Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   FM acknowledges problems faced by businesses in migration to GST *   Tariff Notification in respect of Fixation of Tariff Value of Edible Oils, Brass Scrap, Poppy Seeds, Areca Nut, Gold and Sliver *   Rate of exchange of conversion of the foreign currency with effect from 21th July, 2017 *   Clarification regarding import of goods for personal use through courier  *   GSTIN requirement for the purpose of import & export  *   Operational problems being faced by EOU in GST regime consequent to amendment in Notification no. 52/2003-Customs dated 31-3-2003 *   Detailed guidelines for retesting of sample *   Seeks to Impose provisional anti-dumping duty on imports of 'O-Acid" originating in exported from China PR  *   SEZ units exempted from IGST  on import *   aircrafts exempted from customs and  IGST *   Drawback of Integrated Tax and Compensation Cess paid on imported goods upon re-export under Section 74 of the Customs Act, 1962 *   Disposal of seized/confiscated cigarettes of foreign origin vis-à-vis provisions of the Cigarettes and other Tobacco products (Packaging and Labelling) Rules, 2008 *   Amendment in export policy of sandalwood oil *   Addition of M/s International Gemological Institute (India) Pvt LTd. in paragraph 4.42 of FTP 2015-2020 *    Amendment in export policy for export of chemicals listed under SCOMET *   Permission to supply of essential commodities to the Republic of Maldives during 2017-18 *   Amendment in export policy of Muli Bamboo and export policy for bamboo products *   Extending Merchandise Exports from India Scheme (MEIS) benefit for `Onions Fresh or Chilled` *   Revision of Permanent IEC code to alpha numeric format *   Applicability of FTP provisions in the context of the implementation of the GST regime *   No excuse for firms not to be ready for GST: Arun Jaitley  *   Exempt roads, railways from GST: Assocham to govt *   Companies may lose their registration if they fail to pass GST benefits to you  *   Industry hails 2 month relaxation in filing of returns under GST *  Indian Mid-Market Companies See GST as a Boon *  Drug inventory with stockists falls ahead of GST *  Government examines drawback benefit schemes in GST regime  *  Excise Department to have own Vigilance Cell *  Excise cut on alcohol may protect off-licences from Brexit impact *  Use of Natural Resource-Cenvat credit to be carried forward under GST: Finance Ministry
Subject News *  Deadline for GST composition scheme extended till Aug 16 *   Services provided by smaller RWAs are exempt from GST *   Seeks to extend levy of anti- dumping duty on imports of ' Grinding Media Balls' (excluding Forged Grinding media Balls), originating in, or exported from, Thailand and people's Republic of China imposed vide Notification 36/2012- Customs (ADD) ,dated 16th July, for one year i.e. up to and inclusive of the 15th July, 2018. *   IGST exempted on cut & polished diamonds *   Seeks to increase import duty on sugar [Raw sugar, Refined or White sugar, Raw sugar if imported by bulk consumer under tariff head 1701, from the present 40% to 50% with immediate effect and without an end date *   Amended chapter heading 8504 40 in notification no. 25/2005 customs *   Duty Drawback for supplies made by DTA units to Special Economic Zones in the GST scenario *   Implementation of Customs (Import of Goods at Concessional Rate of Duty) Rules, 2017 *   Export procedure and sealing of containerized cargo *   Regarding revised rates of Rebate of State Levies on Export of Garments and textilemade-up articles w.e.f. 01.07.2017 *   notification No.28/2002-Central Excise, dated the 13th May, 2002 amended {See notification no 20/2017-CE, dt. 03-07-2017 in What’s new}   *   Notification No. 16/2010-Central Excise, dt 27th February, 2010 rescinded {See notification no 19/2017-CE, dt. 01-07-2017 in What’s new}   *   Exemption from Additional duty of excise on goods specified in the Seventh Schedule of Finance Act, 2005 {see notification no. 18/2017-CE, dt. 01-07-2017 in What’s new} *   Amendment in various Central Excise Exemption notifications relating to Export Promotion Schemes {See notification no 17/2017-CE, dt. 30-06-2017 in What’s new}   *   Amendment to notification No. 23/2003-CE, dt 31st March, 2003 {See notification no 16/2017-CE, dt. 30-06-2017 in Whar’s new} *   Exemption from special additional excise duty on Motor spirit & HSD Oil omitted {See notification no. 15/2017-CE, dt. 30-06-2017 in What’s new} *   Amendment in notifications 52/2002 –CE, 8/2003-CE, 38/2004-CE, 3/2006-CE, 29/2008-CE, 62/2008-CE and 21/2009-CE *   Exemption from excise duty on goods specified for defence and other specified purposes {see notification no. 13/2017-CE, dt. 30-06-2017 in What’s new} *   Exemption from excise duty on goods manufactured on or before 30th june 2017 but not cleared from the factory of production before 1st july 2017 {see 12/2017-CE, dt. 30-06-2017 in What’s new} *   Notification 12/2012-central excise superseded {see notification no 11/2017-CE, dt. 30-06-2017 in What’s new} *   Few Central Excise notifications rescinded. {See notification 09/2017-CE, dt. 30-06-2017 in What’s new} *   Exemption to specified goods supplied to the United Nations or an international organisation for their official use from excise duty {see notification no 10/2017-CE, dt. 30-06-2017 in What’s new} *   Credit transfer document under rule 15(2) of CCR, 2017 prescribed {See notification no21/2017-CENT dt. 30-06-2017 in What’s new} *   the new CENVAT Credit Rules, 2017 notified {See notification no. 20/2017-CENT dt. 30-06-2017 in What’s new} *   The new Central Excise Rules, 2017 notified {See notification no 19/2017-CENT dt. 30-06-2017 in What’s new} *   Classification of Printed Workbooks, Exercise books etc. under erstwhile CETA 1985 {See circular no1057/06/2017-CX dt. 07-07-2017 in What’s new} *   Handling of legacy work of LTUs in the GST regime {See circular no 1056/05/2017-CX dt. 29-06-2017 in What’s new} *   Postings/transfers in the grades of Principal Commissioner/Commissioner of Customs and Central Excise - Please refer to D.O. letter dt. 31-05-2017 from Member (Admn.)Corrigendum to Office Order 79/2017 {See Office Order No. 79/2017 in what’s new} *   Grant of Ante-dated Non-Functional Selection Grade to Ms. P.N. Hemalata, Addl. Commissioner (Retd.) on ad-hoc basis w.e.f. 30.07.2009 {See office order no. 80/2017 in what’s new} *   Posting of 3 IRS (C&CE) in GST Policy Wing {See office order no. 81/2017 in what’s new}  

