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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 LAW/2015-16/2874

Whether penalty can be imposed when tax along with interest paid before issuance of SCN?

Case:- FORTUNE NETWORK PVT. LTD. VERSUS COMMR. OF C. EX., CUS. & S.T., VADODARA-II
 
Citation:- 2015 (39) S.T.R. 689 (Tri. - Ahmd.)
 
Brief facts:- This appeal has been filed by the appellant with respect to OIA No. PJ/619/EDR-11/2012-13, dated 26-3-2013. The issue involved in the present proceedings is whether the penalties under Sections 76 and 78 of the Finance Act, 1994 are imposable upon the appellants when the entire amount of Service Tax leviable have been paid by the appellant along with interest, before the issue of show cause notice. First Appellate Authority held the penalties imposed upon the appellant appropriate because tax amounts were recovered from the customers.
 
Appellant’s contention:- Shri Dhaval Shah, learned Advocate, appearing on behalf of the appellant argued that the period of dispute is from 1-4-2006 to 31-3-2007. That as a result of visit made by the officers on 13-3-2007 to the premises of the appellant the proceedings started. It was his case that there was delay in filing the first return for the period 1-4-2006 to 13-3-2007. Subsequently, the returns were filed by the appellant in time. It was his case that Service Tax liability was correctly calculated by the appellant and the amount available in the Cenvat credit account was promptly debited at the end of the month for which Service Tax was payable. That due to financial difficulty there was delay in payment of first return of the Service Tax and the same was paid on 14-3-2007, 23-3-2007 and 29-3-2007 which was before the issue of show cause notice dated 9-2-2011.
 
Respondent’s contention:- Shri J. Nair, Authorised Representative appearing on behalf of Revenue argued that the appellant only started filing returns after the case was booked by the officers of the Revenue. That once the amounts were collected and not paid within the date will amount to suppression with intention to evade payment of Service Tax. The Authorised Representative, therefore, defended the orders passed by the lower authorities.
 
Reasoning of judgment:-It is observed from the case records that the appellant was registered with the Revenue and was paying the Service Tax. It is the case of appellant that during the relevant period there was financial difficulties therefore, the appellant could not pay the entire Service Tax within the prescribed time. It is also observed that except for the first periodical return the appellant was showing the correct Service Tax liability in the returns and that amount available in the Cenvat credit account was debited by the appellant after the end of each month. Once the correct duty amount is shown in the returns there cannot be any intention to evade payment of Service Tax which is also paid by the appellant before the issue of show cause notice along with interest. In view of the above, there was reasonable cause for the appellant for not paying the entire Service Tax which was truly reflected in the periodical returns filed by the appellant. Under the Finance Act, 1994, there are provisions for late payment of Service Tax along with interest which was done by the appellant before the issue of show cause notice. Accordingly, the case was also covered by Section 73(3) of the Finance Act, 1994 and there was no need to issue show cause notice in this case. Appellant is also eligible for the benefit of Section 80 of the Finance Act, 1994.
In view of the above observations, appeal filed by the appellant is allowed.
 
Decision:-Appeal allowed
 
Comment:-The analogy of the case is that penalty is not imposable when the Service Tax payable has been shown in returns but service tax amount was not paid in time due to financial crunch. As the Service tax has been paid in full with interest before issue of show cause notice, there is no intention to evade Service Tax. Accordingly, the benefit of section 73(3) of the Finance Act was extended and penalty was dropped.  

Prepared by:- Monika Tak 

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