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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 295 on recovery of ITC from recipient for default in payment of tax by supplier

GST Update No 295 on recovery of ITC from recipient for default in payment of tax by supplier
The issue as regards to denial of input tax credit to the recipient in case payment of tax is not made by the supplier has its tentacles from erstwhile indirect tax regime. It is well settled principle that legitimate input tax credit available to the recipient should not be denied for contravention of statutory provisions by the supplier as it would lead to punishing the innocent. On similar lines, recently one case was reported before hon’ble Madras High Court in the case of M/S D.Y. BEATHEL ENTERPRISES V/S THE STATE TAX OFFICER. The decision imparted in this case is subject matter of discussion of our present update.
The petitioner is trader in Raw Rubber Sheets and have purchased goods from Charles and his wife. The consideration along with tax component was paid to the seller through banking channels. Subsequently, inspection was carried out wherein it was observed that no tax was paid to the Government by Charles and his wife. Henceforth, a show cause notice was issued to the petitioner denying the input tax credit.
The petitioner submitted that all the amount was paid to the two sellers and therefore, they should be confronted during enquiry. However, without involving the sellers the order came to be passed levying the entire liability on the petitioners only. Reliance was further placed on the decision of Madras High Court in the case of SRI VINAYAGA AGENCIES VS. THE ASSISTANT COMMISSIONER, CT VADAPALANI. Moreover, the authority also does not have the jurisdiction to reverse the input tax credit already availed by the assessee on the ground that the selling dealer has not paid the tax. Reference was also drawn to the press release of GST Council dated 04.05.2018. Therefore, in case of default in payment of tax by the seller, recovery shall be made from the seller. Attention of the Court was also drawn towards the final assessment order dated 27.10.2020.The respondent filed a counter affidavit and contended that they do not warrant any interference. It was further argued that the respondent cannot be faulted for having reversed whatever ITC that was already availed by the petitioners herein.
The Court stated that it is crystal clear that the assessee must have received the goods and the tax charged in respect of its supply, must have been actually paid to the Government either in cash or through utilization of input tax credit. Therefore, in case appropriate amount of tax does not reaches to the kitty of Government, then liability needs to be borne by either the seller or purchaser. However, in the present situation, no recovery action is initiated against the seller. The Court stated that the revenue authorities have grossly erred in following the approach. Therefore, strict action needs to be initiated against the seller since tax was not remitted by him. Further, the respondent submitted that there is no movement of goods and hence, it becomes more necessary to set an enquiry against the seller. Thus, the impugned orders suffer from certain fundamental flaws since no examination or recovery is first made towards seller, rather action is directly initiated against the purchaser. Therefore, the petition was allowed and matter was remanded back for fresh proceedings.
The above decision is a landmark decision in favour of trade and industry. It is observed that time and again, the revenue authorities initiate action against the bonafide purchasers denying legitimate amount of input tax credit merely because the seller has failed to make payment of tax component in accordance with the provisions of Section 16(2)(c) of CGST Act, 2017. However, there had been various rulings wherein relief has been granted to the recipient. To illustrate, Apex court in the case of KAY KAY INDUSTRIES, Madras High Court in the case of SRI RANGANATHAR VALVES PRIVATE LIMITED VS AC [W.P.Nos.38488 to 38493 of 2015 dated 02.09.2020], INFINITI WHOLESALE LIMITED and Delhi High Court in the case of ARISE INDIA LIMITED held that no liability can be fastened on the purchaser in case the seller failed to deposit the tax amount. It is high time that these settled cases should be adhered to by the subordinate authorities failing whichthe aggrieved assessees will have to knock the doors of Courts repeatedly to seek relief.
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