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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 on 262 transportation of staff by non-ac busses of company

GST Update on 262 transportation of staff by non-ac busses of company
The issue as regards to transportation of staff by non-ac busses by employer company has been a subject matter of discussion since inception of the GST regime. The never-ending debate and litigations on availability of exemption in such cases increase the difficulty levels of the taxpayer manifolds. There had been Advance Ruling on similar lines rendered by Maharashtra AAR in the case of M/S SHAILESH RAMSUNDER PANDE wherein the assessee was having confusion as regards to taxability in case non-AC buses are used for transportation of staff under contract carriage. In the said case, the applicant entered into an agreement with Ratan Indian Power Limited (RIPL) for the aforementioned transaction wherein the buses will be operated strictly as per the instructions of RIPL. It was concluded that since the consideration of service is charged from RIPL and not the passengers, the subject activity falls under “renting of motor vehicles” and therefore, is taxable. Therefore, it was stated that the essential ingredient of contract carriage is that it piles under a contract for fixed set of passengers and does not allow passenger to board at their will. Hence, AAR ruled that the services provided by the applicant falls under renting of motor vehicles under Serial No. 10 of the notification no. 11/2017-CT (Rate) dated 28.06.2017 attracting GST at the rate of 5% without ITC under Reverse Charge Mechanism or 12 % GST with ITC facility under Forward Charge Mechanism. The above advance ruling is in alignment with the recent CBIC Circular No. 177/09/2022-TRU dated 03.08.2022 clarifying the said issue. The analysis of the clarification issued is subject matter of discussion of our present update.
 
As per serial no. 15(b) of notification no. 12/2017-Central Tax (Rate) dated 28.06.2017 exempts “transport of passengers, with or without accompanied belongings, by non-air conditioned contract carriage, other than radio taxi, for transport of passengers, excluding tourism, conducted tour, charter or hire.”
It is clarified that “charter” or “hire” are excluded from the above exemption entry where the renter defined how and when the vehicle will be operated, determining schedules, routes and other operational consideration meaning thereby that the exemption entry would apply in case transportation takes place over pre-determined route and as per pre-determined schedule. Hence, no exemption will be available in case contract carriage is hired for a period of time and the recipient at its discretion is free to decide the manner in which route is decided and schedule is determined. To illustrate, in case a private company arranges transportation facility for its staff wherein the non air conditioned buses are being used as per the directions of the private company, GST will be payable and the exemption will not be available.
 
It is worth noting that the exemption is only with respect to non-air conditioned contract carriage. If the service provider is engaged in transportation of passengers in air conditioned contract carriage, GST will be payable on the same. Further, another issue can be what will be the consequences in case nominal amount is recovered from the employees for usage of transportation facility in a non-ac conditioned bus. In this respect, the situation is clear wherein no GST shall be attracted in such a scenario due to employer-employee relationship which is excluded from the ambit of Schedule III of CGST Act, 2017 and considering the fact that the transaction is mere perquisite offered by employer and is not service provided in course or furtherance of business.
 
Aligning with the above, another clarification is also issued by the CBIC in line with recommendation of 47th GST Council meeting wherein it is clarified that n case of renting of motor vehicle for transportation of passenger which is hired by body corporate for a particular period of time with the directions of operation of the vehicle to be given by body corporate, the said services shall fall under “renting of motor vehicle” and will be covered under RCM wherein the tax shall be paid by the body corporate. On the contrary, if in case the body corporate avails passenger transportation services over pre-determined routes on pre-determined schedules, it will be classifiable under “passenger transport services” liable to GST under forward charge and the body corporate shall not be liable to pay tax under RCM.
 
The above clarificatory circular will be helpful for the taxpayers in order to avoid existing litigations and confusions in the minds of taxpayers. Circulars like these are anticipated in future as well which will prove to be useful for the taxpayers.
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