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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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GST UPDATE NO. 73RD ON FOOD DELIVERY APPS LIABLE TO GST W.E.F. 01.01.2022

GST UPDATE NO. 73RD ON FOOD DELIVERY APPS LIABLE TO GST W.E.F. 01.01.2022
The GST Council in its 45th meeting decided on various issues, wherein one of the major decisions was to make numerous food delivery apps liable to 5% GST for providing restaurant services. It was proposed that E Commerce operators are being made liable to pay tax on the restaurant services provided through it with some exceptions w.e.f. 01.01.2021. The exceptions would be known when the notification is released. The present update seeks to discuss ambiguities which may crop up due to the decision of the GST Council. It is proposed that the liability for payment of taxes in case of restaurant services will be shifted to the ecommerce operators providing platform for home delivery services to the customers such as swiggy, zomato, uber-eats etc. This is primarily for the reason that the government apprehends that many restaurants are collecting taxes but are not paying the same to the government and in order to control them, the liability to pay GST should be shifted to the e-commerce operators. It is worth mentioning that there is mechanism of TCS prevailing in case of supplies made through ecommerce operators. However, it is not clarified whether the said mechanism would be applicable in case of food delivery platforms or not. One of the issues that is likely to be disputed will be the cases where the food delivery is being made from restaurant of a five-star hotel wherein value of supply of a unit of accommodation is above seven thousand five hundred rupees per unit per day or equivalent. This is for the reason that the rate of GST applicable on such restaurants is 18% while rate of GST in case of normal restaurants is only 5%. It would be very difficult for the food delivery apps to keep track record of the GST rates applicable for supplies made from various restaurants. The certainty in this regard will arrive only on issuance of notification by the government in this respect. Moreover, the GST rate of 18% on restaurants located in five-star hotels is with the facility of input tax credit which will also be another point of litigation. Whether the five-star hotel will be required to reverse the input tax credit availed on the supply of food through food delivery apps in case the entire GST liability is to be discharged by the food delivery apps? Moreover, another issue that will crop is that whether the food delivery apps would be allowed to maintain separate accounts for food supplied at the rate of 18% so as to avail input tax credit on the same? The repercussions as regards credit availment would be far reaching and needs to be considered by the government before releasing the notification. It is also worth noting that such an amendment will bring all the small restaurants having aggregate turnover below Rs. 20 Lakhs because as per provision contained in section 24(ix) of the CGST Act, 2017, compulsory registration is required to be taken in case of person who supplies goods or services or both, other than supplies specified under sub-section (5) of section 9, through such electronic commerce operator who is required to collect tax at source under section 52. Although, there is no clarity as regards applicability of the TCS provision to such food delivery apps but if the said provision is applicable, all restaurants irrespective of their aggregate turnover would be required to get registered and the cost of food delivered would become expensive. This would definitely be the root cause for hike in the food prices in the near future as it is observed that the food delivery apps are popular even for small restaurants operating in cities.
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