Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1353

Whether imposition of penalty justifiable when the assessee paid tax along with interest before issuance of SCN?

Case:-  A.R. TECH ARTISANS VersusC.C.E., JAIPUR-I

Citation:- 2012 (28) S.T.R. 286 (Tri.-Del.)

Brief Facts:-The appellant as per terms of their agreement with M/s. Tata Tele Services Ltd. (TTSL) were providing certain services for them - the services of col­lection of bill amount in respect of the post-paid collections, customer care ser­vices on behalf of the TTSL, etc., for which they were getting commission. The appellant had applied for Service Tax Registration in May, 2007 on their own. However, they were not paying service tax and this non-payment was detected and pointed out when the officers of Anti-Evasion visited their office. The appellant's service tax liability was determined which was dis­charged by them along with interest. Subsequently, the department issued a show cause notice for confirmation of the above- mentioned service tax demand along with interest and also for imposition of penalty on the appellant under Sections 76, 77 and 78 of the Finance Act, 1994. The show cause notice was adjudicated by the Asstt. Commissioner by which the service tax demand was confirmed along with interest and the amount already paid towards this demand was appropriated and besides this, penalties were imposed under Sec­tions 76, 77 and 78 of the Finance Act, 1994. On appeal to the Commissioner (Ap­peals), the Commissioner (Appeals) upheld the Asstt. Commissioner's order. Against this order of the Commissioner (Ap­peals), this appeal has been filed challenging only the imposition of penalty.

Appellant’s Contention:-The appellant pleaded that the entire service tax liability along with interest had been discharged by usas soon as the same had been pointed out and this was done before the issue of show cause notice, that there was no mala fide intention on the part of the appellant, that the appellant is small scale service provider, who were not aware of the provisions of service tax and failure to discharge the tax liability took place only during one year due to financial difficulties. The appellant, therefore, pleaded that in view of these circumstances, the Commissioner (Appeals)'s upholding the order of imposition of penalty is not correct.

Respondent’s Contention:-The Respondent defended the im­pugned order by reiterating the order of the Commissioner (Appeals). He also emphasized that the appellant were providing Business Auxiliary Services as defined under Section 65(19) of the Finance Act, 1994, which are taxable 'since July, 2003 and though they had obtained Service Tax Registration in May, 2007, they neither paid the service tax nor filed the returns for one full year and that when the Service Tax Registration had been taken by the appellant, they cannot plead ignorance of law.
 
Reasoning of Judgment:-The Tribunalhave carefully considered the submissions from both the sides and perused the records. The appellant's activities, as disclosed that providing services under Franchisee Agreement with M/s. TTSL in respect of post-paid connection and collection of amount for bills and providing customer care on behalf of M/s. TTSL. For providing these services to M/s. TTSL, the appellant were getting commission. The appellant had obtained Service Tax Registration as provider of Business Auxiliary Services in May, 2007. There is no dispute that after obtaining Registration in May, 2007, they neither paid the service tax nor filed Returns till this non-payment was detected in September, 2008, but imme­diately after pointing out of their tax liability, they paid the entire service tax dues as determined by the Department along with interest. The dispute in this case is only over the imposition of penalty. The appellant's plea is that being a small scale service provider, they were not aware of the provisions of law and also there were financial difficulties due to which they failed to dis­charge their service tax liability by the due date.
 
On going through the order-in-original as well as the order-in-­appeal, The Tribunal finds that though the services provided by the appellant have been treated as Business Auxiliary Services as defined under Section 65(19) read with Section 65(105) of the Finance Act, 1994, there is no discussion at all as to under which clause of Section 65(19) of the Finance Act, the services are covered. While the service of customer care would be covered under Clause (ii) of Section 65(19) of the Finance Act, the bill collection services for which they were getting com­mission is not covered under any of the Clauses of Section 65(19). There is no discussion in the orders as to how the services being provided by the appellant to TTSL in respect of their agreement with M/s. TTCL were covered by Section 65(19) of the Finance Act. Thus, it is doubtful as to whether the entire commis­sion received by the appellant was for the services covered under definition of Business Auxiliary Services as defined under Section 65(19) of the Finance Act 1994. Though the appellant have not disputed their service tax liability, in view of the above position, it would not be correct to impose penalty on them under Sections 76 and 78, as it is possible that the total turnover of their taxable ser­vices in respect of customer care may be within the exemption limit. Moreover from the circumstances of this case, Tribunal finds force in the appellant's plea that non­payment was due to their ignorance. In view of this, Tribunal is of the view that this is a fit case for invoking Section 80 of the Finance Act, 1994. The penalty imposed on the appellant is set aside.

Decision:-The appeal is allowed.
 
Comment:-On analysing the above case, it is observed that section 80 of the Finance Act is a good recourse to the assessee wherein penalty is waived if default is on account of reasonable cause. In this case also, bonafides of the assessee was seen as the tax along with interest was deposited before issuance of SCN.

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