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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 interest liability on wrong availment of credit in gst regime part-15

GST Update on interest liability on wrong availment of credit in gst regime part-15
The present update discusses in detail about the interest liability on wrong availment of input tax credit under GST. Before proceeding to the provisions of interest under GST regime, it is pertinent to mention that in the erstwhile regime, interest was payable by the assessee only if the wrongly availed credit was utilised. In other words, the interest was not payable if the wrongly availed credit was not utilised by the assessee. Say for example, if the wrongly availed credit was Rs. 10,000/- and the assessee had balance of credit more than Rs. 10,000/- throughout the period, it was considered that the wrongly availed credit was not utilised and no interest was payable. However, the position under GST regime is different and interest is payable even if the wrongly availed input tax credit is not utilised as the provisions of section 73 and 74 pertain to recovery of input tax credit wrongly availed OR utilised along with interest. The use of word ‘OR’ denotes that interest is payable even if the input tax credit is not utilised as confirmed by the Apex Court in the case of UNION OF INDIA VERSUS IND-SWIFT LABORATORIES LTD. [ 2011 (265) E.L.T. 3. (S.C.)]. The provisions contained in section 50 of the CGST Act, 2017 pertaining to interest under GST are discussed as follows:-

Section 50 – Interest on delayed payment of tax
(1) Every person who is liable to pay tax in accordance with the provisions of this Act or the rules made thereunder, but fails to pay the tax or any part thereof to the Government within the period prescribed, shall for the period for which the tax or any part thereof remains unpaid, pay, on his own, interest at such rate, not exceeding eighteen per cent., as may be notified by the Government on the recommendations of the Council.
(2) The interest under sub-section (1) shall be calculated, in such manner as may be prescribed, from the day succeeding the day on which such tax was due to be paid.
(3) A taxable person who makes an undue or excess claim of input tax credit under sub-section (10) of section 42 or undue or excess reduction in output tax liability under sub-section (10) of section 43, shall pay interest on such undue or excess claim or on such undue or excess reduction, as the case may be, at such rate not exceeding twenty-four per cent, as may be notified by the Government on the recommendations of the Council.
Furthermore, the interest rates in GST regime have been prescribed vide Notification No. 13/2017 – Central Tax dated 28th June 2017, wherein the rate of interest under section 50(3) of the CGST Act, 2017 is specified as 24% p.a.

Now, the question arises is whether every kind of wrong availment of input tax credit is covered by the provision of section 50(3) or not. If the provision contained in section 50(3) is examined, it is found that only excess or undue claim of input tax credit under section 42(10) or undue or excess reduction under section 43(10) of the CGST Act is liable to interest of 24% p.a. It is submitted that section 43(10) pertains to interest liability on undue or excess credit availment on account of non-matching of input tax credit as was proposed while introducing the GST law. It is pertinent to note that when GST law was implemented, concept of matching was proposed wherein input tax credit was available only if it matched with the corresponding outward supply furnished by the supplier. The mechanism of matching via GSTR-1, GSTR-2 and GSTR-3 has not been implemented till date. Consequently, the provisions contained in section 42 are not relevant in the present context. This has the effect that as on date, there is no provision prescribing levy of interest for wrong availment of input tax credit for reasons other than matching. Say for example, in case where input tax credit of tax paid under reverse charge mechanism on specified services is wrongly availed or where the input tax credit has wrongly been carried forward in TRAN-1 under transitional provisions. In such situations, whether interest rate specified under section 50(3) could be considered to be applicable? Well, the answer is big NO.

It is submitted that although there is specific provision contained in section 50(1) for specifying rate of interest for delayed payment of GST, there is no explicit provision regarding levy of interest for wrong availment of input tax credit for reasons other than matching concept as proposed under section 40(2) of the CGST Act, 2017 and not implemented till date. Therefore, the assessees may challenge the demand of levy of interest on wrong availment of input tax credit in Courts as there is no explicit provision for the same. However, logically it may not sound good that wrong availment of input tax credit would not attract any interest under GST regime and there will definitely be a huge tug of war between assessee and the revenue authorities on this issue in the days to come. 
The content of this GST update is for educational purpose only and not intended for solicitation. 

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