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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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Publish Date: 29 Dec, 2014
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RENTING VS HIRING BY UTTRAKHAND HIGH COURT

 

RENTING VS HIRING BY UTTRAKHAND HIGH COURT

An Article by-
CA Pradeep Jain &
CA Neetu Sukhwani

The main thrust of the present article is to analyse the landmark judgment given by the Hon’ble Uttrakhand High Court recently, in the case of Commissioner of Customs & Central Excise Vs Sachin Malhotra, Raj Kumar Taneja, and M/s Shiva Travels [2014-TIOL-2039-HC-UTTRAKHAND-ST] wherein the difference between renting and hiring has been reported for the purpose of levying service tax under the category of “Rent a cab services”. The highlights of the decision are summarised as follows:-
ØService tax is leviable under 65(105)(o) of the Finance Act, 1994 under the category of “Rent-a-cab” if and only if there is renting of cabs. Mere hiring of cabs will not be leviable to service tax.
ØHiring means when the owner of the vehicle, who may or may not be the driver, will provide the services while retaining the control and possession of the vehicle with himself. The customer is merely enabled to make use of the vehicle by travelling in the vehicle and is expected to pay metered charges which are usually collected on the basis of the number of kilometres travelled. Hence, the essence of hiring is that the control and possession of the vehicle is not transferred to the person hiring the vehicle.
ØRenting refers to a situation wherein the control and possession of the vehicle is being transferred by the owner to the person hiring the vehicle thereby meaning that the hirer is endowed with the freedom to take the vehicle wherever he desires with the obligation to keep the owner informed of his movements from time to time.

IMPACT IN PRE NEGATIVE LIST ERA:-It is worth observing that the above decision is being given in the context of provisions contained in the statue when the positive list of services was prevalent and service tax was leviable on the provision of specified services. Moreover, if a particular activity was held to be not covered by the definition of taxable service as defined in the statue, the same was outside the ambit of service tax. Therefore, it is pertinent to determine whether the activity of hiring of vehicle, could be considered as leviable to service tax under any other category of service or not. If the specified list of services as prevalent during the positive list tax regime is examined, the probable category of service that may be made applicable to the activity of hiring is the “Supply of Tangible Goods Service”. The section 65(105)(zzzzj) defined the taxable service as “any service provided or to be provided to any person, by any other person in relation to supply of tangible goods including machinery, equipment and appliances for use, without transferring right of possession and effective control of such machinery, equipment and appliances.”
It is also important to note here that the Article 366(29A) of the Constitution defines six categories of deemed sales, amongst which, one is transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration. Needless to mention that as sales tax is levied on the deemed sales, no service tax can be levied on said deemed sales.
 It is submitted that the Hon’ble High Court has concluded that when the control and possession of the vehicle remains with the owner of the vehicle providing the services of transporting the passengers, the said activity is covered by hiring and is not renting of vehicles. Therefore, no service tax is payable on the hiring of vehicles by the owner under the category of “rent a cab” services. However, as the other aspects and consequences of leviability of service tax on the activity of hiring has not been examined in the said decision, the same is discussed below. The situation of hiring of vehicles may get covered under the category of “Supply of Tangible Goods Service”. The situation of hiring of vehicles by the owner satisfies all the criteria of the taxable service i.e.,-
·        Service is in relation to supply of tangible goods, i.e., vehicles for use.
·        The said tangible goods (vehicles) are supplied without transferring the right of possession and effective control.
Likewise, when the control and possession of the vehicle is transferred to the person hiring the vehicle, it has been held that only then, service tax is leviable under the category of rent a cab service. In this respect, it is worth observing that the transaction of right to use any goods for a consideration without transferring the title of goods is also covered by the concept of deemed sales as stated in Article 366(29A) of the Constitution of India thereby meaning that sales tax is leviable on the said transaction. Consequently, the Central Government has no authority to levy service tax on the deemed sales. However, the ratio pronounced by the High Court has ignored the said concept of deemed sales and has held that when the owner of vehicle transfers control and possession of the vehicle, then only service tax will be leviable under the category of rent a cab services. Accordingly, the distinction made by the High Court between hiring and renting seeks to create ambiguity as regards the levy of service tax under the category of rent a cab services.

IMPACT IN POST NEGATIVE LIST ERA:-The impact of the said decision creating distinction between renting and hiring remains more or less same in the negative list era also. The only difference being that under negative list tax regime, the taxable services are not defined and all services except those specified in the negative list or mega exemption notification no. 25/2012-ST dated 20.06.2012 are chargeable to service tax. Therefore, hiring not being specifically covered by exemption is leviable to service tax. Moreover, the clause (f) of the declared list of services under section 66E specifically covers the activity of hiring without transfer of right to use goods. The clause (f) of section 66E reads as follows:-
“Transfer of goods by way of hiring, leasing, licensing or in any such manner without transfer of right to use such goods”.
The meaning of the term “transfer of right to use goods” is explained in the Education Guide released by the Board as transfer of possession and effective control over the goods in terms of the judgment of the Supreme Court in the case of State of Andhra Pradesh Vs RashtriyaIspat Nigam Ltd. [2002-TIOL-560-SC-CT]. Hence, the hiring of vehicles will be covered by the clause (f) of the section 66E of the Finance Act, 1994. Further, the ambiguity as regards levy of service tax on renting would prevail, particularly when the taxable service of rent a cab is not defined in the Finance Act, 1994.

Before parting:-First and foremost, the decision by differentiating between hiring and renting has created the dispute of classification of service as hiring attracts service tax at the rate of 12.36% while there is abatement available for the renting of cab. The rent a cab service has been given abatement vide notification no. 26/2012-ST dated 20.06.2012 and is also covered under reverse charge mechanism.  The abatement notification seeks to grant abatement of 60% to the renting of motor vehicle designed to carry passengers subject to the condition of non-availment of cenvat credit on inputs and capital goods. It is practically observed that no assessee is aware of the distinction between hiring and renting and normally, service tax is paid by availing the benefit of abatement without even examining whether the services fall under renting of cab or hiring. This decision will give an additional tool to the revenue department to deny the benefit of abatement to the assessees by contending that they are required to pay service tax at full rate instead of claiming the benefit of abatement notification. Furthermore, the service tax on renting of cab is to be paid by the service recipient under reverse charge mechanism if the benefit of abatement is availed and when the service is not provided to a person engaged in similar business. But, when the difference between hiring and renting is not known to assessees, the confusion as regards service tax liability under reverse charge mechanism will also increase. This is for the reason that the renting of cab is covered under reverse charge mechanism while hiring is not covered. The provisions as regards levy of service tax under the rent a cab services are already very complex and this decision pronounced by the High Court adds to the complicacies.

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