Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

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