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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/3577

M/s M/s. Aadhar Stumbh Township Pvt. Ltd. Versus Commissioner of Central Excise & Central Goods & Service Tax Commissionerate
Issue:-
No Limitation applicable for Refund amount lying with Dept. having the Nature of Revenue Deposit: CESTAT
Brief Facts:-
The appellant is registered with Service-Tax Department and providing services under the category of “Construction Services”, including commercial/industrial building or civil structure, works contract service, etc. The appellant is engaged in executing work for the state government and therefore is eligible for exemption as per Notification No. 25/2012-ST.However, the exemption lapsed w.e.f. April 01, 2015 and consequently, appropriate amount of tax was being deposited by the appellant. Subsequently, the government extended the exemption benefit by making retrospective amendment in the aforesaid Notification. Therefore, refund of tax already deposited was demanded from the revenue authorities in this regard vide refund application sent through speed post. However, they were received back by the appellant with remarks “refused to accept”. Thereafter, refund application was again filed by the appellant as on 05.12.2016. However, after scrutinizing the application, deficiency memo was issued and it was asked to furnish various documents by the appellant. Further, another communication letter was served to the appellant alleging that the refund is time barred.
 
Appellant’s Contention:-
The appellant thus submitted following grounds:
 
The appellant submitted vide letter dated 13.11.2017 that they had claimed refund well within time prescribed u/s 102(3) of Finance Act vide speed post which was however, returned with remarks “refused”.  The Counsel of petitioner further submitted that the present controversy revolves around the address mentioned on the envelope. The issue is not related to dispatch of the refund application and receipt with remark of “refused to accept”. Therefore, it is well known that there was presume service on the department. Therefore, it was argued that the revenue authorities are trying to take advantage of the present situation, thereby denying the refund of the assessee on the grounds of being time barred. Further, it was contended that on account of retrospective amendment in exemption notification, there was no liability on the taxpayer to deposit service tax. Therefore, the amount of tax deposited has taken a character of “revenue deposit”        by operation of law and hence, should be refunded back. Refence was further made to Article 265 of the Constitution of India which provides that “no tax can be levied or collected except by the Authority or Law”.  Reliance was placed on following Judicial Rulings:-
1.     Kujjal Builders Pvt. Ltd. – 2018 (10) GSTL 374 (T-Delhi)
2.     Siemens Engineering & Mfg. Co. of India Ltd. - 1976 AIR 1785, 1976 SCR 489
3.     M/s. Agni Steels Pvt. Ltd. -2021 TIOL 251 CESTAT-Mad.
 
Moreover, it was submitted that as per Madras High Court in the case of M/s 3E Infotech Vs. Commissioner of Customs, Excise and Service Tax – 2018 (7) TMI 276, service tax was paid under misconception and therefore, it was held that claim for refund cannot be held barred by limitation, merely because period of limitation expired.
 
Respondent’s Contention: -
The respondent argued that refund claim is time barred because it is difficult to establish as to at which office the refund application was submitted by the appellant since the service tax division is not clearly visible whether it is 11 or II. Therefore, the refund applications were rejected being time barred.
 
Reasoning Of Judgment:­-
It was stated that as per the facts of the case, it can be sufficiently prove that the appellant had dispatched the refund application by speed post which were returned to the department with remarks “refused”. After observing the facts of the present case, it was held that the refund application is filed within the limitation as prescribed under Section 102(3) of the Finance Act. Further, the service tax deposited has taken the character of revenue deposit, by operation of law. Further, there is violation of Article 265 of the Constitution of India. Therefore, the impugned order was quashed and set aside and it was directed to revenue authorities to grant refund within 45 days from date of receipt of this order.
 
Decision: -
The appeal was allowed and refund was granted to the assessee.
Comments:-
The above judgement has proved to be a silver lining for the business community. It is well known fact that in case amount of tax is paid due to mistake of law, then the period of limitation cannot be attracted. Thus, the taxpayers can apply the same analogy under GST regime and take shelter from various unnecessary litigations and proceedings in this respect.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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