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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.  

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PJ/Case Law/2018-2019/3523

Whether ITC would be available in respect of GST paid for hotel stay in case of rent free accommodation provided to MD and GM?.......
Case:M/s Posco India Pune Processing Centre Private Limited
Citation:AAR no. GST-ARA-3/2018-19/B-110 dated 07.09.2018
Issue:
  • Whether ITC would be available in respect of GST paid for hotel stay in case of rent free accommodation provided to MD and GM?
  • Whether invoice for quality claim raised by the Company on POSCO Daewoo Corporation located in Korea will be treated as ‘export of service’?
  • Whether recovery of 50% of the Parents Health Insurance expenses from employee in respect of insurance provided by the Company amounts to ‘supply of service'?
 
Brief facts:
M/s. POSCO-India Pune Processing Center Private Limited (‘the Company’) is South Korea based company located at Talegaon, MIDC, Pune. The Company is primarily engaged in distribution of steel coils. The POSCO Group Company from overseas has deputed a Managing Director (‘MD’) and General Manager (‘GM’) in India for looking after the business in India. In the present case, both the above key personnel have relocated to India without family. Therefore, as per the terms of deputation, instead of making payment in cash, the MD and the GM are provided with perquisite in the nature of rent-free accommodation. The MD and the GM are provided accommodation in a hotel and the cost of the same is borne by the Applicant. It is included as perquisites in the salary as per the provisions of Income Tax Act, 1961.
The Company had imported goods from POSCO Daewoo Corporation, Korea and availed ITC of IGST on the same. Subsequently, the Company sold the goods to its customer under the cover of tax invoice on payment of applicable GST. Subsequent to the sale, it was observed that the goods were defective and therefore the Company raised a credit note to its customer and the customer raised a debit note.  As per the terms of the contract between POSCO Daewoo and the Company, the Company was required to charge back the loss incurred because of quality issue. Accordingly, the Company raised a tax invoice against which it received payment in foreign currency.
It was submitted by the Company that it is in their practice to provide mediclaim cover to the employees as well as their parents. Initially, the Company pays the entire premium along with taxes and then recovers 50% of the premium from the employees on a monthly basis.
 
Reasoning of Judgment:The AAR has observed that the rent free accommodation provided to the MD and GM was for their personal comforts. Therefore no ITC can be allowed in respect of hotel stay / loading – boarding / accommodation service provided to MD and GM of the Company in accordance with the provisions of section 17(5)(g) of the CGST Act, 2017 which restricts credit of expenses used for personal consumption.
The AAR has observed that the Company has not provided entire details in respect of the transaction. It was submitted by the Company that post the importation of goods, Input Tax credit of IGST was availed and then the goods were sold to its customer, which were found to be defective. Accordingly, credit notes and debit notes were exchanged between the Company and its customer. It has not been stated by the Company as to what is the status of the defective goods or the credit availed on IGST. As long as the goods are with the customer, it is them who are tolerating the act and not the Company. In light of such unanswered questions, it was noted by the Authority that complete details regarding the transaction have not been submitted and therefore they have refrained from answering to this question.
In regards to recovery of 50% of insurance premium from its employees, the AAR had observed that the Company is creating fiction of providing health insurance to their employees only to avail 100% ITC of payment made to the insurance company. The AAR has ruled that the recovery of such insurance premium from the employees cannot be treated as supply and consequently, the Company would not be eligible for ITC paid on such expenses to the insurance company.
 
Comment:  There were the two contradicting rulings given by two different State AARs on the same issue of – “employer providing services to employees and whether the amount recovered for the same shall be treated as a supply” within the time span of March and September 2018.
In both the cases i.e. Caltech Polymers Pvt Ltd (ORDER No.CT/531118-C3 DATED 26/03/2018) and the discussed case, we hope that Revenue generation may be considered and ruling is given based on the same. It is said so because in the first case, recovery of food expenses from the employees for the canteen services provided by company would come under the definition of ‘outward supply‘  as defined in Section 2(83) and therefore taxable as supply of service. And in the second case recovery of Parents health insurance expenses from employees does not amount to “supply of service” under the GST laws and the applicant cannot avail ITC on GST charged by insurance company.
Moreover, it is been clearly evident from the facts that MD and GM have been provided with the rent free accomdation since they relocated in India, and they should be treated as part of perquisites and therefore, ITC should be admissible.
Prepared by:  Adit Gupta
 
 
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