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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.  

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GST Update-17.02.2017-Works Contract

Works Contract- Sale VS Service to continue in GST regime

GST DAILY DOSE OF UPDATION

WORKS CONTRACT-SALE VS SERVICE TO CONTINUE IN GST REGIME

There has been a long history of litigation on the issue of classification of works contract activities that whether it is to be considered a service or to be treated as sale of goods. The reason behind it was that the constitution of India classifies the work contract activity as sale of goods and so does the state VAT laws. But in 2007, the Central Government introduced works contract service in the service tax net too. The service tax on works contract is continued in the negative list tax regime also by way of deeming fiction under section 66E (h) under declared list of services. Consequently, the activities became taxable under both VAT and service tax laws.

The centre of the litigation was the valuation of such service. Both the laws provided independent valuation measures and that is why the situation of double taxation occurred. VAT and service tax was being paid on the same value. Various judicial pronouncements having immense significance were rendered from time to time like the decision given in the case of Bhayana Builders [2013 (32) S.T.R. 49 (Tri.-LB)] where it was concluded that free supply of material will not be added to the taxable value of service for calculating the service tax. Reference may also be made to the landmark larger bench decision rendered by the Supreme Court in the case of Larsen and Toubro [2015 (39) S.T.R. 913 (S.C.)] where it was held that vivisection of services prior to 2007 is not allowable. The decisions pronounced are evidence of the prolonged litigation on this service and this has increased with time. However, it appears that the ruling of Bhayana Builders [2013 (32) S.T.R. 49 (Tri.-LB)]is overruled in the proposed GST regime as section 15(2)(b) of the GST Act, 2016 pertaining to value of supply seeks to include amount that supplier is liable to pay in relation to supply but which has been incurred by the recipient.

It was obvious that this litigation will also continue in the new regime of GST as well because even though the VAT and Service tax has been merged, it will be important to classify the activities into sale and service for the purpose of taxation. It is pertinent to note that in the new regime, the works contract service has been specifically classified as service in the schedule II which refers to classification of certain activities as sales/services. Although, the intention of the government by declaring works contract as a service was to remove confusion as regards classification of composite contracts such as works contracts in the GST regime but this clarification may further add fuel to the fire of litigation. This is for the reason that as per Article 366(29A) of the Constitution pertaining to transactions to be treated as deemed sales for the purpose of levy of taxes by State Government, works contract finds specific mention. Therefore, as per Constitution, works contract is a deemed sale whereas for the purpose of GST, works contract is a deemed service. The question that remains unanswered is whether deeming fiction created by an Act can override the provisions of the Constitution of India. This loophole wherein contrary deeming fiction is sought to be created by the new GST regime provides a scope for challenging the vires of Schedule II and thereby challenging the levy of GST on works contract. Hence, it is hoped that the government may make suitable amendment in the proposed GST law so that unnecessary litigations are avoided.

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