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 LANDMARK JUDGMENT ALLOWING CARRY FORWARD OF ITC NOT REFLECTED IN REVISED ST-3 BY FILING TRAN-1 - 013/2020-21

GST UPDATE ON LANDMARK JUDGMENT ALLOWING CARRY FORWARD OF ITC NOT REFLECTED IN REVISED ST-3 BY FILING TRAN-1 - 013/2020-21
GST UPDATE ON LANDMARK JUDGMENT ALLOWING CARRY FORWARD OF ITC NOT REFLECTED IN REVISED ST-3 BY FILING TRAN-1
 
We have come across number of decisions allowing the benefit of carrying forward the credit in GST regime on account of various technical glitches occurred in filing of TRAN-1 by various High Courts. However, recently, the Hon’ble Gujarat High Court in the case of M/S DEENDAYAL PORT TRUST VERSUS UNION OF INDIA rendered a landmark judgment wherein the carry forward of cenvat credit was allowed to the assessee under section 140(1) of the CGST Act, 2017 even if certain cenvat credit was missed to be reflected in the revised ST-3 return filed on the aces portal. This decision is important as the Hon’ble High Court has provided substantial relief by allowing carry forward of the cenvat credit by concluding that reflection of such cenvat credit in the ST-3 return is only a procedural lapse. The decision is discussed in detail as follows:-

In the given case, the petitioner stated that after filing ST 3 return for the period April 2017 to June 2017, it was realized that there were certain invoices pertaining to the said period which remained unaccounted and consequently, ITC involved in such invoices could not be claimed in the return of service tax in Form ST­3. The petitioner filed revised Form ST­3 on 17.09.2017, wherein ITC of Rs.6,94,19,228/­ was claimed on ACES portal.

Thereafter, it was further realized that some more invoices remained unaccounted and ITC involved therein amounting to Rs.99,46,810/­ was left out even in the revised return in Form ST­3. The petitioner, therefore, again tried to file second revise return so as to claim correct amount of ITC. The online ACES did not permit the petitioner to file revised return for the second time. The petitioner, therefore, could not claim the ITC to the tune of Rs.99,46,810/­. However, petitioner did informed Assistant Commissioner vide letter about such additional claim of ITC.
The petitioner claimed correct amount of ITC being Rs.7,93,66,038/­ (i.e. Rs. 6,94,19,228/­ + as per revised return Form No. ST­3 + Rs.99,46,810/­ being the ITC which was not permitted to be claimed by filing second revised return on the ACES portal in GST Tran 1).

The revenue authorities claimed that provision of Rule 7B of the Rules­ 1994 provides option to the assessee to correct a mistake or omission within a period of 90 days from the date of submission of the return under rule 7. Therefore, the assessee cannot keep on filing the revised return again and again because once option of revising return is exercised, the ACES portal would not allow the petitioner to revise the revised return again.

On one hand, when the ACES Portal did not permit the petitioner to file revised return for the second time due to which the claim of ITC to the tune of Rs.99,46,810/­ was not reflected in the last return in Form ST­3 filed by the petitioner and on the other hand, when the petitioner entered the correct amount of ITC including the amount of Rs.99,46,810/­ in Form Tran­1 while claiming the ITC under CGST­2017, there is no mechanism whereby such claim can be verified by the system and as such there is difference in amount of ITC in the form of ST­3, in the system and the Form Tran­1 which is filed by the petitioner.

The Court said that differential amount of ITC of Rs.99,46,810/­ cannot be denied to the petitioner on the ground of technical glitches not permitting the petitioner to file second revised return within the prescribed time period, as there is no prohibition as per Rule 7B of Rules­ 1994 to file revised return more than one time to revise return filed under Rule 7 of the Rules 1994 within stipulated period under Rule 7B of the Rules­1994.

ACES portal not allowing the petitioner to revise the Form ST­3 for the second time within prescribed period resulting into technical glitches is contrary with the provisions of Rule 7B of Rules 1994.

For the foregoing reasons, the Hon’ble High Court directed the revenue authorities to consider the claim of the petitioner for the amount of ITC of Rs.99,46,810/­ manually under Rule 7B of the Rules­ 1994, so as to enable the petitioner to take advantage of the order dated 07.02.2020 to revise the Form Tran­1 to be filed online on or before 31.03.2020.

The above decision sets a milestone as regards the favourable decisions pertaining to technical glitches is concerned as it granted benefit to the petitioner on account of technical glitch on the erstwhile aces portal not allowing the assessees to revise ST-3 return second time while there was no such restriction in Rule 7B of the Service Tax Rules, 1994. It is worth noting that this decision can be correlated to the present restriction imposed by the GST portal on filing GSTR-3B wherein the return cannot be filed without payment of taxes. However, there is no such restriction in CGST Act, 2017 that for filing returns under GST, payment of taxes is pre-requisite. Therefore, one can perceive that the above decisions will be a useful precedent for availing various benefits which are being denied to the assessees due to technical glitches on the portal. Another important analogy of this decision is substantive right cannot be lapsed due to technical breaches. This is very important that procedural requirements cannot take away the substantive right

This is a landmark judgement for the assessee directing the department that no taxpayer should be deprived of his constitutional right of claiming unavailed credit due to technical glitches of any portal.

This is solely for educational purpose.

You can reach us at www.capradeepjain.com and also at our facebook page at
https://www.facebook.com/GSTTODAYBYPRADEEPJAIN/ and follow us on twitter 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