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Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

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GST UPDATE ON DENIAL OF SUBSTANTIAL BENEFIT FOR TECHNICAL GLITCHES

GST UPDATE ON DENIAL OF SUBSTANTIAL BENEFIT FOR TECHNICAL GLITCHES

GST UPDATE ON DENIAL OF SUBSTANTIAL BENEFIT FOR TECHNICAL GLITCHES
 

It has been four months since GST has been implemented but still GST network is not free from technical glitches. Not a single return utility is error-free, whether it is online or offline. This update is about the technical errors in GST network and its impact on the admissibility of ITC. 
Input tax credit (ITC) is the most crucial area of any indirect tax regime. In fact, the arrival of GST was hyped by saying that there will be free flow of ITC which was lacking in the service tax and Central excise regime. On the other hand, the free flow of ITC seems to be a dream as there are number of cases where the availment of ITC is being hindered due to technical errors. Some of such cases are given as follows:-

1) If any invoice is not uploaded by the supplier and mistakenly the GSTR-1 is filed. Suppose the buyer also forgets to show the invoice in missing invoices and files his GSTR-2. Now, whether the supplier can upload this invoice in the GSTR-1 of next month? If not, whether the ITC on that invoice will lapse?

2) Further, assume, an invoice was uploaded but return was not filed by the supplier. Accordingly, it didn't auto-populated in the buyer's GSTR 2A and if the buyer also forgets to show it in missing invoices and he files his GSTR-2. Subsequently, as the date of filing GSTR-1 is extended, the supplier files his GSTR-1. Now, as the buyer has already filed the GSTR-2, where will that invoice be shown? Whether it will auto-populate in the GSTR 2A of buyer of next month or will it lapse? It is not yet clear.

3) Also, if there is a case where the supplier has made a "B to B sale" but mistakenly shows it in the head of "B to C". In such a case, tax is already paid by the supplier but since it was shown in "B to C"; it didn’t auto-populate in the GSTR-2A of the buyer. Now, following actions are possible in such a case:-
• The buyer shows it in missing invoices and it is accepted by the supplier. However, once it is accepted, the tax will be again payable by the supplier on the same. This will not be acceptable to supplier as he had already paid the tax on the said invoice; only mistake was that it was wrongly shown in the "B to C" column.
• The buyer does not opts to show it in missing invoice and issues a credit note to supplier. If the supplier accepts the same, he shall have to issue a fresh invoice and it will again create a liability on him which has already been paid.

Therefore, both the options are available in this case are not practicable. In such case also, there seems the possibility that the ITC will lapse. If not, how it will be made workable by GSTN, it is not understandable.

There are a number of similar problems that the assessees are facing everyday while filing the various returns on GSTN. There seems no solution to such problems as of now and assessees have a fear that the ITC involved in such cases will lapse. But whether the substantial right in the form of ITC can lapse on account of technical faults at the government site?

It has been held by the hon'ble Supreme Court in the case of FORMICA INDIA DIVISION Versus COLLECTOR OF CENTRAL EXCISE. [1995 (77) E.L.T. 511 (S.C.)] that substantial benefit cannot be denied on account of procedural lapses. In this cases, the assessee had not followed the proper procedure for claiming the exemption notification. Therefore, the departmental authorities have denied the benefit of notification by invoking the proceedings against them by alleging that they had not followed the proper procedure as prescribed in that notification. However, the hon'ble Supreme Court had held that though there was mistake on part of assessee by not following the proper procedure, but it is merely a technical lapse for which the substantial benefit cannot be denied.

In view of above judgment of hon'ble Supreme Court, one thing is clear that if the assessee is legally eligible for some benefit, it cannot be denied on account of some errors, even if the same has occurred at the end of assessee himself. Going by the above analogy, in the given cases also, we can say that if the assessee forgets to upload the invoice or if the invoice is uploaded but the return is not filed due to some error at the site of GSTN; it will be termed as a technical lapse only. Therefore, the analogy drawn by the Supreme Court in the case of Formica India will be equally applicable in the GST regime too and the substantial benefit of ITC cannot be denied because of these technical lapses.

Further, some civil writ petitions are being filed against the working of GSTN and errors occurring there. One such decision has been given by hon'ble Rajasthan High Court's Jaipur bench in the civil writ petition no. 15239/2017 on 5.10.2017. This writ was filed by Rajasthan Tax Consultants Association against the working of GSTN. In this case relief was granted to the petitioner if the non-responding of system is instantly reported to District information officer through e-mail. However, the benefit of this decision was granted to the petitioner only and it was not generally allowed. There are many more such petitions in pipeline which are going to consume the time, money and energy of both government and assessees. Therefore, in order to avoid these unnecessary litigations, it is better that the government issues some clarification at the earliest.

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