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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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Points on Sabka VIshwas Scheme

Points on Sabka VIshwas Scheme
  1. Points relating to discrepancies in portal
 
  1.  There is lot of problem in the portal for registration. For non assessee, we can apply. But the portal allows for applying only excise registration. For service tax, we have to approach to GST department. It takes a lot of time. The online facility should be provided.
  2. If we register online on portal as non assessee then it takes us to Central Excise litigation or application. It does not to fill the service tax application. It should be sorted out.
  3. In case we are already registered with the department and forgot our username and password then it allows us to create new username and password. It sends the OTP on registered mobile number and e-mail id. Most of assesse does not remember the registered mobile number and e-mail id. Even the e-mail id has been changed. Then there is no option available. Then we have to approach to department but they do not have answer to this problem. There is no response from portal also.
  4. If we go to file the application online then some cases it does not open the portal and only allows us to “create challan”. When we have not filed the application then how can we file the application?
  5. If we login once but in certain cases portal does not allow login again. There is no solution except to write to helpdesk. But no solution from helpdesk.
  6. The SLVDRS-2 and SLVDRS-3 are generated but everyone it is very difficult to login and see the day to day progress. Many assessees like transporters are not much educated, hence are not able to read the message and communicate with the consultant on time. Hence, it is very difficult to come on hearing or to deposit the amount on time. For this purpose, the hearing should be shown on notice board. It will be very transparent system.
  7. When we have deposited the amount online after issuance of SLVDRS-3 but it is not linking the same with the portal. Hence, this problem should be sorted out. We will not be able to use this amount for any other purpose. The central Excise and service tax are not operational now.
  8. We are not able to download SLVDRS-2, 3 and 4 from website. These are required like for filing withdrawal application from Court, we require the same. But we cannot get the print outs. For this purpose, only screen shot can be taken but it is not acceptable to authorities.
 
 
  1. Other technical problems:-
 
  1. We have filed application in CESTAT but these are lying in defect. Due to this reason, we are not able to file the application online. The portal requires the CESTAT appeal number but the same is not generated. Can we file the application in this case? The defect diary number is generated by registrar office. Can we file the application with that number?
  2. We have filed the appeal along with condonation of delay. Whether we will come under litigation or arrear without hearing taking place for condonation of delay?
  3. The appeal was dismissed for non-appearance. We have filed the restoration of appeal with the appellate authority and it is pending in CESTAT. Can we file the application under this scheme?
  4. When we file the application with the department. The intimation of deposit of dues is to be given to range office or division office or commissionerate. Normally all the offices pursue for the same and many times demand for complete Xerox of case details. It has also been seen that local offices asks the assessee to withdraw the application as they have filed wrong application. But the portal does not allow to withdrawal of application. The right of rejection of application lies with the local department or with the committee. When the Government has said that there should not be any communication between assessee and department then should we provide all the documents to the local offices?
  5. The adjudication officer as well as appellate authorities by OIO and OIA has accepted the contention of assessee and held that certain amount has been deposited by the assessee with department. But local offices demands for the challan and it is told that your application will be rejected. The accepted factual position will not be accepted by the department in the scheme.
 
  1. Legal points:-
 
  1. A case was booked relating to fourth schedule items. If one of applicant is only for penal amount then whether he can opt for the scheme?
  2. There is no provision in law that co-accused will apply only if main assessee has applied for the scheme. But the circular has clarified so. Whether circular can override the legal provisions? Can co-accused apply under the scheme?
  3. The circular as well as FAQ clarified that co-accused can apply after the main accused has applied in the scheme. When the main accused and co-accused are different person and do not have communication with each other then how the co-accused will apply for the same. Moreover, the main accused apply on last date i.e. on December 31, 2019 then how co-accused will apply for the same?
 
 

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PRADEEP JAIN, F.C.A.

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