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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 REVISION OF TRAN-2 ALLOWED BY HIGH COURT 80/2020-21

GST UPDATE ON REVISION OF TRAN-2 ALLOWED BY HIGH COURT 80/2020-21
GST has completed three years from the date of its implementation but yet we are struggling on the issue of carry forward of credit belonging to Pre GST regime. Extension of time limit to file TRAN-1 has been the topic of discussion amongst the professionals as many High Courts have provided reliefs to the assessees by allowing them to file TRAN-1, prominent amongst the decisions being that of M/s Brand Equity Treaties Pvt. Ltd. allowing all assessees to file TRAN-1 before 30.06.2020 by referring to the provisions of Limitation Act. The category of registered persons who are litigating the matter of transitional credit can be divided as follows:-
  1. Those who were not able to file due to technical glitches.
  2. Those who did not file due to ignorance.
  3. Those who have wrongly filed and require the facility to revise.  
In the recent days the concentration is laid on the first two categories wherein many decisions have been passed in favour of the assessees in spite of the fact that government has made a retrospective amendment in section 140 of the CGST Act, 2017. But, the majority of cases involve the issue of non- filing of TRAN-1. In this update we will discuss the decision of Hon’ble Calcutta High Court pronounced in the case of M/s Optival Health Solutions Private Limited pertaining to revision of the Form TRAN-2.
Before we proceed into the facts of the case, we shall have a quick understanding on who all were required to file TRAN-2. Form TRAN – 2 can be filed by a dealer/trader who has registered for GST, but was unregistered under the old regime. Such a dealer who does not have a VAT or excise invoice for stocks held by them on 30th June 2017, can use TRAN -2 to claim tax credit on the stock available with them. A manufacturer or service provider cannot file Form GST TRAN – 2. It has to be filed by a dealer or trader at the end of every month, when stock is sold reporting the details to claim input tax credit only for 6 months. 
Coming to the facts of the case the petitioner had filed both Forms TRAN-1 & 2 within time but later on realised that TRAN-2 was wrongly filed. Therefore, the petitioner wanted to revise the TRAN-2. However, neither the Act/Rules nor the GST portal allow for rectification or revision of the Tran 2 so the petitioner has pleaded before the Calcutta High court to grant them appropriate relief.
The Hon’ble Calcutta High court held that the petitioner shall be allowed revise Form TRAN-2 either electronically or manually on the basis that law cannot take away the right of a person to explain his actions and correct them if he has valid proof. The Hon’ble High Court held that there is no ground on which the petitioner shall be denied the facility to revise the form.  
To sum up, even in this case it was held that a person cannot be denied the substantial right of credit as it shall lead to violation of Article 14 of the Constitution. Moreover, when facility to revise TRAN-1 was allowed, there cannot be any reason for denying revision of TRAN-2. It is pertinent to mention here that the Hon’ble Delhi High Court has recently allowed revision of GSTR-3B in the case of M/s Bharti Airtel Ltd. Hence, the benefit of revision cannot be taken away for lack of express provisions in the statue.
This is solely for educational purpose.
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