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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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PJ/Case Law/2013-14/2013

Benefit of section 73(3) admissible even if short payment discovered during the course of audit.

Case:-R.K. TRADING CO. VERSUS COMMISSIONER OF SERVICE TAX, AHMEDABAD

Citation:-  2013(31) S.T.R. 615 (Tri.- Ahmd.)

Brief Facts:-Appellant was paying service tax on the GTA services received by them from 2004 onwards. During the audit of the appellant's records in the year 2007-2008, it was found that appellants had not paid service tax of Rs. 34,279/- during the year 2004-2005 and 2006-2007. When this was pointed out by the audit party of the department, appellants immediately paid the amount with interest in January 2008 itself. Thereafter proceedings were initiated which has culminated in imposition of penalty under Sections 76 & 78 of Finance Act, 1994 equal to service tax liability determined.
 
Appellant Contentions:-Learned Counsel submitted that there was no detailed discussion about the nature of suppression of facts by both the lower authorities and both of them have simply stated that mere non-payment of service tax is suppression and intention to evade service tax has been presumed and penalties have been imposed. He submits that appellant was following the accrual method for ac­counting and for payment of service tax, the service tax is payable only when the GTA service charges were paid and consequently because of omissions on the part of personnel handling the accounts the mistake occurred and the very fact that appellants had paid service tax more than Rs. 1.08 lakhs in 2004-2005 and more than Rs. 1,34,000/- during the year 2006-2007 would show that they would not have tried to avoid paying a small amount of Rs. 34,279/- and make them­selves liable for payment of interest and penalty. He also relies upon the provi­sions of Section 73(3) of Finance Act, 1994 which provides that whenever an assessee pays the service tax and interest awaiting by himself or by the officers be­fore the issue of show cause notice, no show cause notice shall be issued and therefore in this case show cause notice itself should not have been issued leave alone imposition of penalty.

Respondent Contentions:-The respondent submits that appellants have not been able to explain properly as to how they failed to pay the service tax and the explanation that it was a clerical error has not been explained satisfactorily.

Reasoning of Judgment:-  Tribunal has considered the submissions made by both the sides. It is found that both the lower authorities have taken the view that mere non-payment of service tax amounts to suppression and the circumstances under which omission/shortly be occurred have not been discussed and considered. Further, it is also found that according to provisions of Section 73(3) of Finance Act, 1994, even if the amount was ascertained by audit party, if the assessee pays the amount before issue of show cause notice , no show cause notice could have been issued. After going through the records, it is found that both lower authorities have not given enough justification for invoking suppression in this case. In view of the above circumstances, it was felt that in this case there was no need for issue of show cause notice and initiating proceedings against the appellant. Therefore the appeal is allowed with consequential relief to the appellant.
 
Decision:-Appeal is allowed.

Comment:- The gist of this case is that the provi­sions of Section 73(3) of Finance Act, 1994 which provides that whenever an as­sessee pays the service tax and interest be­fore  issuance of show cause notice, no show cause notice shall be issued and consequently no penalty can be imposed. However, the benefit of this section is hardly extended by the revenue authorities and harsh actions are initiated against the assessees even for bonafide mistakes on their part. Further, it is also immaterial whether the short payment was made good by the assessee suo motto or on being pointed out by the revenue authorities.
 

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