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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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Publish Date: 12 May, 2007
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PAYMENT OF SERVICE TAX BY MARCH 31: PRACTICAL DIFFICULTIES

 

PAYMENT OF SERVICE TAX BY MARCH 31: PRACTICAL DIFFICULTIES

 

The Central Board of Excise and Customs has issued Notification No. 01/2002-ST, dt.14.01.2005. It has amended the Rule 6 of Service Tax Rules, 1994. The Rule 6(1) after amendment reads as follows: -

 “(1) The service tax on the value of taxable service received during any calendar month shall be paid to the credit of the Central Government by the 25th of the month immediately following the calendar month :
Provided that where the assessee is an individual or proprietary concern or partnership firm, the service tax on the value of taxable service received during any quarter shall be paid to the credit of the Central Government by the 25th of the month immediately following the said quarter:
Provided further that the Service Tax on the value of taxable services received during the month of March or the quarter ending March, shall be paid to the credit of the Central Government by the 31st day of March of the calendar year.”
 
In this article, we are trying to analyze the practical difficulties arising out of implementation of this new amended Rule which are as follows: -
          1. Meaning of amendment : - As it is ample clear from the reading of new amended rule that the service tax for the month or quarter ending on March 31 has to be paid by March 31 itself. Earlier the assessee, other than individual, proprietary concern and partnership firms, were paying the service tax for a month by 25th of the following month. But they have to pay the tax for the month by March 31 themselves. For the rest of the months they will pay the tax as they were paying earlier. Similarly, the individual, proprietor and partnership firms who were paying tax for the quarter by 25th of the immediately following month, has to pay the tax for the month of March by March 31 itself.
          2. Objective of Amendment: - The Government has not declared the real objective behind the amendment. But it seems that the objective of Government is to collect the service tax for the financial year within the same financial year. It will enable the Government to show that they have achieved its targets. The Government will show its realization against the projected budget estimates. But it will create a lot of problems which are discussed in enumerated paras.
          3. Calculation of Tax: - The assessee has to calculate the complete amount received by him by March 31 on that day itself. He has to calculate the tax on the very same day. Thereafter, calculate the CENVAT credit and deduct the same from the tax amount. After this calculation, deposit the remaining amount of this day only. It will really be very cumbersome. The problem is aggravated by the large number of small assesses registered under the Service Tax. It is not expected from small photographers, dry cleaners, video-graphers etc. to calculate the amount and deposit the tax on the same day. If they fail to do so then they will face the harsh penal provisions of Rs. 100/- to Rs. 200/- per day under section 76 of the Act along with interest @13 % under section 75. This will invite to undue litigation.
          4. Estimated Tax amount: - The assessee who can not exactly calculate the tax amount will try to pay it on estimated basis. The shortfall in the tax amount will call for the interest and show cause notice for penal action. But the excess deposit of tax amount will lead to filling of refund application as there is no provision like maintenance of PLA register (as maintained by the Central Excise assessee) for the service tax assessee. Thus, they can not carry forward the excess amount. They have to pay the exact amount. There is also no provision for the adjustment also. The only provision of adjustment is available in Rule 6(3) which reads as follows: -
“Where an assessee has paid to the credit of Central Government service tax in respect of taxable service and the service tax in respect of taxable service, which is not so provided by him, either wholly or partially for any reason, the assessee may adjust the excess service tax so paid by him (calculate on pro rata basis) against the service tax liability for the subsequent period, if the assessee has refund the value of taxable service and the service tax thereon to the person from whom it was received.”
But the same situation is not available here and only solution is making an application for refund. The problem does not end here. If you are not able to estimate your tax liability exactly by due date then the department may ask for provisional assessment under Rule 6(4)of ibid. But it is very difficult procedure for small assessee of service tax. And too for the month of March only.
              5. Bank Holiday: - There is normally no transaction in the banks on year end. They are busy in closing their accounts. This will add fuel to fire. The assessee can deposit the tax on the next working day following the clause 6 of General Clause Act. But it will be against the basic objective of the Government to realize the amount in same financial year. The Board has to make extra arrangements for the same. They have to ask the bank to accept the Government dues on year end.
     Further, if the cheque is deposited on March 31 and realized later on then it will termed as payment of tax in time by virtue of Rule 6(2A) of aforesaid Rules. But when there is no transaction day in bank on march 31 then the cheque deposited on next working day will not be termed as payment by due date by the department. There is again scope for litigation.
6. Publicity: - This provision has changed the regular practice of paying tax by 25th of next month or quarter as the case may be. Seeing the large number of assessee registered with the department, this provision requires a very vide publicity. This can be done by newspaper, TV channels etc. But this will again incur a huge cost. The question again comes to mind that whether such a huge cost is feasible for just presentation of figures showing achievements of targets? The amount would have reached to the Exchequer on 25th of April. Should the hard earned money of the tax payers be wasted in this manner.
 
From foregoing, it is clear that the implementation of this provision will be very difficult. There is ample scope for litigation or refund claims, which will waste precious time and money of both department and assessee. Thus, this new provision of payment of tax by March 31 should be deleted from statue book.       
 
 
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