Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  The GSTN has issued an Advisory dated 21.04.2026 about the introduction of an Offline Tool for the Invoice Management System (IMS)  *  CBIC extends due dates for filing of FORM GSTR 3B  for the month of April 2026 *  Interest cannot be imposed in adjudication order, if not demanded/quantified in show cause notice : Allahabad HC *  Wheelchairs with toileting facility eligible for exemption: CESTAT affirms customs duty exemption to importer *  Industries urge GST council to allow inverted duty refunds on input services *  Tamil Nadu GST dept introduced virtual hearing facility for GST appeals under under section 107 of the TNGST act: detailed guidelines  *  CIC urges authorities to implement GST evasion complaint tracking system *  Even if the assessee opts "NO" for personal hearing in form DRC-06 ,The mandatory requirement under section 75(4) to grant opportunity of hearing cannot be waived:Gujarat High Court  *  Glufosinate imports curbs imposed by govt *  Government extends Re-import period for exported cut & polished diamonds *  CIC flags lack of tracking system for tax evasion complaints,urges GST authorities to improve transparency *  No Custodial Interrogation needed in GST fraud case based on documentary evidence already in Department's Possession : Chattisgarh HC *  Orders under section cannot be sustained if passed without considering the taxpayer's objections and without granting a personal hearing:Gujarat High Court *  Mere cancellation of supplier's registration cannot,by itself,justify denial of ITC or cancellation of the recipient's registration:Bombay High Court *  High Court sets aside GST notice citing factual errors and natural justice violations *  Provisional Bank Attachment under Section. 110 of Customs Act Unsustainable Beyond Statutory period without Extension order: Bombay HC orders to defreeze accounts *  Post Clearance MRP Alteration by Distributor Does not attract Differential Customs Duty: CESTAT *  DGFT Expands scope of 'Screws' classification under RoDTEP Scheme  *  E-way bills surze to all time high of 140.6 million in March *  GST Exemption Allowed on Pure Labour Services for Standalone Houses: AAR  *  GST Payable Only on Margin in Second-Hand Car Sales, Subject to Strict Conditions and No ITC Claim: AAR *  DGFT rolls out procedure for allocation of calcined coke *  GST portal update : Pre-deposit amount now editable in Appeals *  J&K HC declared TMT scrap a 'Specified Good' eligibile for GST refunds under Support Scheme  *  Pigmy agents are employees of banks; no GST can be levied on commission  paid to them : Karnataka HC *  DGFT Revises HS Code Description for Screws Under RoDTEP *  GST Registration Cancellation Invalid Without Proper Service of Notice: Allahabad High Court. *  Bengaluru CGST | GST Backlog Appeals Deadline Fixed at June 30, 2026 *  No Time Bar on Refund of Service Tax for Services Not Rendered: CESTAT  Remands Indiabulls Case for Unjust Enrichment Check. *  Supreme Court Holds Renewable Energy Incentive Must Benefit Generators, Not Be Adjusted in Tariff
Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

Comments

Print   |    |  Comment

PJ/Case Law /2016-17/3305

Simultaneous levy of sales tax/VAT and service tax on the same transaction.

Case:-PIONEER PUBLICITY CORPN. P. LTD. VersusCOMMISSIONER, VALUE ADDED TAX
 
Citation:-2016 (43) S.T.R. 358 (Del.)
 
 
Brief facts:-  The petitioner has filed the present petition under Article 226/227 of the Constitution of India, inter alia, praying as under :
“(A)      Issue a writ of prohibition, or any other writ, order or direction of like nature, restraining the respondents from acting upon or taking any action in pursuance to the impugned notices and the impugned proceedings/action;
(B)        Issue a writ of prohibition, or any other writ, order or direction in the nature thereof thereby restraining the respondents from levying VAT on the transaction of rendering service on which petitioner has duly paid service tax;
(C)        Issue a writ of certiorari or any other writ, order or direction in the nature thereof quashing the proceedings initiated vide notice dated 23-6-2010, 24-4-2012, 8-5-2013, 23-6-2013, 26-7-2013 & 21-8-2013 and impugned penalty orders dated 26-7-2013;
(D)       Issue a writ of certiorari or any other writ, order or direction in the nature thereof quashing impugned notices of default assessment of tax and interest issued u/s 32 and notices of assessment of penalty u/s 33 dated 4-9-2014;
(E)        In the alternate if this Hon’ble Court holds otherwise then to issue a writ of certiorari or any other writ, order or direction in the nature thereof thereby quashing assessments made by Respondent No. 4 treating the transaction in question as service transaction;
And also to issue writ of mandamus or any other writ, order or direction in the nature thereof thereby directing Respondent No. 4 to refund the amount so collected on the transaction in question to the petitioner inasmuch as there cannot be simultaneous levy of both sales tax/VAT and service tax on the same transaction; and in the alternative to transfer the tax collected from the petitioner to Respondent No. 1.”
 
