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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 294 on non-payment of tax collected by railways to the government

GST Update No 294 on non-payment of tax collected by railways to the government
It is well settled principle that the taxpayers cannot be burdened with demand and penalty merely because of unintentional mistakes. It is often observed that the tax liability to be discharged under reverse charge mechanism is actually remitted by the recipient to the supplier but the government catches the recipient and fastens demand on them. It appears that revenue authorities are under a habit of punishing the taxpayers irrespective of their intention of evasion of tax or not. Consequently, the Courts have to interfere to award relief to the taxpayers. Recently, a case was reported before Bombay High Court in the case of ARUN KRISHNACHANDRA GOSWAMI V/S UNION OF INDIA wherein the issue of non-payment of tax collected by the railways to the government was raised wherein the actual liability to pay tax to the government was on the recipient under reverse charge mechanism. The decision delivered in this case is the subject matter of our today’s update.
The petitioner is engaged in business of advertising and providing advertising solutions to different parties. The petitioner also provided services to Indian Railways wherein as per the letter of acceptance, it was agreed that the petitioner would pay the applicable taxes to the Railway Administration who in turn would pay the same to the government exchequer. The petitioner continued to pay GST at 18% on value of services to the railways.
On 21.12.2020, a notice was received by the petitioner regarding conducting audit and directing to attend the office along with books of accounts and records for FY 2017-18. During the audit it was stated that petitioner was paying GST at 18% to the Railways instead of paying the same to the Central and State Government.
The counsel of revenue argued that the taxpayer was wrongly making paymentto the Railways in accordance with the provisions of Section 9(3) of CGST Act, 2017 wherein it is prescribed that tax shall be payable by recipient of goods or services or both under reverse charge mechanism. Furthermore, the invoice raised by the petitioner also provides “is tax payable on reverse charge mechanism- Yes”. It was pointed out that the CGST and SGST amount was also mentioned on the invoice.
The Court stated that in the present case, the petitioner has not attempted to evade any tax. In the present case, it is crystal clear that mistakenly petitioner made payment to railways instead of making payment to Government directly. Further, the railway department was also not in an immediate administrative position to check and react to wrongful deposits. Therefore, it was directed to ensure that the amount is to be paid to CGST and SGST authorities within 2 weeks and a sympathetic view should be taken as regards levy of interest or penalty on the petitioner. It was further held that input tax credit of the same should be given to the petitioner after the tax is paid to the government by the railways. However, on pointing out the difficulty of making payment directly to the Government by railways, it was directed by the Court that the railways would remit the amount to the petitioner and thereafter, the petitioner shall make the payment within one week.
The above decision demonstrates the fact that liberal approach needs to be followed by the authorities in case there is no intention of evasion of tax by the taxpayers. It is very common that the taxes are paid by the recipient to the supplier whereas tax was to be paid by the recipient under reverse charge mechanism to the government exchequer directly. The revenue authorities should take a lenient view for recipient assessees in such cases so that huge penalties and interest amount is not incurred by them merely because of procedural lapses. It is high time that rulings like these should be followed taking a liberal approach so that repercussions are not faced by the taxpayers.
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