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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 Laws/2012-13/1517

Complete stay granted when demand not confirmed with due diligence.
Case:- ALLIANCE BUILDERS & CONTRACTOR LTD. Versus COMMR. OF C. EX., MEERUT-II
 
Citation:- 2013 (30) S.T.R. 69 (Tri. – Del.)
 
Brief Facts:-The appellants provide ser­vices of Construction of Residential Complexes. They are registered with Service Tax Department and have been paying service tax. When Revenue conducted audit of Bareilly and Rudrapur units of the appellants for the periods 2005-06, 2006-07, 2007-08 and 2008-09 it was found that there was a difference between gross receipts shown in the profit and loss account and the value of service ren­dered by them as declared in their service tax return. Since Revenue was of the view that the value of taxable services declared by the appellants in their return was not correct and there was short payment of tax, Revenue initiated proceed­ings for recovery of such short paid tax and the proceedings have culminated in the impugned order confirming tax amount of Rs. 67,20,597 along with interest and penalties under Sections 76 and 78 of the Finance Act, 1994. Aggrieved by the order the appellants have filed this appeal.
 
Appellant Contentions:-The Counsel for appellants submits the following main reasons for the difference in figures in profit and loss account and the figures in ST-3 return :
 
1.    Appellants have undertaken several housing projects and have sold complete houses which had been constructed on their own land. As no services were rendered to the customers in such situation appel­lant's activities were not liable to tax.
2.    The amount received from customers during a year is not likely to tally with the amount of sale booked in profit and loss account. Whereas sale is booked on the basis of work completed, the amount received from the customer is the amount on which service tax is paid.
3.    There was no liability for payment of service tax on the amount re­ceived prior to 15-6-2005.
4.    Amount of Rs. 15.03 crores recoverable from debtors as on 31-3-2009 is liable to be reduced from the amount of sale.
5.    No service tax was payable on the amount of Rs. 2.44 crores re­ceived towards sale of shops during 15-6-2005 to 31-3-2009.
 
The learned counsel also submits that the demand confirmed by im­pugned order is not supported by law and the adjudicating authority has not done due diligence in verifying facts and figures before confirming the demand and hence the appeals should be admitted without any pre-deposit of dues aris­ing from the impugned order.
 
Respondent Contentions:-The Revenue submits that the adjudicating authority has considered the above submissions and conceded the contentions of the appel­lants wherever found correct. He invites attention to the table given in para 30 of the adjudication order reading as under :
 
SI. No. Description Amount
a. Differential Value of taxable Service as per
SCN
65,76,88,666/-
  Amount liable to be excluded along with reasons for its exclusion (As per details given below)  
b. Construction work done up to 15-6-2005 i.e.
prior to date on which levy of Service tax was
imposed on the Services rendered by the
party.
Rs. 44,39,45,785/-
  (-)
c. Advances received against sale of house, plot,
shops which have been completely handed
over to the Customers before 15-6-2005 i.e.
prior to levy of Service Tax.
Rs. 2,27,20,528/-
(-)
d. Advances refunded to the Customers between
1-4-2005 to 15-6-2005
Rs. 11,78,966/-
(-)
e. Amount            refunded against cancellation of booking after 15-6-2005 Rs. 1,85,01,188/-
(-)
f. Total amount (a to d) 48,63,46,367/-
g. Balance amount after exclusion (a- f) 17,13,42,299/-
h. Amount on which Service Tax liability has
already been discharged subsequently.
(-)
65,73,335/-
i. Total Value of taxable service (g-h) 16,47,68,964/-
j. Amount liable for Service tax after allowing
the abatement of 67% as per notification No. 18/2005-S.T., dated 7-6-2005 as amended vide Notification No. 1/2006-S.T., dated 1-3-2006
5,43,73,758/-
k. Service tax @12% recoverable along with 2% Ed. Cess and 1% SHE Cess 67,20,597/-
 
Therefore the Revenue submits that the demand is rightly confirmed and the appellants may be asked to make reasonable pre-deposit.
 
Reasoning of Judgment:-We have considered arguments on both sides. We note that the cal­culations shown in the SCN or in para 30 of the adjudication order does not take into account the outstanding payments to be received as reflected in the balance sheet. This clearly shows that the amount is not confirmed with due diligence. There are also a few legal issues to be examined in this case. The amounts are confirmed with reference to figures shown in profit and loss account as per AS7 standards prescribed by the Institute of Chartered Accountants for maintaining accounts of Construction companies. This standard is for ascertaining the profit and loss of a construction company and does not straight away reflect the position of receipt of payments which is the relevant factor for paying service tax. Amounts received against taxable activities can be arrived at only if the accounts are examined diligently by a person having some knowledge about accounting methods which is not done in this case.
So in the facts and circumstances of the case we consider it proper not to call for any pre-deposit for admission of this appeal. So the requirement of pre-deposit of dues arising from the impugned order is waived for admission of appeal and there shall be stay on collection of such dues during pendency of the appeal.
 
Decision:-Stay granted.

Comment:- The substance of this case is that when the demand itself has been computed by the adjudicating authorities by ignoring the provisions of law, it will be unreasonable to order pre deposit as the assessee has a strong case in his favour.
 
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