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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 Refund amendments made in recent notifications issued-Part 2 - 002/2020-21

GST Update on Refund amendments made in recent notifications issued-Part 2 - 002/2020-21

Update on Refund Amendments made in recent notifications issued-Part 2

We are analysing the provisions of Notification no. 16/2020-CT dt. 23.03.2020. One update is already forwarded to you. This is the second part on the same notification.  Certain important amendments have been made in connection with refunds, in the CGST Rules, 2017, which are explained in this article.
A new sub rule (4A) has been introduced in Rule 86 which reads as below.

(4A) Where a registered person has claimed refund of any amount paid as tax wrongly paid or paid in excess for which debit has been made from the electronic credit ledger, the said amount, if found admissible, shall be re-credited to the electronic credit ledger by the proper officer by an order made in FORM GST PMT-03.
As per the above provision, if any refund of wrongly paid tax or excess paid tax is claimed; the same shall be given as credit in Electronic Credit Leger, if such wrong / excess tax was paid through Electronic Credit Leger.

Moreover, a new sub-rule (1A) introduced in Rule 92 which reads as below.
(1A) Where, upon examination of the application of refund of any amount paid as tax other than the refund of tax paid on zero-rated supplies or deemed export, the proper officer is satisfied that a refund under sub-section (5) of section 54 of the Act is due and payable to the applicant, he shall make an order in FORM RFD-06 sanctioning the amount of refund to be paid, in cash, proportionate to the amount debited in cash against the total amount paid for discharging tax liability for the relevant period, mentioning therein the amount adjusted against any outstanding demand under the Act or under any existing law and the balance amount refundable and for the remaining amount which has been debited from the electronic credit ledger for making payment of such tax, the proper officer shall issue FORM GST PMT-03 re-crediting the said amount as Input Tax Credit in electronic credit ledger.

It seems quite difficult to calculate how much tax was paid through cash or credit as GSTR 3B is a monthly return meant for payment of tax in a consolidated manner.
Let us illustrate the complexities with the help of an example. In the month of March, 2020, the total tax liability amounts to Rs. 50,000/- each in CGST and SGST and an amount of Rs. 1, 50, 000/- under IGST which was shown in table 3(1)(a) of the GSTR 3B. Mistakenly, excess amount of outward tax liability shown in IGST amounted to Rs. 50, 000/-. Now the ITC available in the electronic ledger of the taxpayer on the date of filing of return is
Situation 1-(a) IGST Rs.1, 50,000, CGST Rs.20, 000 and SGST Rs.30, 000.

Now the department will sanction refund in cash and credit in the same proportion in which the excess tax has been paid by taxpayer in cash and credit. In the above example, the excess tax amounting to 50,000 of IGST has been fully disposed off using ITC of IGST only. The department will re credit Rs. 50,000 in electronic credit ledger in IGST head.
Situation 2-(b) IGST- 1, 20,000, CGST Rs.1, 20, 000 and SGST Rs.30, 000.

The department will calculate the percentage of excess IGST payment made in cash and credit through debiting CGST and IGST ledger. IGST credit will be fully utilised against output IGST liability and remaining 30,000 will be paid through CGST credit. Since in this case, Rs.20000 has been used from IGST credit ledger and remaining Rs 30000 from CGST credit ledger, the refund shall be fully credited in the credit ledger in the corresponding ledgers from which it has been debited.
Situation 3-(c) IGST- 1, 00,000, CGST Rs.50, 000 and SGST Rs.50, 000.

This one is an interesting case. Now the genuine taxpayer has fully utilised the credit against the corresponding output tax ledgers. The excess of 50,000 in IGST has been paid in cash by taxpayer and this is evidenced by the fact that the entire ITC of respective heads are fully utilised for payment of tax liabilities under respective heads. However, the revenue department will follow the circular and grant refund in the proportion in which cash and credit ledger has been debited for discharging the total tax liability for the relevant period. In the present case, the proportion will be computed as follows:- (50,000/1,50,000+50,000+50,000) which arrives at 20%. Hence, revenue authorities will grant refund of Rs. 10,000/- in cash and remaining Rs. 40,000/- by way of credit. However, the taxpayer will demand that the excess tax was fully paid in cash and refund of entire Rs. 50,000/- should be granted in cash.

The issues that arise in the above scenario are discussed in detail as follows:-

  1. The taxpayer will be relatively at disadvantageous position, particularly when he is unable to utilise input tax credit as the refund to be sanctioned in cash would be granted according to proportion as stated above.
  2. The language of the circular states that the refund to be paid in cash and credit ledger shall be calculated in the same proportion in which the cash and credit ledger has been debited for discharging the total tax liability for the relevant period. It is pertinent to mention here that tax liability is calculated head wise such as IGST, CGST and SGST. The meaning of total tax liability is to be considered as head wise or in totality including all liabilities of CGST, SGST and IGST. In our opinion, total tax liability should be referred to as the total tax liabilities including CGST, SGST and IGST because the input tax credit of CGST and SGST is also being utilised for discharging output liability of IGST. Therefore, the correct proportion will be arrived if total liability under various heads is considered in consolidated manner.
  3. Another question that arises is the re-credit will be granted in the head in which excess tax payment was made or will be granted in the respective head which was utilised for payment of excess tax? For example, if the excess IGST of Rs. 50,000/- was paid by utilising input tax credit balance of CGST and SGST, then the re-credit would be granted in CGST and SGST or would be granted in IGST as it was IGST that was paid in excess? A suitable clarification on this aspect is also awaited from the government.
  4. Alternative suggested by author:-In our opinion, instead of granting refund claim in proportion of cash utilised for payment of total tax liability, refund should be granted by comparing the cash liability paid by including wrong tax liability and the cash liability that would have been paid if the tax liability was correctly discharged by the assessee. If the situation no. 3 is re-considered, it is found that if the mistake of reflecting excess liability under IGST head of Rs. 50,000/- was not made, then in that case, there was no liability of the taxpayer to pay IGST in cash. It was only due to wrong reflection of IGST liability that the liability of Rs. 50,000/- was paid in cash. Hence, the government should grant refund of entire Rs. 50,000/- in cash to the taxpayer. In our opinion, the computation should be made on actual figures rather than following the proportion method as suggested in the circular.

It may be noted that the above restriction would not apply to refund of ITC on account of zero rated supplies and deemed exports.
The government should always clarify all possible petty irregularities while introducing new rules and provisions as ultimately it is the taxpayer who suffers as they are always at gun point of department. However, it is perceived that the above amendment will help the revenue department to curb the practice of encashing input tax credit by various assessees due to wrong payment of taxes.
 

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