Appellant’s contention:- The petitioner impugns various notices issued under Section 59 of the Delhi Value Added Tax Act (hereafter the ‘DVAT Act’) calling upon the petitioner to submit details for the purposes of assessing the petitioner’s turnover chargeable to tax under the DVAT Act. Further, the petitioner also impugns penalty orders dated 26th July, 2013 passed by Value Added Tax Officer (VATO) under Section 86(14) of the DVAT Act. The aforesaid impugned notices (being notices dated 23rd June, 2010, 24th April, 2012, 8th May, 2013 and 21st August, 2013) were duly responded to by the petitioner by inter alia asserting that it is not assessable to tax under the DVAT Act.
The petitioner procures outdoor media space such asunipoles, kiosks, bridge panels, etc., from the Government Agencies and Corporations such as Delhi Metro, MCD, etc. The petitioner states that the said media space is used by it for display of advertisements of its clients and the petitioner is not engaged in any other activity.
According to the petitioner, the petitioner is rendering services chargeable to Service Tax under the Finance Act, 1994 and therefore, cannot be assessed under the DVAT Act.
While this petition was pending consideration, the petitioner was served with the notices of default assessment under Section 32 of the DVAT Act for financial years 2010-11, 2011-12 and 2012-13, assessing the petitioner’s taxable turnover at Rs. 1,12,59,64,384/-, Rs. 1,20,91,72,662/- and Rs. 1,24,70,92,642/- respectively and consequently raising a demand of VAT of Rs. 21,16,00,327/-, Rs. 20,45,03,397/- and Rs. 18,75,33,691/- for the respective financial years. In addition, the petitioner has also been served with the notices of penalty dated 4th September, 2014 under Section 33 of the DVAT Act.
The notices of default assessment indicates that the VATO has assessed the petitioner’s turnover as eligible to VAT after concluding that the agreements entered into by the Petitioner with its clients constituted transfer of the right to use various display sites and, therefore, fell within the expanded definition of ‘sale’ under Section 2(1)(zc)(vi) of the DVAT Act.
The petitioner has also submitted in the alternative that if it is found that the transactions entered into by it constitutes ‘sale’ within the meaning of Section 2(1)(zc)(vi) of the DVAT Act, the Service Tax Authority may be called upon to refund the Service Tax charged on the transactions entered into by the petitioner with its clients.
There is considerable merit in the Petitioner’s contention that levy of Service Tax and Value Added Tax is mutually exclusive. The question whether the transaction entered into between the petitioner and its clients can be constituted as a ‘sale’ within the meaning of Section 2(1)(zc)(vi) of the DVAT Act is required to be answered keeping in view the principles as reiterated by this Court rendered on 2nd May, 2016 in W.P. (C) No. 1625/2014 (Tim Delhi Airport Advertising Pvt. Ltd. v. Special Commissioner-II, Department of Trade & Taxes & Ors.).
 
Reasoning of judgment:- Accordingly, they set aside the impugned default assessment orders and notices of penalty dated 4th September, 2014 and remand the matter to the VATO to consider it afresh in the light of the principles as reiterated in Tim Delhi Airport Advertising Pvt. Ltd. (supra). The penalty orders dated 26th July, 2013 passed under Section 86(14) of the DVAT Act are also set aside.
The petitioner will furnish the requisite details, if not already furnished before, in response to the impugned notices issued under Section 59 of the DVAT Act. The VATO shall consider the same and pass a reasoned order after affording the petitioner an opportunity to be heard.
It is clarified that all rights and contentions of the petitioner are open and if the petitioner is aggrieved by the order passed by the VATO, it shall be at liberty to initiate appropriate proceedings. It is further clarified that if it is found that the transactions entered into by the petitioner are chargeable to tax under the DVAT Act, the petitioner would also be at liberty to initiate appropriate proceedings for refund of service tax paid under the Finance Act, 1994. Needless to mention that if such proceedings are initiated, the same shall be considered in accordance with law.
The petition and the pending application are disposed of. However, in the circumstances, the parties are left to bear their own costs.
 
Decision:- Petition disposed of.

Comment:-The gist of the case is that Media space is used for display of advertisement. Issue arose whether amounts to sale eligible to value added tax. To be considering it afresh in light of principles as reiterated in Tim Delhi Airport Advertising Pvt. Ltd. Levy of service tax and value added tax is mutually exclusive. It is Clarified that assessee would be at liberty to initiate appropriate proceedings for refund of service tax paid if transactions entered into by it chargeable to tax under Value Added Tax Act.

Prepared by:- Monika Tak 
 
 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com