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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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INPUT TAX CREDIT AVAILMENT ON SUBSIDIARY SERVICES PROVIDED IN RESPECT TO MOTOR VEHICLES

INPUT TAX CREDIT AVAILMENT ON SUBSIDIARY SERVICES PROVIDED IN RESPECT TO MOTOR VEHICLES
INPUT TAX CREDIT AVAILMENT ON SUBSIDIARY SERVICES PROVIDED IN RESPECT TO MOTOR VEHICLES
This update seeks to discuss the admissibility of input tax credit pertaining to the purchase and other services in respect of motor vehicles and other conveyances.
Section 17(5) of CGST Act 2017 outlines the list of blocked credits and this lists allows the availability of input tax credit on motor vehicles on conditional basis. The relevant part of Section 17(5) reads as has been enumerated below-
(5) Notwithstanding anything contained in sub-section (1) of section 16 and subsection (1) of section 18, input tax credit shall not be available in respect of the following, namely:—
(a) Motor vehicles and other conveyances except when they are used––
(i) For making the following taxable supplies, namely:—
(A) Further supply of such vehicles or conveyances; or
(B) Transportation of passengers; or
(C) Imparting training on driving, flying, navigating such vehicles or conveyances;
(ii) For transportation of goods;
The analysis of above portion of section 17(5) makes it clear that the ITC on motor vehicles and other conveyances is allowed on conditional basis. It has been interpreted that the phrase "in respect of" is very restrictive in nature and it covers only the ITC involved in purchase of motor vehicle. All the other expenses like repairs-maintenance and insurance will be eligible for credit availment. This interpretation is based upon the fact that repairs and maintenance of motor vehicles is nowhere denied in section 17(5) or any other provision of CGST Act, 2017. When the ITC is not specifically denied, it is deemed to be allowed.
It is worthwhile to note that even the twitter handle provided by the government confirmed that ITC pertaining to the repair and maintenance of motor vehicles and conveyances used for business purpose shall be allowed.
In the recent proposed amendments in CGST Act wherein the bill is passed by the Lok Sabha i.e. CGST (Amendment) Bill, 2018, Section 17(5)(a) has been substituted as follows-
Notwithstanding anything contained in sub-section (1) of section 16 and subsection (1) of section 18, input tax credit shall not be available in respect of the following, namely:—
“(a) motor vehicles for transportation of persons having approved seating capacity of not more than thirteen persons (including the driver), except when they are used for making the following taxable supplies, namely:—
(A) Further supply of such motor vehicles; or
(B) Transportation of passengers; or
(C) Imparting training on driving such motor vehicles;
(aa) vessels and aircraft except when they are used––
(i) For making the following taxable supplies, namely:—
(A) Further supply of such vessels or aircraft; or
(B) Transportation of passengers; or
(C) Imparting training on navigating such vessels; or
(D) Imparting training on flying such aircraft;
(ii) For transportation of goods;
(ab) services of general insurance, servicing, repair and maintenance in so far as they relate to motor vehicles, vessels or aircraft referred to in clause (a) or clause (aa).
Provided that the input tax credit in respect of such services shall be available—
(i) Where the motor vehicles, vessels or aircraft referred to in clause (a) or clause (aa) are used for the purposes specified therein;
(ii) Where received by a taxable person engaged—
(I) in the manufacture of such motor vehicles, vessels or aircraft; or
(II) in the supply of general insurance services in respect of such motor vehicles, vessels or aircraft insured by him;
On the basis of the analysis of the aforesaid newly proposed amendment, clause (ab) allows the credit on motor vehicle mentioned in clause (a) and (aa). The clause (a) mentions vehicle having approved seating capacity not more than 13 passengers. Hence, the buses and vans will be covered and it can be inferred that credit pertaining to repair, maintenance and other services explicitly provided in case of motor vehicles used in business purpose and having seating capacity of more than 13 persons (including the driver)like buses, Omnis, vans etc. will be allowed without any restrictions.
However, no ITC shall be allowed in case of repairs, maintenance and insurance of motor vehicles having seating capacity less than thirteen persons. But proviso to this clause (ab) allows the credit on repair, maintenance of such motor vehicle which are used for the purpose.
specified in clause (a) and (aa). The credit on vehicles of seating capacity less than 13 persons is allowed to traders of such vehicle, rent-a-cab operators and training and driving institutes. Hence, the credit of repair, servicing, insurance etc. will be allowed to them. But it will create unnecessary dispute that authorized car dealers having service centre will get the credit on outsourced repairing work but small workshops will not get the same.
Moreover, the credit of repair and maintenance of cars will be allowed to manufacturers of cars and credit of insurance will be allowed to insurance company.
Further, it is indispensible to note that this amendment bill is subject to changes as it has not been notified yet. The money bill is to be tabled in Rajya Sabha. Also, amended SGST bill is to be passed by all state assemblies before it become a statue applicable all over India.
This is solely for educational purposes. You can reach us at www.capradeepjain.com, at our facebook page on https://www.facebook.com/GSTTODAYBYPRADEEPJAIN/ as well as follow us on twitter at https://www.twitter.com/@capradeepjain21. We hope the above is useful to you.
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