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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 threshold exemption is really an exemption?

GST Update on whether threshold exemption is really an exemption?

WHETHER THRESHOLD EXEMPTION IS REALLY AN EXEMPTION?
 
If we look at the present Central Excise Laws and Service Tax Laws, we find that there is small scale exemption wherein certain assessees are being exempted from payment of tax if their turnover in the preceding financial year is less than the threshold limit. In case of Central Excise Laws, the levy of central excise duty is exempted upto Rs. 1.5 Crores if the turnover of the preceding financial year is less than Rs. 4 Crores. Similarly, there is no levy of service tax if the taxable value of services in the preceding financial year does not exceed Rs. 10 Lakhs. However, the government had announced that the exemptions presently available will be minimised so that a reasonable revenue neutral tax rate is achieved. But, the provisions of the final GST Law indicate that there will be no threshold exemption in the GST regime.
 
 
We submit that section 2(107) of the CGST Act defines “taxable person” as a person who is registered or liable to be registered under section 22 or section 24 thereby meaning that payment of tax is dependent on the fact who is the taxable person. Furthermore, the provisions of section 22(1) of the CGST Act, 2017 states that every supplier shall be liable to be registered under this Act in the State or Union territory, other than special category States, from where he makes a taxable supply of goods or services or both, if his aggregate turnover in a financial year exceeds twenty lakh rupees. The above provision clearly states that a supplier is liable to be registered only if his aggregate turnover in a financial year exceeds twenty lakh rupees.
 
 
However, section 24 also states the categories of persons that are mandatorily required to get registered. The categories include persons making any inter-State taxable supply; casual taxable persons making taxable supply; persons who are required to pay tax under reverse charge etc. thereby meaning that the specified categories of persons will be required to get registration irrespective of the aggregate turnover. Say for example, a person making single supply of inter state will be liable to get registered as he will be considered as taxable person. Now, the question arises is that what is the benefit of relaxing requirement to get registered if the aggregate turnover is below twenty lakh rupees.
 
 
It is pertinent to mention here that a new provision has been introduced in the Final CGST Act, 2017 wherein as per section 9(4) if goods are supplied by unregistered person to registered person, the tax will be payable by the registered person under reverse charge mechanism. It is also worth noting that there is no monetary limit for invocation of this provision leading to conclusion that practically there is no threshold exemption in the GST regime. This is for the reason that even if the goods are procured from unregistered person, the tax will be payable by the registered person under reverse charge mechanism indicating that there is no threshold limit as such. Under the GST regime, tax will be payable by the registered person on purchase of goods from unregistered person thereby implying that the government does not intend to provide any kind of small scale exemption. However, no tax will be payable by unregistered person on supply of goods to another unregistered person if the aggregate turnover does not exceed Rs. 20 Lakhs but this will be a very rare phenomenon. It is most likely that the transportation of goods service by road will be under reverse charge mechanism which is commonly availed by every assessee and even if tax is paid under reverse charge mechanism, the assessee will be required to get registered and will be considered as taxable person. Hence, it appears that the threshold limit of Rs. 20 Lakhs provided in section 22 (1) is illusionary and rather GST will significantly enlarge the tax base of the government.  
 
Now the next question is whether an assessee who is required to register himself due to above reason, can continue to avail the exemption upto Rs. 20 Lakh? Say for example, if he has made an inter-state supply of Rs. 100/- and now he has to pay IGST. For this reason, he will register himself with the department. But his total intra state supply is Rs. 5 Lakh only. Can he avail the exemption on next intra state supply of Rs. 15 Lakh or he has to pay tax on next intra state supply since he is registered with the department. The provisions of CGST Act underlines that since he is registered with the department then he has to pay the tax on next supply. This means that as soon as he gets register for any reason then he has to forgoe his threshold exemption and start paying the tax.
 
 
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