Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
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.  

Comments

Print   |    |  Comment

GST UPDATE ON LACK OF PROVISIONS FOR RECOVERY OF TRANSITIONAL CREDIT 60/2020-21

GST UPDATE ON LACK OF PROVISIONS FOR RECOVERY OF TRANSITIONAL CREDIT 60/2020-21

 

The saga of carry forward of erstwhile credit into the GST regime is being still continued, even at the time when we will be celebrating 3rd Anniversary of GST in the coming month. The transition of credit pertaining to erstwhile laws has not been smooth enough and the inability to file prescribed TRAN-1 within the stipulated time period is being disputed with relief provided by the Hon’ble Delhi High Court in the case of Brand Equity Treaties Ltd. However, the dispute has not end in light of the retrospective amendment made in section 140 and the decision of Delhi High Court being challenged before the Supreme Court. Nonetheless, in the present update we will discuss the provisions that will be invoked by the revenue authorities in case where wrong credit has been availed as “transitional credit” under the GST regime.

 

Before discussing the provisions of section 73/74 of the CGST Act, 2017, it is pertinent to discuss certain provisions relating to transitional credit. The first and foremost question is whether the “transitional credit” availed by the assessees under GST regime is to be construed as “input tax credit” as the procedural mechanism available on the GST portal merges the erstwhile credit of Central Excise and Service Tax as “Central Tax” and the VAT credit as “State Tax” and the transitional credit becomes the part of the common pool of input tax credit in the electronic credit ledger on the GST portal. It is observed that in GST Law, it is possible that utilities available on GST portal and the provisions of Act are not in consonance with each other and so reference is required to be made to the definition of input tax credit as stated in section 2(63)  of the CGST Act, 2017 according to which “input tax credit” means the credit of input tax. Furthermore, the term “input tax” is defined in section 2(62) of the CGST Act, 2017 as follows:-

(62) “input tax” in relation to a registered person, means the central tax, State tax, integrated tax or Union territory tax charged on any supply of goods or services or both made to him and includes—

 

(a) the integrated goods and services tax charged on import of goods;

(b) the tax payable under the provisions of sub-sections (3) and (4) of section 9;

(c) the tax payable under the provisions of sub-sections (3) and (4) of section 5 of the Integrated Goods and Services Tax Act;

(d) the tax payable under the provisions of sub-sections (3) and (4) of section 9 of the respective State Goods and Services Tax Act; or

(e) the tax payable under the provisions of sub-sections (3) and (4) of section 7 of the Union Territory Goods and Services Tax Act,

 

but does not include the tax paid under the composition levy;

 

On perusal of the above definition, it is clear that transitional credit is not to be considered as “input tax credit” under GST Law. In this context, in order to further substantiate this point, reference may be made to clarification issued vide Circular No. 125/44/2019-GST dated 18.11.2019 wherein it has been clarified in paragraph no. 50 that the transitional credit pertains to duties and taxes paid under the existing laws and so the same cannot be said to have availed during the relevant period so as to consider it as part of “Net ITC” and so no refund of unutilised transitional credit is admissible under section 54(3) of the CGST Act, 2017.

 

Therefore, it is clear that transitional credit is not “input tax credit” as per GST Law. Now, the question arises is whether the provisions of section 73/74 of the CGST Act, 2017 can be invoked for demanding wrongly availed transitional credit? In this respect, it is worth noting that the provisions of section 73/74 pertain to determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised. It is submitted that when the transitional credit is not considered as “input tax credit” under GST Law, then whether the provisions of section 73/74 of the CGST Act, 2017 can be invoked for demanding and recovering wrongly availed transitional credit? If answer is No, then whether the show cause notice for demanding wrongly availed transitional credit will be issued under erstwhile laws? Well, when the credit of erstwhile regime merges into the common pool of CGST and SGST in the electronic credit ledger after filing TRAN-1 and assumes the character of CGST and SGST, issuance of show cause notice under erstwhile laws would also be challenging task for the revenue authorities as utilisation of such wrongly availed transitional credit is in GST regime. One may argue that revenue authorities may certainly raise demand for short payment of tax if the said wrongly availed transitional credit has been utilised.

In this context, reference is also made to Rule 121 of the CGST Rules, 2017, which states that the transitional credit may be verified and proceedings under section 73 or section 74 shall be initiated in respect of any credit wrongly availed, whether wholly or partly. It is pertinent to mention that neither the section 73/74 nor the transitional provisions contained from section 139 to 142, expressly indicate that the wrongly availed transitional credit will be demanded and recovered under section 73/74 of the CGST Act, 2017. Therefore, in the absence of statuary provisions in the Act for recovery provisions pertaining to transitional credit when the said credit is not covered by the term “input tax credit”, the viability of Rule 121 is certainly doubted. This is for the reason that the Rules are accessories to any law and provisions of Rule cannot go beyond the statutory provisions stated in any Law.  In our opinion, perhaps, this is drafting lacunae in section 73/74 of the CGST Act, 2017 which may be corrected by resorting to retrospective amendment.


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