Comments

Publish Date: 21 Sep, 2016
Print   |    |  Comment

Audit by department: Justified or not?

Audit by department: Justified or not?
 

An article by:-
CA. Pradeep Jain
CA. Preeti Parihar
CA. Vaibhav Bothra

 
Introduction

“Audit” – One of the most dreaded consequence of getting registered with the service tax department. Nobody wants to get strangled in the vicious circles of departmental audit and yet, sooner or later, you have to face the dungeon of audit. Times and now, questions have been raised on the qualifications and eligibility of the officers of the department to conduct audit, but the Government has proved to be adamant in continuing the ritual despite of the poor results of such audits. This piece of articulation is on the journey of provisions related to audit in the Chapter V of the Finance Act, 1994 governing the service tax law.
 
The mysterious provisions
 

Rule 5(2) of the Service Tax Rules, 1994 It requires the Assessee to furnish to the Superintendent of Central Excise a list in duplicate of all the records prepared or maintained by him for accounting of transactions, in regard to providing any service, receipt or procurement of anybody’s service and payment of such service.
 
Types of documents that can be asked to be made available “on demand” The assessee is required to furnish following documents on demand:-
(i)    Records mentioned in terms of Rule 5(2);
(ii)   Cost Audit Reports, if any, under Section 148 of the Companies Act, 2013;
(iii)   Income Tax Audit Report, if any, under Section 44AB of the Income Tax Act, 1961.
 
Section 72A of the Finance Act (Special Audit)
 
It is only where one of the three contingencies as mentioned in Section 72A of the Finance Act exists, that the Commissioner may direct the Assessee to “get his accounts audited either by a Chartered Accountant or a Cost Accountant nominated by such Commissioner”. The extent of the audit and the period for which it should be conducted is also to be specified by the Commissioner.
 
Section 82 of the Finance Act (Power to search premises)
 
This power can be exercised when the officer has a reason to believe that:-
(i)                there are documents or books that have been secreted in a place; and  
(ii)             such documents or books are useful or relevant for any proceedings.

 
The dispute
The service tax department undertakes audit at frequent intervals and all the records maintained by the service provider are scrutinized. The outcome is in form of audit paras, some genuine and some issued for procedural lapses, almost all result into issue of show cause notice. As the audit is an unwarranted situation, some of the assessees keep their fingers crossed and some opt for legal way to avoid the same. So, the issue of legality of audit by departmental officers has been commented by various Courts.
 
Judicial pronouncements
·        The very first stone was thrown by the Hon’ble  High Court of Delhi in the case of Travelite (India) Vs. Union of India & Ors. [W.P. (C) 3774/2013, C.M. No. 7065/2013]. It very specifically held that Rule 5A(2) of the Service Tax Rules ultra vires the provisions of the Finance Act. It quashed the rule stating that no Service Tax Audit can be conducted by the Department and only Special Audit within the Statute as mentioned under Section 72A of the Finance Act can be done either by a Chartered Accountant or Cost Accountant only in specified certain circumstances”. It was further held that Service Tax Audit as envisaged in Rule 5A(2) of the Service Tax Rules does not have appropriate statutory backing of the Finance Act.
 
·        Following the same decision, the service tax audit by departmental officers was denied in the cases of ACL Education Centre Pvt. Ltd. & Ors. Vs. Union of India [2014-TIOL-120-HC-ALL-ST] and SKP Securities Ltd. Vs. DD (RA-IDT) & Ors. [2013-TIOL-38-HC-KOL-ST].
 
