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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 322 on tax and penalty can’t be imposed on basis of conjecture

GST Update No 322 on tax and penalty can’t be imposed on basis of conjecture
It is well known principle that tax and penalty cannot be imposed on the taxpayers merely on the basis of assumptions. The revenue department should possess corroborative evidences in support of their contentions. However, time and again it is often observed that such practices are not followed by the departmental officers resulting into hampering of operations of the business houses. Furthermore, even the Courts also throws light on these practices and directs the tax officers to act properly and judiciously. Once again one more case was reported before Allahabad High Court in the case of State of U.P. V/s M/s Maa Vindhyavasini Tobacco Pvt. Ltd. The decision imparted in this case is subject matter of our present update. The petitioner is challenged the order dated 22.06.2019 passed by Appellate Authority in favour of respondent wherein demand of tax and penalty was set aside. In the present case, goods transported were intercepted on the basis of intelligence received by petitioner. It was stated that the goods were transported on the basis of tax invoices which were pre-used. The statements of driver was recorded and authorities passed an order after serving copy of notice to the respondent and it was directed to respondent to pay the tax and penalty demanded. The appellate authority set aside the impugned order stating that here was no material available with the authorities concerned for detention and seizure of the goods, for passing the orders under Section 129 of CGST Act, 2017. Further, the order was set aside by the authority stating that Section 129 of CGST Act, 2017 cannot be invoked on the basis of presumptions. The counsel of petitioner argued that intelligence was received regarding goods being transported twice over on the same set of invoices.

The court held that the submissions of petitioner are not acceptable since goods to be transported have to be accompanied by E-way bills which neither emerged in the assessment order nor is there any basis to arrive at the conclusion. Therefore, the authority rightly arrived at the conclusion of setting aside the impugned order. Further, as per provisions of Section 129 of CGST Act, 2017, an opportunity is awarded to assessee to come forward for release of goods on payment of amount as determined under Section 129 of CGST Act, 2017. This is alternate mode available to assessee. In the present case since as the respondent has not approached for availing the benefit that flow from Section 129 and the appellate authority also held that the basis of initiating proceedings are non-existent, the Court do not see any reason to interfere with the order passed by the appellate authorities in accordance with powers under Section 226 of Constitution of India. The above decision is a favourable decision for business wherein the Courts have supported the fact that harsh proceedings such as prescribed under Section 129 of CGST Act, 2017 cannot be invoked merely on the basis of arbitrary reasons. There has to be an evidence to establish that goods are liable to be confiscated. There had been various judicial rulings on same subject matter such as Kerala High Court in the case of Polycab India Ltd. V/s State of Kerala. It is high time that judicial binding precedents like these should be followed at the earliest so as to avoid any further unnecessary litigations.
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