Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

Comments

Print   |    |  Comment

UPDATE REGARDING REFUND OF SERVICE TAX FOR CANCELLATION OF FLAT IN GST ERA:- 136/2020-21

UPDATE REGARDING REFUND OF SERVICE TAX FOR CANCELLATION OF FLAT IN GST ERA:- 136/202
As we all know that construction of flats involve considerable time and it is possible that there is cancellation of the flat after implementation of GST regime which was booked in a project for construction of flats that started in service tax regime. The question arises is whether the prospective flat buyer cancelling the booking in GST regime will be eligible to claim refund of service tax from the department? This issue was considered recently by the Commissioner Appeals, Mumbai in the case of HARESH V KAGRANA (HUF) while passing Order in Appeal No. NA/GST/A-III/MUM/84/2020-21 dated 06.12.2019 which is the subject matter of discussion in our present update.
 
This appeal was filed by the prospective flat buyer who had cancelled his booking on 19.02.2019 and has filed refund claim on 19.08.2019 as the service tax amount was not refunded to him by the builder. The refund claim was filed under section 142(5) of the CGST Act, 2017 by the flat buyer which was rejected on the grounds of limitation under section 11B of the Central Excise Act, 1944 also made applicable to service tax vide section 83 of the Finance Act, 1994 by contending that the booking date was 28.12.2015 whereas the time limit for filing refund claim is 1 year from the date of payment of tax to the government. The learned Commissioner Appeals held that refund claim cannot be rejected merely on the grounds that the assessment has become final, particularly when it is clear that no service was provided to the appellant by the builder. The provision contained in section 142(5) of CGST Act, 2017 was minutely analysed which reads as follows:-
(5) Every claim filed by a person after the appointed day for refund of tax paid under the existing law in respect of services not provided shall be disposed of in accordance with the provisions of existing law and any amount eventually accruing to him shall be paid in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944. 
 
The learned Commissioner Appeals concluded that the non-obstante clause is very crucial in the provision as it frees the refund claims filed under section 142(5) of the CGST Act, 2017 from the fetters of limitation which is provided under sub-section (1) of section 11B. The only thing that is not overridden is the requirement of fulfilment of unjust enrichment clause as provided in sub-section (2) of section 11B.
 
It was further held that as no service was provided to the appellant, the service tax paid is in the nature of deposit and so the provision regarding time limit of one year is not applicable. The learned Commissioner Appeals also held that even if the payment is in the nature of service tax, the date of cancellation of flat will be considered as the relevant date for calculating the time limit of one year as the event that lead to refund of taxes is the cancellation by the buyer. In this context, reliance was placed on the decisions given in the following cases:-
 
·        CCE, PUNE VERSUS ISPAT PROFILES INDIA LTD. [2007 (220) E.L.T. 218 (TRI.-MUMBAI)]
 
·        SS AGRO INDUSTRIES VS C. CUS, AIR CARGO (EXPORT), NEW DELHI [2014 (309) E.L.T. 334 (TRI.-DEL)]
 
Therefore, it was held that refund is admissible and the appeal was allowed.
 
The above decision will be very helpful for all the service receivers who have cancelled their contracts in the GST era and have paid service tax for which they wish to obtain refund as it was held that limitation of section 11B does not apply in cases where refund claim is filed under section 142(5) of the CGST Act, 2017. It is worth mentioning that we have also received favourable order in case of our client, M/s Ridhi Sidhi Developer by Final Order No. 51209-51210/2019 dated 02.08.2019 passed by Hon’ble Delhi Tribunal wherein refund of service tax on project which was subsequently closed was granted by considering the limitation to start from the cause of action for filing refund being the date when the project was abandoned. 
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com