·        As on December 18, 2014, the Hon’ble Apex Court granted stay on the operation of the Hon’ble Delhi High Court judgment in the Travelite case. This decision has been cited at Union of India And Ors Vs. M/s Travelite (India) [2014 (12) TMI 1099 – SUPREME COURT]
 
Circulars & Notification issued to nullify the HC decisions
·        Circular No. 986/10/2014-CX dated October 9, 2014 was issued by the board which intended to clarify that judgment under the Travelite case does not deal with the issue of audit in the Central Excise. It was further clarified that there is adequate statutory backing for Audit by the Central Excise officers by virtue of Section 37(2)(x) of the Central Excise Act, 1944 and Rule 22 of the Central Excise Rules, 2002 for conducting Central Excise Audit.
 
·        Notification No. 23/2014-ST dated December 5, 2014was issued to substitute rule 5A(2) to bring within its purview the officer authorised by the Commissioner or the Audit Party deputed by the Commissioner or CAG to conduct Service Tax Audit alongwith the Chartered Accountant or a Cost Accountant.  
 
·        Circular No. 181/7/2014-ST dated December 10, 2014 was issued to clarify that by virtue of amendment made in Section 94(2)(k) of the Finance Act by Section 114(J) of the Finance Act, 2014 w.e.f. August 6, 2014; now the Rule 5A(2) of the Service Tax Rules has legal backing. Therefore, it was clarified that the judgment of Travelite (India) is not applicable.
 
·        Circular No. 995/2/2015-CX dated February 27, 2015was issued by the CBEC on the subject – “Central Excise and Service Tax Audit norms to be followed by the Audit Commissionerates”. In this circular, directions were given to field formations regarding planning and conduct of audits and audit procedures to be followed.
Thus, after judicial pronouncements quashing the validity of audit by service tax authority, amendment was made in legal provisions to nullify the effect. Subsequent circulars issued in this respect also indicate that the Revenue is not in mood of giving up the audit powers.
 
Recently held:-
Recently, in the case of Mega Cabs Pvt. Ltd. Vs. Union of India And Ors [2016-TIOL-1061-HC-DEL-ST], the Hon’ble Delhi high Court has delivered a landmark judgment covering the following issues:-
1.     Whether Service Tax Department or CAG can conduct Service Tax Audit?
2.      Whether substituted Rule 5A(2) of the Service Tax Rules, 1994 (“the Service Tax Rules”) is ultra vires the provisions of the Finance Act, 1994 (“the Finance Act”)?
In this case, M/s Mega Cabs Pvt. Ltd. (“the Petitioner”) received a letter in which it was intimated that the audit will be done of its service tax records by service tax officers in terms of rule 5(2) of the Finance Act, 1994. Being aggrieved, the Petitioner filed a petition before the Hon’ble High Court of Delhi, challenging the Impugned letter, along with Rule 5A(2) of the Service Tax Rules (as amended) on the grounds that it is beyond the rule making powers of the Central Government. The Petitioner also challenged the constitutional validity of Section 94(2)(k) of the Finance Act on the ground that it gives “plainly unguided and uncontrolled” delegated powers to the Central Government for framing rules and also the Circular No. 181 which clarifies that by virtue of amendments made by notification no. 23/2014-ST, now the audit by service tax department has legal backing.
The Delhi High Court analyzed the provisions of the Finance Act extensively and observed as under:-

  • Rule 5A(2) of the Service Tax Rules, as amended, to the extent that it authorizes the officers of the Service Tax Department, the audit party deputed by a Commissioner or the CAG to seek production of the documents mentioned therein on demand, was held as ultra vires the Finance Act and, therefore, struck it down to that extent;
  • It was held that the expression ‘verify’ in Section 94(2)(k) of the Finance Act cannot be construed as audit of the accounts of an Assessee and, therefore, Rule 5A(2) of the Service Tax Rules, cannot be sustained with reference to Section 94(2)(k) of the Finance Act;
  • Circular No. 181 was declared as ultra vires the Finance Act and was struck down.
  • It quashed the Impugned Letter addressed to the Petitioner as being unsustainable in law.
  • It declared Circular No. 995 and the Central Excise and Service Tax Audit Manual 2015 issued by the Directorate General of Audit of the CBEC, as ultra vires the Finance Act, as they do not have any statutory backing and cannot be relied upon by the Department to legally justify the audit undertaken by officers of the Service Tax Department.

 
While winding
It is pretty much clear from the recent decision that the tussle between the courts and the government is a long running drama and the end to it is no way near. On one hand the courts have understood the pain of the assessees to be assessed by ineligible auditors and on the other hand the government does not want to let the assessees breath freely. As of now the situation seems to be in favour of assessees, only until the department does not issue any such letter for audit.
P.S. the situation in favour of assessees can be said only if they opt for suit in the court of law, otherwise no benefit of these decisions is ever available to them and litigation has its own costs.

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