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 Supreme Court denying credit on Outdoor Catering Services

GST Update on Supreme Court denying credit on Outdoor Catering Services
The issue regarding admissibility of credit on outdoor catering services has been a matter of dispute since erstwhile indirect taxation regime when the Cenvat Credit Rules, 2004 (CCR, 2004) were in force. The definition of ‘input service’ under the erstwhile CCR, 2004 was amended several times which created lot of disputes as regards admissibility of credit on various services, one of them being the service of outdoor catering. The issue regarding availability of credit travelled upto the Supreme Court in the case of TOYOTA KIRLOSKAR MOTOR PRIVATE LIMITED VERSUS THE COMMISSIONER OF CENTRAL TAX wherein it was confirmed that the credit of outdoor catering services cannot be availed by the assessee post amendment in the definition of ‘input service’ in April, 2011. The in-depth analysis of this decision with its impact in GST era is the subject matter of consideration of the present update. The petitioner contended that as per the Factories Act, 1948, they are under an obligation to establish a canteen in the premises of the factory and as per the Rules framed by the State of Karnataka, i.e., Mysore Factory Rules, the petitioner is required to maintain and supply food stuffs in the canteen. Moreover, the cost of providing canteen facility is being included in the manufacturing cost of finished product on which central excise duty is being discharged. Hence, they are eligible for availing credit of outdoor catering services provided by M/s Sodexho Food Solutions Private Limited. The hon’ble Supreme Court pursued the amended definition of “input service” under Rule 2(l) of the Cenvat Credit Rules, 2004, and concluded that the services of outdoor catering have been explicitly mentioned in the exclusion clause of the definition thereby meaning that post amendment w.e.f. April, 2011, the assessee cannot avail credit on outdoor catering services. The reliance placed by the petitioner on the decision given by hon’ble Madras High Court in the case of GANESHAN BUILDERS LTD. was also rejected on the grounds that canteen facility has been established primarily for personal use or consumption of the employees and so it is not permissible for the assessee to claim credit on account of specific prohibition contained in the definition of input service. The Apex Court concluded that there is no ambiguity in the statue and therefore, the court cannot add or substitute words in the statutory provisions while interpreting the statutory provision. The Supreme Court rejected reliance placed on various decisions by the petitioner on the grounds that they are pertaining to preamendment era and so not relevant in the facts and circumstances of the present case. Hence, the issue was decided against the petitioner by upholding denial of credit on outdoor catering services. The above decision is definitely setback to the assessees for the pre-GST era as the credit has been denied irrespective of the fact that maintaining canteen facility is statutory obligation under the Factories Act, 1948. If we compare the analogy of this decision in light of the provisions contained in the GST law, we find that the ratio of this decision may not be applicable in the GST era. This is primarily for the reason that under GST Law, section 17(5) providing restrictions in availment of input tax credit carves out exception by way of proviso that input tax credit in respect of restricted goods or services are admissible if they are obligatory for employer to provide the same to its employees or are used for making an outward supply of same category of goods or services. Consequently, the input tax credit may be allowed in restricted goods or services if it is obligatory to provide the same for employers. It is pertinent to mention here that there is controversy in the admissibility of input tax credit in view of the GST rate notification no. 11/2017-Central Tax (Rate) dated 28.06.2017 which prescribes condition of non-availment of ITC. This has been discussed in detail on earlier occasion in our separate GST update on section 17(5) versus rate notification. Hence, in our opinion, the ratio of the Supreme Court decision may not be applicable in the GST regime.
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