in GSTR-3B for Aug, 2017.Further, there is facility of reversal of claim on common portal itself and hence, the plea of taxpayer that the online portal had shortcomings is not sustainable. It was argued that it is established law that ignorance of law cannot be an excuse for non-compliance of legal provisions. The petitioner trying to put their failure on online portal which is not appropriate. The department has correctly issued letterto deposit interest as per Section 50 of the Act. Further, necessary instructions were also taken from GSTN and appropriate query was made to GSTN. It was argued that procedure for reversal and reclaim of input tax credit is mentioned under Section 42 of the Act. There is provision in GSTR-3B return itself to reverse the credit in Column 4(B) under the head “ITC reversed”.The Court held that that question under consideration is whether interest is to be levied under Section 50 of the Act or under Section 73/74 of the Act. Reference was drawn to the decision of Mahadeo Construction Co. Vs. Union of India wherein it is stated that if any assessee disputes the liability of interest under Section 50 of the JGST Act then the revenue will have to follow the specific procedure as stipulated under Section 73 or 74 of the JGST Act. Looking into the present situation, it demonstrates that procedure under Section 73 or 74 of the Act is not followed. It was therefore decided to quash the appellate order. The matter is remitted back to revenue and issueorder is accordance with the Law.The above decision upheld the view that proper and due procedure needs to be followed by the subordinate authorities failing which will jeopardize the basic intention of law and leading to further quashing of appeal. It is high time that This will further lead to wastage of precious time of courts and of aggrieved taxpayers. Moreover, the interest is to be charged on credit taken and utilised. Even the amendment to this effect is incorporated in statue book with effectfrom 1.4.2022. Hence, interest should not be charged. Even the author of this update has also successfully pleaded the similar case before Chennai appellate authority that interest under section 50 ibid is to be charged when it is utilised. Even the case study on the same was posted by us on 26.10.2021.
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