Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  The GSTN has issued an Advisory dated 21.04.2026 about the introduction of an Offline Tool for the Invoice Management System (IMS)  *  CBIC extends due dates for filing of FORM GSTR 3B  for the month of April 2026 *  Interest cannot be imposed in adjudication order, if not demanded/quantified in show cause notice : Allahabad HC *  Wheelchairs with toileting facility eligible for exemption: CESTAT affirms customs duty exemption to importer *  Industries urge GST council to allow inverted duty refunds on input services *  Tamil Nadu GST dept introduced virtual hearing facility for GST appeals under under section 107 of the TNGST act: detailed guidelines  *  CIC urges authorities to implement GST evasion complaint tracking system *  Even if the assessee opts "NO" for personal hearing in form DRC-06 ,The mandatory requirement under section 75(4) to grant opportunity of hearing cannot be waived:Gujarat High Court  *  Glufosinate imports curbs imposed by govt *  Government extends Re-import period for exported cut & polished diamonds *  CIC flags lack of tracking system for tax evasion complaints,urges GST authorities to improve transparency *  No Custodial Interrogation needed in GST fraud case based on documentary evidence already in Department's Possession : Chattisgarh HC *  Orders under section cannot be sustained if passed without considering the taxpayer's objections and without granting a personal hearing:Gujarat High Court *  Mere cancellation of supplier's registration cannot,by itself,justify denial of ITC or cancellation of the recipient's registration:Bombay High Court *  High Court sets aside GST notice citing factual errors and natural justice violations *  Provisional Bank Attachment under Section. 110 of Customs Act Unsustainable Beyond Statutory period without Extension order: Bombay HC orders to defreeze accounts *  Post Clearance MRP Alteration by Distributor Does not attract Differential Customs Duty: CESTAT *  DGFT Expands scope of 'Screws' classification under RoDTEP Scheme  *  E-way bills surze to all time high of 140.6 million in March *  GST Exemption Allowed on Pure Labour Services for Standalone Houses: AAR  *  GST Payable Only on Margin in Second-Hand Car Sales, Subject to Strict Conditions and No ITC Claim: AAR *  DGFT rolls out procedure for allocation of calcined coke *  GST portal update : Pre-deposit amount now editable in Appeals *  J&K HC declared TMT scrap a 'Specified Good' eligibile for GST refunds under Support Scheme  *  Pigmy agents are employees of banks; no GST can be levied on commission  paid to them : Karnataka HC *  DGFT Revises HS Code Description for Screws Under RoDTEP *  GST Registration Cancellation Invalid Without Proper Service of Notice: Allahabad High Court. *  Bengaluru CGST | GST Backlog Appeals Deadline Fixed at June 30, 2026 *  No Time Bar on Refund of Service Tax for Services Not Rendered: CESTAT  Remands Indiabulls Case for Unjust Enrichment Check. *  Supreme Court Holds Renewable Energy Incentive Must Benefit Generators, Not Be Adjusted in Tariff
Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1130

Whether service tax need to be paid on Commission received by dealers of motor vehicles from finance companies?

Case:- COMMISSIONER OF C.EX. , JAIPUR VERSUS AJMER AUTOMOBILES (P) LTD

Citation: - 2012 (26) S.T.R 19 (Tri- Del)

Issue: Whether service tax need to be paid on Commission received by dealers of motor vehicles from finance companies?
 
Brief fact: - TheAppeals is against  Joint Commissioner Order No. 09/ST/JP-11/2005. The Commissioner (Appeal) by his order dated 31-03-2006 set aside the order of Joint Commissioner. 
 Aggrieved by this order the revenue has filled Appeal No. 262/2006 before the Tribunal. In the meanwhile Commissioner issued a SCN dated 30-07-2007 for review of the order dated 25-11-2005 of the Joint Commissioner. This SCN was decided by order dated 25-11-2005 of the Joint Commissioner. This SCN was decided by Order dated 23-10-2007.
Aggrieved by this Order M/s Ajmer Automobiles have filed Appeal no. ST. 46/2008-SM.

When the SCN dated 30-07-2007 was issued the Order-In- Original dated 25-11-2005 was already set aside by order dated 31-03-2006. So the review of order was not sustainable & the Order-in-Original dated 23-10-2007 issued by Commissioner is not maintainable. However, the same matter is subject matter of Appeal NO. 262/2006 filed by the Department which is maintainable.

Now the Appeal filled by the department against the order of Commissioner (Appeal) is to be decided.

Appellant Contention:- The Ld DR assails the finding of the Commissioner (Appeals) that  there was no evidence of receipt of any commission by the respondent from finance companies. He relies on the entries in the books of accounts of the Respondent.  The Ld DR replied arguing that a wrong section mentioned in the SCN cannot be fatal to the proceedings so long as there is a provision available in the statute book on the date of issue of SCN which would sustain the SCN if the facts relevant for understanding the offence and the nature of offence are stated in the SCN though with an error in section number. He relies on the following case law in the matter :-(1) C.C.E. v. Pradyumna Steel Ltd. - 1996 (82) E.L.T. 441 (S.C.). (2) C.C.E. v. Lanjekar Sales Corporation - 2007 (210) E.L.T. 79 (Tribunal) = 2007 (5) S.T.R. 272 (Tribunal). (3) LVR & Dong-In Stone Ltd. v. CC. 1994 (72) E.L.T. 377.
He also argues that  suppression of information by the respondent inasmuch as the companies were never disclosed in ST-3 return. Making records available during the course of audit is not a sufficient ground to exonerate the respondent from the charge of suppression.  He further submits that para 2 of the Show Cause Notice gives the details of suppression and the words "suppressed" and "evaded the payment of service tax." are used many times and the argument of the Appellant that there was no allegation in the Show Cause Notice regarding suppression is not correct.
Respondent contention:- The main  contention of  respondent are :-
(i) Section 73(1) (a) of the Finance Act, 1944 was substituted w.e.f. 10-9- 2004 and therefore the SCN issued on 10-8-2005 invoking, this provision  is not maintainable (ii) Under the revised provision 73(1) in force on the date of issue of SCN, it is necessary to prove suppression of information to invoke  extended period of time. No suppression of information is involved because the entire record was produced to the audit party and replies to queries raised by the Audit party were given promptly.
 
Reasoning of Judgment:  This wrong mention of the section is not fatal to the Show Cause Notice so long as the ingredients of the new provision under Section 73(1) are satisfied
 
The new section requires that Notice can be issued invoking the extended period only if there was suppression of information. In this case the in-formation regarding commission received and also about payments received from the manufacturer was not disclosed in the service tax returns. This cannot considered as suppression with intent to evade tax, because the Assessee had a bona fide belief that they were not liable to pay tax on the amount received by them out of commission received by Maruti Udyog Ltd. on which Maruti Udyog Ltd. had paid Service tax. So this is not a fit case to invoke the extended period alleging suppression. So the Appeal fails on account of time bar and also on merits.
 
Decision: -Appeal disposed off.

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