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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 ENHANCING THE POWERS OF PROPER OFFICERS

GST UPDATE ON ENHANCING THE POWERS OF PROPER OFFICERS
As we are all aware that during the pandemic times GST Council has provided full support by way of extension in due dates and as well as provided relaxation in the compliances that were required to be met by date. But now Council amended a few rules which has led to extension of powers of GST Officers. This amendment has been issued vide Notification No. 94/2020 - Central tax on 22nd of December 2020.  In this update, we shall be discussing the powers extended to the officers.

Rule 21 of CGST Rules deals with registration to be cancelled in certain cases. After clause (d) the following clauses have been inserted

“(e) avails input tax credit in violation of the provisions of section 16 of the Act or the rules made thereunder; or

(f) furnishes the details of outward supplies in FORM GSTR-1 under section 37 for one or more tax periods which is in excess of the outward supplies declared by him in his valid return under section 39 for the said tax periods; or

(g) violates the provision of rule 86B”

Coming to clause (e) it requires that the provisions Section 16 are to be complied while availing Input tax credit. One of the provisions that is Section 16(2)( c ) states that “the tax charged in respect of such supply has been actually paid to the Government either in cash or through utilization of input tax credit admissible in respect of such supply”. How will a taxpayer know that the GSTR-3B of that particular month has been filed by his supplier until and unless he sees the GSTR-2B which shall be generated in the next month GSTR-2B. Let us understand with the help of an example. Say an assessee is filing the return for the month of January, as per the above stated provision of Section 16, he has to ensure that the supplier have filed their returns and tax has been paid to the Government. The supplier will file GSTR-1 on 11th and it will come in GSTR-2A in portal of assessee. But GSTR-3B will be filed by 20th wherein the tax will be paid by supplier. Hence it will be reflected in GSTR-3B after 20th only i.e in the next month. But at the same time, asseesee has to file return GSTR-3B. He will have to take credit on the basis of figures reflected in GSTR-2A only. But on the date of filing, nobody will know whether GSTR-3B has been filed and tax is paid by supplier. Hence, it will be very difficult to comply with this condition and cancellation of registration without hearing the assessee is against the principle of natural justice and it will be challenged in court of law and will definitely increase the litigation.

Understanding the next clause of Rule 21, it requires that the details of outward liability in GSTR-1 are to match with GSTR-3B. If it doesn’t then the proper officer has the power to cancel the registration. For instance, if a taxpayer says A has mistakenly failed to show invoice number 25 dated 25/11/2020 in GSTR-1 but has discharged his tax liability correctly in GSTR-3B for the month of November, and then there shall not be a question of cancelling registration. Now option lies with him to show this invoice 25 in GSTR-1 of December 2020 but tax on the same is paid in November then he will not show the same in GSTR-3B of December 2020. But the department officer will invoke cancellation provision without any hearing as the provision of hearing under Rule 21A has been deleted. Hence, it will be cancelled without hearing whereas there is no contravention on part of taxpayer. He is following the route available to him as prescribed by Board. If this happen then he will stopped from running business. Will this be a reason for cancellation of registration by Proper Officer?

The third newly inserted clause has been explained in our other update “GST Update on Rule 86B” as this Rule 86B has itself been newly inserted by way of this notification. We have prepared a detailed update on the same and given to all our netizens.

The above discussed clauses which shall form the basis for cancellation of registration shall not be points to ponder unless and until the taxpayer had been given an opportunity of being heard before cancellation. GST Council by way of amendment in Rule 21A has omitted the words “after affording the said person a reasonable opportunity of being heard” in sub rule (2) of this Rule.

Not to stop here, GST council has inserted sub Rule (2A) in this Rule 21A which reads as below

“(2A) Where, a comparison of the returns furnished by a registered person under section 39 with

(a) the details of outward supplies furnished in FORM GSTR-1; or

(b) the details of inward supplies derived based on the details of outward supplies furnished by his suppliers in their FORM GSTR-1,

or such other analysis, as may be carried out on the recommendations of the Council, show that there are significant differences or anomalies indicating contravention of the provisions of the Act or the rules made thereunder, leading to cancellation of registration of the said person, his registration shall be suspended and the said person shall be intimated in FORM GST REG-31, electronically, on the common portal, or by sending a communication to his e-mail address provided at the time of registration or as amended from time to time, highlighting the said differences and anomalies and asking him to explain, within a period of thirty days, as to why his registration shall not be cancelled.

 The highlighted portion requires that the credit to be availed in GSTR-3B shall not be in excess of 5% of GSTR-2B (as per the amended Rule 36(4)). Analysing this with the help of an example, If the goods are in transit, and the supplier has uploaded in the month of June itself and it gets reflected in GSTR-2B in that month, but the receiver has not availed credit as he has not received the goods (as it leads to contravention of section 16 of CGST Act 2017). Now the receiver while filing the return for the month of July shall also consider the credit which was already reflected in earlier GSTR-2B. Will this availment of credit lead to contravention of law and shall be eligible for suspension of registration.

The above amendments have led to increasing the burden on the taxpayer of maintaining accounts and also replying to the notices being issued by the department. But the cancellation of registration without hearing is very hard step. If the registration is cancelled then the business of taxpayer will be stopped. Even if he applies for revocation then also it will take time to restore the registration after reply, personal hearing and decision by officer. Meanwhile, the poor businessman will not be able to continue the business. We think that these amendments should be reconsidered by Government or it will compel the poor taxpayers to knock the doors of Courts and increase the litigation.
 
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