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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 POWER OF ATTACHMENT TO BE EXERCISED JUDICIOUSLY 123/2020-21

GST UPDATE ON POWER OF ATTACHMENT TO BE EXERCISED JUDICIOUSLY 123/2020-21

The justification for granting wide powers to tax authorities regarding attachment of property of the taxpayer under the GST law has been contentious since inception. In our past updates also, we have discussed important judgments on legality of attachment of bank accounts by the GST authorities. The update no. 104/2020-12 and update no. 89H/2020-21 may be referred to by our netizens. In the present update, we seek to discuss yet another important judgment delivered by the Hon’ble Gujarat High Court in the case of M/S VALERIUS INDUSTRIES V/S UOI concerning provisional attachment of the stock of goods and bank account of the petitioner by State Tax Officer under section 83 of the GST Act, 2017.

The Hon’ble Gujarat High Court held that just because a search has been undertaken resulting in seizure of goods by itself may not be sufficient to arrive at the conclusion that it is necessary to pass an order of provisional attachment to protect the revenue. The power u/s 83 should neither be used as a tool to harass the assessee nor should it be used in a manner which may have an irreversible detrimental effect on the business of the assessee. The court also held that the following factors must be taken into consideration, firstly whether it is a revenue neutral situation; secondly, the statement of output liability or input credit, having regard to the amount paid by reversing the input tax credit, if the interest of the revenue is sufficiently secured- then the authority may not be justified to invoke its power u/s 83. It would be a big mistake on the part of the revenue authorities to understand that the reasons to believe necessary for the purpose of carrying out inspection, search and seizure under Section 67 of the Act, 2017 would be sufficient for the purpose of formation of the opinion that it is necessary to provisionally attach the goods or other articles for protecting the interest of the government revenue.

The government has armed tax officers with sweeping powers to conduct searches,surveys and to attach the assets in case of recovery. Search proceedings are seen as blunt instruments of law enforcement. The intention of the government is that they want to expand the tax base, but it must be ensured that the tax administration is handling powers in a judicious way. The hon’ble High Court also held that under CGST Act, 2017, the order of provisional attachment can be passed only by the Commissioner and so in the present case, the provisional attachment order passed by State Tax Office was without jurisdiction. It was held that the power of forming reasonable belief in order to provisionally attach the property of the taxpayer is subjective one and has been delegated to the Commissioner which cannot be further delegated by him to the subordinate officers.

In this context, reference may be made to the decision given by the Hon’ble Gujarat high courtin the case of M/s Kushal Ltd.wherein it has been held that to exercise the power of provisional attachment of the property of a taxable person, proceedings should be pending under the requisite provisionswhereas in the instantaneous case pursuant to search under section 67(2) of the CGST Act, no inquiry or other proceedings under GST law was initiated.Thus,when the basic requirement for exercise of powers under section 83 was not satisfied, the provisional attachment of the bank account of the petitioners is not in consonance with the provisions and thus cannot be sustained and the High Court quashed the order of provisional attachment of the bank account of the petitioners.However, in the present decision, the Hon’ble Gujarat High Court held that mere initiation of proceedings or pendency of proceedings under section 67 of the CGST Act, 2017 per se would not lead to provisional attachment of the property of the taxpayer. Hence, this decision is one step forward to the decision given in case of M/s Kushal Ltd.

The High Courts act as a watchdog for applying the relevant provisions of the laws,specially the provisions which have adverse effect on the assessee such as provisional attachment of the property of the taxpayer. Although there are sufficient judicial guidelines against arbitrary exercise of such powers,taxpayers expect that the tax administration exercises due diligence to ensure that these powers are not abused.

This is solely for educational purpose.

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