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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 whether AAAR empowered to condone delay beyond statutory time period? 130/2020-21

GST update on whether AAAR empowered to condone delay beyond statutory time period? 130/2020-21
It is often observed that the appeal is not heard on merits for the sole reason that it was filed beyond the statutory time period prescribed in the Statue. If we talk of erstwhile indirect taxation regime, it was settled law that the appeal was required to be filed within the stipulated time period of 60 days/2months with one month condonation allowed by the Commissioner Appeals in exceptional cases. It was held that since the time period along with condonation period is explicitly stated in the Statue, the Commissioner Appeals was not empowered to condone delay beyond the stipulated period. However, in case of appeals before Tribunals, the power to condone delay was not limited and the length of delay does not matter if there were genuine reasons for not filing appeal within the stipulated time period. In GST era, the concept of advance rulings and filing of appeals before the Appellate Authority for Advance Rulings (AAAR) is new and so is the issue regarding the power to condone delay for appeal filed beyond the stipulated time period. This issue was recently dealt with in the case of THE DEPUTY CONSERVATOR OF FORESTS (GST AAAR KARNATAKA) [ORDER NO. KAR/AAAR-15/12019-20 DATED 03/03/2020], wherein the delay of one day beyond the prescribed period was not condoned. The decision pronounced is the subject matter of discussion of the present update.
The AAAR held that on a plain reading of the provisions of Section 100 of the said Act, it is apparent that the same mandates that an appeal should be filed within 30 days from the date of communication of the advance ruling order that is sought to be challenged. Moreover, it was stated that the Appellate Authority being a creature of the statue is empowered to condone delay only to the extent of 30 days after the expiry of the initial period for filing appeal, if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the initial period of 30 days. In other words, the total limitation period during which an appeal can be preferred before this Authority is 60 days from the date of communication of the advance ruling order, on showing sufficient cause.
The AAAR concluded that it is not empowered to condone the delay beyond 60 days because the language of proviso to Section 100 of the CGST Act uses the words ‘not exceeding thirty days’ thereby indicating that this Appellate Authority could not entertain appeal beyond the extended period given under the proviso. If it condoned the delay beyond 30 days, it would render the phrase ‘not exceeding thirty days’ wholly otiose which would not be in accordance with the principles of interpretation.
 
Reliance was also placed on decision rendered by the Supreme Court in the case of SINGH ENTERPRISES VS CCE reported as (2008) 3 SCC 70 rendered in terms of Section 35 of the Central Excise Act, 1944 which also provided specific time limit for filing appeal before the Commissioner Appeals and the specific time period of condonation. Similar decisions were given by the Supreme Court in case of CONSOLIDATED ENGINEERING ENTERPRISES VS PRINCIPAL SECRETARY, IRRIGATION DEPARTMENT AND OTHERS – (2008) 7 SCC 169 and COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE VS HONGO INDIA (P) LTD – (2009) 5 SCC 791wherein it was pronounced that condonation of delay beyond specified time limit is not possible.
 
This is not the only decision wherein it was held that the AAAR cannot condone the delay beyond the prescribed period and rather similar decision was rendered in case of M/S DURGA PROJECTS & INFRASTRUCTURE PVT LTD VS KARNATAKA AAAR  wherein it was held that AAAR could entertain the appeal beyond the extended period under the proviso to section 100 of CGST Act, 2017 as it would render the phrase “not exceeding thirty days” insignificant. Hence, the situation is similar to the erstwhile regime wherein there was strict view as regards the period of condonation by the Commissioner Appeals for the reason that appellate authority is creature of Statue and cannot go beyond what has been empowered by the Act. Hence, it is high time that the assessee realizes the importance of challenging the AAR orders within the prescribed time limit otherwise it may lead to situation of “no remedy” to them, particularly when there are contrary views on the issue.
This is solely for educational purpose. 
 
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