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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/2012-13/1104

Validity of Retrospective effect of Imposition of Service Tax on Renting of Immovable Property service

Case: ENTERTAINMENT WORLD DEVELOPERS LTD. V/S. UNOIN OF INDIA
 
Citation:2012 (25) S.T.R. 231 (M.P.)
 
Issue:- Service Tax on renting of immovable property imposed with retrospective effect – held not ultra vires the Constitution. 
 
Brief Facts:- Writ petitions challenge the imposition of 'service tax' on renting of immovable property.
 
The Supreme Court in the case of All-India Federation of Tax Practitioners and others Vs. Union of India and others [(2007) 7 SCC 527 upheld the validity of the said constitutional amendment.
 
In exercise of the legislative power conferred by the entry 92-C in list I of the Seventh Schedule of the Constitution of India as “TAXES ON SERVICES” , Service Tax was introduced by the Parliament.
 
The Delhi High Court in its judgment headed by the case of HOME SOLUTION RETAIL INDIA LIMITED V. UNION OF INDIA [2009(237) ELT 209 (Del) held that mere renting out of immovable property would not amount to ‘service’ and, therefore, would not be amenable to service tax.
 
A SLP by the Union of India against the said decision of the Delhi High Court was pending in the Supreme Court. However, the legislature without waiting for the decision of the SLP amended the definition of “taxable service” by enacting the Finance Act, 2010, wherein sub-clause (zzzz) of clause (95) of section 65 was amended and “taxable service” was defined to include “any service provided or to be provided to any person, by any other person, by renting of immovable property”.
 
Further by Section 77 of the Finance Act, 2010 this amendment was given retrospective effect. This amendment as well as retrospective of the same is under challenge in this petition.
 
Appellant’s Contention: - It has been argued that restrospectivity was not permissible because this amendment to the definition of “taxable service” is not merely clarificatory but brings about a substantive liability of taxation upon the service providers. It has also contended that by giving a retrospective effect to this amendment to the definition of “taxable service”, the service provider is also saddled with liability to pay interest as well as penalty on the default in payment of service tax for the past period.
 
Reasoning of Judgment:- The Court noted that the issues raised by Petitioner were answered against the petitioner given the reference of the following cases:
 
- SHUMB TIMB STEELS LTD. V. UNION OF INDIA AND OTHERS, 2010 (20) S.T.R 737(P&H)
 
- RETAILERS ASSOCIATION OF INDIA V. UNION OF INDIA AND OTHERS, W.P., 2011(23) S.T.R. 561 (BOM)
 
- CINEMAX INDIA LTD. THROUGH DIRECTOR V. UNION OF INDIA, 2011(24) S.T.R. 3 (GUJ)
 
- UTKAL BUILDERS LIMITED V. UNION OF INDIA, W.P, 2011(22) S.T.R. 257(ORI)
 
The Court held that even if it is assumed for the sake of argument that the amendment is not merely clarificatory but creates a substantive liability or right, the Parliament's right to legislate and create liabilities or rights with retrospective effect can be curtailed only by a restriction placed upon the legislative power of Parliament by one or the other provision of the Constitution of India, for example, the restriction of creating an offence with retrospective effect or the restriction from enhancing the punishment for an offence with retrospective effect as found in Article 20(1) of the Constitution of India. The Court noted that no provision of the Constitution of India has been shown which restricts the right of Parliament to legislate retrospectively creating a lax liability.
 
 
It was noted that according to the case of T.N. KALYANA MANDAPAM ASSOCIATION V. UNION OF INDIA AND OTHERS [(2004)5 SCC 632, the Supreme Court held that “a levy of service tax on a particular kind of service could not be struck down on the ground that it does not conform to a common understanding of the word “service” so long as it does not transgress any specific restriction contained in the Constitution.
 
That in fact, making available premises for a period of a few hours for the specific purpose of being utilised as a Mandap whether with or without other services would itself be a service and cannot be classified as any other kind of legal concept. It does not certainly involve transfer of movable property of any kind known to law either under the Transfer of Property Act or otherwise and can only be classified as services.”
 
No force was found in the petitions.
 
Decision:- Petitions dismissed.

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