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 Reversal of ITC in case of supplier not filed GSTR-3B and Reversal of ITC Merely by Adopting Uniform or Ad-hoc Percentage is unsustainable 145/2020-21

GST Update on Reversal of ITC in case of supplier not filed GSTR-3B and Reversal of ITC Merely by Adopting Uniform or Ad-hoc Percentage is unsustainable 145/2020-21
GST Update on Reversal of ITC in case of supplier not filed GSTR-3B and Reversal of ITC Merely by Adopting Uniform or Ad-hoc Percentage is unsustainable
 
This update is being prepared in an interesting decision by Madras High court in a sales tax matter in case of Sri Ranganathar Valves Private Limited Vs Assistant Commissioner. The impugned decision has dealt two issues of reversal of credit on wastages as well as reversal of ITC on non payment by supplier of goods. High Court held that input tax credit cannot be disallowed merely on the ground that supplier has not paid tax to Government. Court has also set aside the demand confirmed by Assistant commissioner for reversal of ITC on normal loss issued to him. The Court has remanded the matter to adjudication officer to decide the matter afresh on the basis of decisions quoted in the judgement.

In this case, the petitioner contended that Input Tax Credit cannot be disallowed on the ground that the seller has not paid tax to the Government. The petitioner submitted that he is able to prove that the seller has collected tax and issued invoices to him.

The second point with regard to reversal of input tax credit claim on wastage under Section 19(9) of the State Act. There were two type of losses namely invisible loss and visible loss, the petitioner adopted a policy of normal loss upto 1% percentage and abnormal loss of  5%  respectively.

Generally invisible loss is called as “normal Loss” and visible loss is called as “abnormal loss” and Input Tax credit is allowed for normal losses and it is to be reversed only in case of abnormal loss. The petitioner adopted the adhoc formula of 5% of raw material as normal loss and 1% for abnormal Loss. Here, Assistant Commissioner issued a SCN for reopening of cases and requires the assessee to reverse Input Tax Credit on the basis of 4% of raw material for visible (normal) Losses and 5% of raw material for invisible (abnormal) Losses.

After hearing the both the parties, the High Court observed that, in the case of Assistant Commissioner (CT), presently Thiruverkadu, Assessment Circle, Kolathur, Chennai Vs. Infiniti Wholesale Ltd., reported in [2017] 99 VST 341 (Mad), wherein it has held that Input Tax Credit cannot be disallowed on the ground that the seller has not paid tax to the Government, when the purchaser is able to prove that the seller has collected tax and issued invoices to the purchaser. As such, restriction of the amount of Input Tax Credit on this ground, cannot be sustained and requires re-consideration.

Further, with regard to the second issue where High Court set sides the SCN for reopening of cases and consequential order passed reversing the input tax credit to the extent of either four per cent or five per cent or on ad hoc percentage. The Honorable High Court directed the Assistant Commissioner to issue appropriate show cause notices to the petitioners clearly setting out under what circumstances they propose to revise or call upon the petitioner to refund sanctioned and after inviting objections proceed in accordance with law.

This is landmark decision as there is dispute on both issues in GST also. Section 16(2) requires that payment of GST should be made by supplier only then the credit is allowed to recipient. Hence, there is specific provision in this regard in GST. Whether the decision cited supra will be applicable in GST also? Moreover, the department will try to recover the tax amount from supplier also and meanwhile, it will try to disallow the credit to recipient as the supplier has not paid the tax. Will it not amount double recovery of tax. We do understand that there is joint responsibility of payment of tax on supplier and recipient but the prime recovery should be from supplier and if he fails then only recovery should be made from recipient.

On second point also, normally department tries to recover the ITC from the taxpayer if there is shortage in receipt of material. Even in Excise regime, there was larger bench decision that if it is normal loss (for which recipient does not raise debit note) then credit will not be recovered. But if it is abnormal loss then only credit should be reversed. But under GST, the department has once again started litigation and maintained that decisions of earlier regime are not applicable in GST. There will be another round of litigation.
 
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