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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 88TH ON SC DECISION IN CASE OF BHARTI AIRTEL LTD

GST UPDATE NO 88TH ON SC DECISION IN CASE OF BHARTI AIRTEL LTD
The decision pronounced by the Hon’ble Delhi High Court in the case of Bharti Airtel Ltd. was the talk of the town as it allowed the taxpayer to revise the GSTR-3B for the period July, 2017 to September, 2017 in the respective months by holding that the matching concept by way of GSTR-1, 2, 2A and 3 was not operational which lead to omission of certain ITC by the taxpayer. The above decision was challenged before the Supreme Court by the revenue authorities. The hon’ble Apex Court recently reversed the decision pronounced by the Delhi High Court. The reasoning adopted by the Supreme Court is the subject matter of discussion of the present update.
It was pleaded by the respondent that they were supplier of services as well as recipient of services so they were supposed to file the details of outward and inward supplies for every tax period and also of monthly return under the GST Act. In order to calculate the outward tax liability and the claim of ITC during the period from July till September, 2017, there was no formal or official mechanism to check the authenticity of data so as to claim ITC for the relevant period against the transactions effected by it with its suppliers. However, an inbuilt mechanism was guaranteed by the common electronic portal to be put in place by the Competent Authority under the 2017 Act. It was contended that only after the Form GSTR-2A became operational in September, 2018, the respondent realised that there was sufficient amount in the ITC ledger account during the relevant period and it is only due to non-functionality of GSTR-2A that the respondent had to discharge its outward tax liability by depositing in cash. It was contended by the respondent that Form GSTR-3B is a summary return and does not contain the invoice wise details. The recipient who had no access to the vendor’s returns had no facility to verify the correctness of the ITC taken. Form GSTR-3B is a consolidated return wherein the assessee manually files its total credit, outward tax liability etc. The petitioner cannot take advantage of its own failure of not being able to operationalise Forms GSTR-2 and GSTR-3 right at the inception when the provisions of the Act came into force.
The petitioner, being the government department contended that a registered person is obliged to do self-assessment of its transactions and determine the outward tax liability by maintaining the records regarding transactions between suppliers and recipients based on their agreements, invoices and books of accounts, either manually or electronically. The authorities have not role to play whatsoever in this regard. The efficacy of the common electronic portal or malfunctioning thereof, does not extricate the registered person from the primary obligation of self-assessment of outward tax liability as predicated in section 16 of the 2017 Act. Hence, the registered person is expected to exercise the option of utilising ITC or to pay by cash for discharging his outward tax liability at the time of filing of return on the information gathered from the primary record in his possession. The re-conciliation mechanism provided under section 37 and 38 between the outward supplier, registered person and the subsequent recipient, does not impact the rights and obligations of the registered person regarding self-assessment of outward tax liability and the duty to pay the self-assessed outward tax liability in the manner he wants to discharge by using self-assessed ITC or cash payment.
The hon’ble High Court held that the taxpayer was not required to be fully dependent on the auto generated information in the electronic common platform for discharging its obligation to pay outward tax liability for the relevant period rather the taxpayer was under a legal obligation to maintain books of accounts and records as per the provisions of the Act. It was held that the taxpayer was obliged to do self-assessment of ITC as was being done in pre-GST era. The common portal is only a facilitator to feed or retrieve such information and need not be the primary source for doing self-assessment. It was held that the circular clarifying amendment to be made in subsequent return could be struck down only if the same was in conflict with the express provision in the Act. The express provision in the form of section 39(9) clearly posits that omission or incorrect particulars furnished in the GSTR-3B return can be corrected in the return to be furnished in the month or quarter during which such omission or incorrect particulars are noticed. This very position has been restated in the impugned circular. It is therefore, not contrary to the statutory dispensation specified in section 39(9) of the Act. The High Court, however, erroneously noted that there is no provision in the Act, which restricts such rectification of the return in the period in which the error is noticed. It was also held that payment of outward tax liability by cash is solely at the discretion of the taxpayer inspite of having huge credit balance and there is no provision for swapping of the entries of cash and credit. Payment for discharge of tax liability by cash or by way of availing ITC, is a matter of option, which having been exercised by the taxpayer, cannot be reversed unless the Act and the Rules permit such reversal or swapping of the entries.
Hence, it was held that the rectification can be done only in the return to be furnished in the month or quarter during which such omission or incorrect particulars are noticed and not in the return for the period to which it relates. It was held that Form GSTR-2A is only a facilitator for taking an informed decision while doing such self-assessment. The hon’ble Apex Court held that if the decision of High Court is accepted, it would lead to complete uncertainty and no finality could ever be attached to the self-assessment return filed electronically thereby leading to a situation of collapse of tax administration.
The above decision is pro-revenue and will negatively impact the taxpayers as during the initial stages of implementation in GST, there were lot of inadvertent errors committed by them. The non-operational of the proposed matching concept also contributed for commission of errors but unpreparedness of GST portal will not be considered as ground to permit revision of return by the taxpayer in the same month. As such, the above decision will definitely have adverse repercussions on the taxpayers.
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