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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 ALLAHABAD HIGH COURT FOR PENALTY UNDER SECTION 122

GST UPDATE ON ALLAHABAD HIGH COURT FOR PENALTY UNDER SECTION 122
The penal provisions are usually stringent in taxation laws and are often the subject matter of litigation. Recently, hon’ble High Court in the case of M/s Metenere Ltd. pronounced a very interesting interpretation of the provision contained in section 122 of the CGST Act, 2017 with respect to imposition of penalty in cases where proper records were not maintained as required in the Statue. The reasoning adopted while pronouncing the decision is the subject matter of discussion of our present update.
 
Anti-evasion team visited the premises of the petitioner for verification of the records. The petitioner claimed that it produced all the records, however, the records of GST were not available in the factory premises as the same were kept at head office of the petitioner. It was submitted that all the records were maintained at the principal place of business of the petitioner situated at Delhi which was duly mentioned in the registration certificate also. Moreover, it was stated that documents in the electronic form were stored in the computer however the same could not be given to the respondent authorities on their visit as internet was not functional on the said date. It was also stated that there was no allegation with regard to evasion of duty and no exercise was conducted by department to establish and ascertain the duty evaded. Consequently, the order of confiscation and imposition of penalty was not justifiable.
 
The hon’ble High Court after pursuing the provisions of law, has held that as even if it is accepted for the sake of argument that the documents were not maintained at the registered office or any other place of business, there is no finding to the effect that any supply was made with an intent to evade payment of tax. Hence, confiscation was declared as wholly arbitrary and illegal. As regards levy of penalty under section 122 of the CGST Act, 2017, the hon’ble High Court categorised the infractions into two categories-A and B. Category A comprised of those offences which involved evasion of tax whereas category B consisted of those offences which did not involve any revenue leakage. It was stated that the quantum of penalty under section 122 is Rs. 10,000/- or an amount equivalent to tax evaded or refund claimed fraudulently. Therefore, it was concluded that the default in maintaining books/records was covered under category B so the penalty can be imposed only for Rs. 10,000/-. An interesting point to be noted here is that the hon’ble High Court emphasized that since no exercise for quantification of the tax evaded has been done, in pursuance to the powers conferred under section 35(6) read with section 73 or 74 of the Act, the maximum penalty that could be imposed is Rs. 10,000/-. This has the implication that even if the offence being committed pertains to category A and no efforts have been made by the revenue authorities for quantification of tax evaded by invoking the provisions contained in section 73 or 74 of the CGST Act, 2017, penalty imposable under section 122 of the CGST Act, 2017 would be restricted upto Rs. 10,000/-. Hence, the revenue authorities need to be cautious as regards determination of tax evaded under section 73 or 74 prior to initiation of proceedings for levy of penalty under section 122 of the CGST Act, 2017. Moreover, it can be concluded that where the show cause notice does not give demand of tax under Section 73 or 74 but only proposes penal provision under section 122 then only Rs. 10,000/- penalty can be imposed because tax has not been quantified under Section 73 or 74 ibid.
 
This decision provides a great relief as regards quantum of penalty imposable under section 122 of the CGST Act, 2017 is concerned. The interpretation that since certain offences do not lead to any tax evasion, penalty should be restricted to Rs. 10,000/- is commendable. It is hoped that the benefit of this decision is extended to a large number of assessees so that minor infractions do not attract hefty penalties. 
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