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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 THE SAGA OF TRANSITIONAL CREDIT CONTINUES 70/2020-21

GST UPDATE ON THE SAGA OF TRANSITIONAL CREDIT CONTINUES 70/2020-21
The remedy available in case of inability to file TRAN-1 or revise the wrongly filed TRAN-1 still continues as number of assessees are knocking the doors of High Courts. The landmark decision given by the Hon’ble Delhi High Court in the case of M/s Brand Equity Treaties Pvt. Ltd. has provided much need relief not only to the petitioner but to every assessee who could not file TRAN-1 within the stipulated period by invoking the provisions of Limitation Act and specifying the last date of availing the benefit to be 30th June, 2020. However, as we all know that the favourable decisions pronounced by High Courts are often not accepted by the department, the revenue department has filed Special Leave Petition before the Hon’ble Supreme Court against the decision given in the case of M/s Brand Equity Treaties Pvt. Ltd. It has been recently reported that the Apex Court has stayed the operation of the said decision as revenue authorities have contended that the reference to provisions contained in Limitation Act is not possible when the limitation is prescribed in the Statue. It is pertinent to mention that the Hon’ble Apex Court had on earlier occasion on the similar issue had rejected Special Leave Petition filed by the department against the order of Hon’ble Punjab & Haryana High Court in the case of Union of India Vs Adfert Technologies Pvt. Ltd. It is apprehended that the retrospective amendment made effective under section 140 after the decision of Delhi High Court in the case of M/s Brand Equity Treaties Pvt. Ltd. is one of the main grounds of the Special Leave Petition filed before the Hon’ble Supreme Court.
 
 
We have carried our detailed analysis on the decision in the case of M/s Brand Equity Treaties Pvt. Ltd. vide our GST update no. 45/2020-21. In our opinion, the retrospective amendment was not the sole reason for granting benefit by the Hon’ble Delhi High Court and there were other grounds such as credit is vested right under Article 300A of the Constitution and that the time limit prescribed in Rule 117 is directory in nature and not mandatory. It is worth mentioning that recently, the Hon’ble Delhi High Court has pronounced another favourable decision in the case of SKH Sheet Metals Components pronounced on 16.06.2020 wherein the aspect of retrospective amendment has also been considered.In the present case, the petitioner had filed TRAN-1 within the time limit but there was some mistake in claiming credit and wanted to revise the transitional credit which it was not able to do even after repeated requests. The Hon’ble Delhi High Court granted the relief by passing detailed order on the following points:-
 
  1. The GST system and its procedural fallibility and shortcomings:-It was held that even if it is assumed that petitioner committed mistake which is purely on account of human error, the law ought to provide remedial avenue. Since GST law is a major tax reform in indirect taxation, the difficulties faced in filing of the statutory forms is understandable. In this process, human errors cannot be ruled out and if they occur, the solution is not to criticize the taxpayer for the fault, but instead, the Government should endeavour to find a resolution. The government should support its citizens by making the burden of compliance and payment as simple as possible.
 
  1. The Finance (Amendment) Act, 2020 and its impact; Judgment in Brand Equity (supra):-The amendment to Section 140 came to be notified on 18th May 2020, vide notification No. 43/2020 dated 16th May 2020. Thus, the said amendment came into force after the date of the decision in Brand Equity (Supra). The said amendment was also not cited before the Court to contest the petitions. Nevertheless, all things considered, in spite of the amendment, it can be said without hesitation that the said decision is not entirely resting on the fact that statute [CGST Act] did not prescribe for any time limit for availing the transition of the input tax credit. There are several other grounds and reasons enumerated in the said decision that continue to apply with full rigour even today, regardless of amendment to section 140 of the CGST Act, 2017.
 
  1. Arbitrary distinction of timelines under Rules 117 & 117 (IA):-As the meaning of “technical difficulty on common portal” is not defined anywhere, the extension with the said condition is arbitrary.
 
  1. Concept of ITC and its significance; Whether procedural timelines for TRAN-1 are directory and mandatory?:-The purpose of the timelines prescribed is just to hasten the migration of taxes from the erstwhile regime to the new GST laws and for swift streamlining of the ITC. The timeline introduced by Rule 117 is purely procedural and the same was not treated as sacrosanct. The Central Government has continuously extended the same, by carving out an exception under Rule 117 (1A) and so the time limit has to be considered as directory in nature.
 
The above reasoning clearly reveals that the benefit of filing TRAN-1/revised TRAN-1 has been granted by the Hon’ble Delhi High Court by observing number of factors and moreover, the benefit is granted after considering the retrospective amendment made in the section 140. This decision has ignited hopes regarding favourable decision by the Supreme Court in the case of M/s Brand Equity Treaties Pvt. Ltd.
 
If we observe other rulings pronounced recently, it is found that in another case, Hon’ble Delhi High Court has allowed benefit in the case of M/sMangla Hoist Pvt. Ltd.rendered on 17th June, 2020 wherein the contention of the revenue department that they have filed Special Leave Petition before Supreme Court was rejected on the grounds that there is no stay granted. However, as discussed, the Supreme Court has granted stay in the case of M/s Brand Equity Treaties Pvt. Ltd. on 19.06.2020.
 
To sum up, in our opinion, the assessees should avail this one time opportunity and resort to file their TRAN-1 either on GST portal or manually before 30.06.2020 so that in case the Supreme Court affirms the verdict of Hon’ble Delhi High Court, the assessees are able to avail the benefit granted by the Delhi High Court. We hope the battle of carry forward of transitional credit is put to rest soon by the Apex Court.
This is solely for educational purpose.
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