Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

Comments

Print   |    |  Comment

GST UPDATE ON HOW FAIR IS THE PRACTISE OF NULLIFYING THE DECISION OF COURT BY WAY OF RETROSPECTIVE AMENDMENT? 52/2020-21

GST UPDATE ON HOW FAIR IS THE PRACTISE OF NULLIFYING THE DECISION OF COURT BY WAY OF RETROSPECTIVE AMENDMENT? 52/2020-21
GST UPDATE ON HOW FAIR IS THE PRACTISE OF NULLIFYING THE DECISION OF COURT BY WAY OF RETROSPECTIVE AMENDMENT?
 
The assessee may win the battle of dispute if there is lacunae in provisions of law but the ultimate winner is the law making authority who is vested with the power of rectifying the mistakes in law by using the tool of retrospective amendment. Inspite of promise made by the government that there will not be retrospective amendment, the practise is continued in GST era as well. In this present update, we make an attempt to discuss the reasonableness of retrospective amendment in law and will ponder on the question that whether retrospective amendment can be made even to implement a provision which was never intended by the law.
The two major retrospective amendments made in the GST law have become the major concerns of the assessee which are discussed briefly as follows:-
AAP & COMPANY VERSUS UNION OF INDIA:-The Hon’ble Gujarat High Court held that GSTR-3B is not a return under section 39 of the CGST Act, 2017 as GSTR-3 is the return to be filed under section 39 of the CGST Act, 2017 which is not operational till date. Therefore, the time limit for availing input tax credit under section 16(4) of the CGST Act, 2017 is the due date of filing of annual return. Thereafter, retrospective amendment was made in Rule 61(5) of the CGST Rules, 2017 vide notification no. 49/2019-Central Tax dated 09.10.2019 wherein it was stated that GSTR-3B is return under section 39(1) and where GSTR-3B is required to be furnished, then such person shall not be required to furnish return in GSTR-3.
 
BRAND EQUITY TREATIES LIMITED:- The hon’ble Delhi High Court granted relief to all assessees who could not file TRAN-1 within the stipulated period by giving them one time option till 30th June, 2020 to file the said TRAN-1 either online or manually by declaring the provision contained in Rule 117 prescribing the time limit for carry forward of transitional credit in GST regime as arbitrary and ultra vires. The Hon’ble High Court held that the right to carry forward transitional credit is vested right under Article 300A of the Constitution which cannot be taken away for non-filing of TRAN-1 within stipulated period. Consequent to this decision, notification no. 43/2020-Central Tax dated 16th May, 2020 was passed prescribing the date of implementation of retrospective amendment in section 140 of the CGST Act, 2017 as proposed in the Finance Act, 2020 as 18th May, 2020.
 
It is to be noted that the above cited retrospective amendments have taken away the benefit granted by the High Court to the assessee. Now, we seek to discuss the appropriateness of the retrospective amendment done by the government in both the cases. In this context, it is pertinent to refer to certain judicial pronouncements rendered with respect to power of the government to carry out retrospective amendments in law:-
  • KHYERBARI TEA COMPANY LIMITED AND ANOTHER V STATE OF ASSAM – [1964 AIR(SC) 925]
It was held that the power to make a law necessarily includes the power to make the provisions of the law retrospective. Therefore, if the legislature felt that the infirmity in the earlier Act could be cured, it cannot be said that such law passed is void, because the legislature has thereby attempted to recover taxes which could not be recovered under the earlier Act owing to the constitutional infirmity in the said Act.
  • STATE OF TAMIL NADU V MESSRS AROORAN SUGARS LIMITED – [1997 AIR(SC) 1815]
It is open to the legislature to remove the defect pointed out by the court or to amend the definition or any other provision of the Act in question retrospectively.In this process it cannot be said that there has been an encroachment by the legislature over the power of the judiciary.
 
In light of the above cited decisions, we may conclude that the legislature has the power to remove the defect noticed by the court and amend the provision of the Act retrospectively to cure such defect. Consequently, the retrospective amendment in section 140 of the CGST Act, 2017 could be considered as reasonable because the original section did not indicate that benefit of transitional credit was to be granted within specified time limit. However, at this juncture, we wish to point that the Hon’ble Delhi High Court granted the benefit to file TRAN-1 till 30th June, 2020 by considering other factors such as credit is verted right of the assessee and Rule 117 cannot specify an arbitrary time limit when the GST portal itself was not ready. We are not going into the fate of the decision of the Hon’ble Delhi High Court as the same has already been discussed in detail in our GST Update 45/2020-21. Instead, we are only conveying that since Rule 117 prescribed time limit, the action of amending section 140 of the CGST Act, 2017 retrospectively can be considered as removal of drafting defect by the government in view of above cited decisions of Supreme Court.
 
Our concern is regarding retrospective amendment made in Rule 61(5) of the CGST Rules, 2017 declaring GSTR-3B as return under section 39(1) of CGST Act, 2017 and dispensing the requirement of filing GSTR-3 when the assessee is liable to file GSTR-3B thereby substituting GSTR-3B in place of GSTR-3 as envisaged by the CGST Act, 2017. We submit that the GST Law was introduced with the matching concept indicating filing of GSTR-1, GSTR-2 and GSTR-3. The original scheme of the law was that GSTR-3 is the return under section 39(1) of CGST Act, 2017 and even the circular no. 7/7/2017-GST dated 1st September, 2017 clarified that errors committed while filing GSTR-3B may be rectified while filing GSTR-1 and GSTR-2 of the respective month which will be auto-populated in GSTR-3 to be filed by the assessee subsequently. Hence, we understand that from inception of GST regime, the law envisaged GSTR-3 as the return to be filed by assessee but due to non-preparedness of GST portal, the filing of GSTR-3 was deferred and kept in abeyance. However, when the Hon’ble Gujarat High Court ruled that GSTR-3B is not a return and so the last date of availing input tax credit according to section 16(4) of CGST Act, 2017 is due date of filing annual return, the government resorted to declare GSTR-3B as return under section 39 with retrospective effect. In our opinion, the legislature is permitted to rectify error in law by way of retrospective amendment but is it possible to change the entire scheme of the Act by way of retrospective amendment? We leave this question to be answered by our netizens that how far is it justifiable for the government to declare GSTR-3B as return under section 39(1) of the CGST Act, 2017 when such a return was introduced as a temporary measure and was never envisaged while implementing GST law. Well, the assessees are left with no option but to follow the retrospective amendment and forgoe their genuine input tax credit inspite of all technical problems faced by them.
 
This is solely for educational purpose.
You can reach us at www.capradeepjain.com, at our facebook page on https://www.facebook.com/GSTTODAYBYPRADEEPJAIN/as well as follow us on twitter at https://www.twitter.com/@capradeepjain21.
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com