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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 BINDING NATURE OF ADVANCE RULING PART-1

GST UPDATE ON BINDING NATURE OF ADVANCE RULING PART-1
GST UPDATE ON BINDING NATURE OF ADVANCE RULING PART-1:-
 
The concept of advance ruling was introduced in the GST regime to bring more clarity in the interpretation of law as the assessee was permitted to seek advance ruling not only with respect to proposed transactions but also with respect to already undertaken activities of the assessee. However, since the GST law is at its nascent stage, a number of clarifications are being issued and amendments are also being made from time to time on receiving representations on various issues. But, sometimes clarifications issued add to more complications as is being observed particularly when the decision pronounced by the advance ruling and the circular are contradictory. The present update seeks to discuss the complications created due to conflicting views of advance ruling and the CBIC.
 
At the outset, reference is made to the certain issues wherein the opinion of the advance ruling is totally contradictory to the amendment/clarification issued by the government:-
  1. Applicable rate of GST on solar power generating systems-Numerous decisions have been given as regards the applicable rate of GST on the supply of solar power generating systems. There have been decisions wherein AAR have ruled that the installation of solar power generating system is works contract liable to GST at the rate of 18% even when there is concessional GST rate of 5%. This issue has been represented to the government and recently there has been amendment in the notification no. 1/2017-Central Tax (Rate) dated 31.12.2018 wherein Explanation has been added regarding computation of deemed value of goods in the composite supply of installation of solar power generating system to be seventy percent of the gross consideration charged. This notification is applicable with effect from 31.12.2018.
  2. Applicability of GST exemption to certain courses provided by IIMsafter enactment of IIM Act- The AAR Bangalore and Madhya Pradesh has held that the IIM is not entitled for general exemption contained in serial no. 66(a) of the Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 after enactment of IIM Act. However, recently a clarification has been issued by the government which is contrary to the decision of the advance ruling. Circular No. 82/01/2019-GST dated 01.01.2019 has clarified the applicability of GST on various programmes conducted by IIM and has held that after enactment of IIM Act, the general exemption contained in serial no. 66(a) of the Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 is admissible to IIMs for courses which are recognised by law. It is worth noting that the AAR Bangalore and AAR Madhya Pradesh has ruled against IIM whereas the clarification is issued in favour of IIM.
 
  1. Confusion as regards classification of activity of bus body building as supply of goods or supply of services:-There have been certain advance ruling concluding that activity of bus body building is supply of goods whereas there have been certain other advance ruling concluding that the activity is supply of service. However, a clarification has been issued vide Circular No. 52/26/2018-GST dated 09.08.2018 as regards the guidelines to be followed for classifying the said activity.
 
It is pertinent to mention that the provision contained in sub-section (2) of the section 103 states that the advance ruling shall be binding unless the law, facts or circumstances supporting the original advance ruling have changed. With respect to the examples listed above, there has been amendment in the provision with respect to computation of GST liability in case of installation of solar power generating system w.e.f. 31.12.2018 and so the said amendment will prevail over all assessees including those who sought advance ruling. As such, it can be concluded that the advance ruling stating GST liability at the rate of 18% on installation of solar power generating system would prevail only upto 30.12.2018 and w.e.f. 31.12.2018, all assessees are bound to follow the amendment carried in the notification no. 1/2017-Central Tax (Rate) dated 31.12.2018. However, what will be the position in case of issuance of circulars post decisions pronounced by the advance rulings? The situation is very well covered by the example no. 2 and 3 discussed above. Whether the advance ruling will be binding or the clarification issued by the government? The binding nature of the circulars vis a vis the decision pronounced by the authority for advance ruling will be discussed in our next update.
 
The content of this GST update is for educational purpose only and not intended for solicitation.
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