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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 ITC AVAILABILITY ON TRANSPORTATION SERVICES AVAILED FOR EMPLOYEES 139/2020-21

GST UPDATE ON ITC AVAILABILITY ON TRANSPORTATION SERVICES AVAILED FOR EMPLOYEES 139/2020-21

The restrictions as regards availment of input tax credit on hiring of motor vehicles has created confusion in the minds of employers regarding admissibility of input tax credit on transportation services availed for the commutation of their employees from third parties. This issue was recently raised before the Hon’ble Maharashtra AAR in the case of M/S TATA MOTORS LTD. which is the subject matter of discussion in our present update.

In this case, applicant had engaged third party service provider to provide transportation facility to its employees in non-air-conditioned buses having seating capacity of more than 13 persons. To ensure that transportation facility is used only by authorized persons/employees, applicant is issuing pass to employees and nominal amount is recovered on monthly basis. The applicant has sought an advance ruling to determine availability of ITC on GST charged by service provider on hiring of bus/motor vehicle for transportation of employees and applicability of GST on such nominal amount recovered from employees. It also sought that if ITC is available, whether it will be restricted to the extent of cost borne by the applicant.

The AAR observed that with effect from 1-2-2019, section 17(5) of CGST Act, 2017 has been amended to allow ITC on leasing, renting or hiring of motor vehicles, for transportation of persons having approved seating capacity of more than thirteen persons (including the driver). Since in the given case, the applicant is using non-air conditioned buses having seating capacity of more than 13 persons, it shall be eligible for ITC but only after 1-2-2019.              

On question of chargeability of GST on nominal amount charged from employees, AAR observed that once employee ceases to be in employment with applicant, he/she is not authorized to use the transportation facility. In other words, employer-employee relationship is must to avail this facility and the facility can be treated as perquisite given by the applicant to its employees. As per clause 1 of the Schedule III of the CGST Act, services by an employee to the employer in the course of or in relation to his employment shall he treated neither as a supply of goods nor a supply of services. Since the applicant is not supplying any services to its employees, in view of Schedule III, GST is not applicable on the nominal amounts recovered by applicants from its employees.                          

Further, on question of restriction of ITC to the extent of cost borne by the applicant employer, AAR referred the decision given by the Hon'ble High court of Bombay in the case of CCE, NAGPUR V. ULTRATECH CEMENTS LTD. and held that ITC is not admissible to applicant on the portion of cost borne by employee and thus, ITC will be restricted to the extent of cost borne by the applicant.

The ruling is no doubt favourable to the assessee but we wish to add our point regarding non-taxability of GST on nominal charges recovered by employer from the employees for transportation facility provided to them. Reference may be made to AAR ruling in the case of M/S. POSCO INDIA PUNE PROCESSING CENTER PRIVATE LIMITED[2019 (21) G.S.T.L. 351 (A.A.R. - GST) andM/s ION TRADING INDIA PRIVATE LIMITED wherein it was held that premium amount recovered for making payment to insurance company for providing mediclaim facilities by employer to its employees cannot be treated supply of service by employer under GST law because employer is not engaged in providing insurance services and the said activity is not in course or furtherance of its business so as to levy GST. It appears that this reasoning is convincing and was missed while ruling that the amount recovered from employees for transportation facility is not liable to GST. It is hoped that similar advance ruling is pronounced for other facilities provided by employers such as canteen facilities which is also in terms of employment contract.

 This is solely for educational purpose.
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