Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/Case Law/2014-15/2335

Whether the excess of Service Tax paid be adjusted with Future Payments?
 

Case:- B4U TELEVISION NETWORK (I) P. LTD. Versus COMMR. OF SERVICE TAX, MUMBAI

Citation:- 2014 (35) S.T.R. 88 (Tri. - Mumbai)

Brief fact:- The brief facts of the case are that the appellant paid Service Tax during the period 2001 and 2002 to the tune of 14,62,774/- of their own. However, they were required to pay Service Tax for the said period of only 4,76,933/-. In the result, they paid excess Service Tax of  9,85,841/-. The excess paid Service Tax has been adjusted by the appellant for the payments of Service Tax of service provided during the period October, 2002 to March, 2003. The Revenue is of the view that the excess Service Tax paid by the appellant for the earlier period can-not be adjusted for the future payments, therefore, letter dated 9-3-2004 was is-sued to them after scrutinizing the Service Tax returns wherein a query was raised that for the period ending March, 2003 they have short paid the Service Tax, therefore they are required to pay Service Tax short paid and the adjustment of past payments is not permissible.

The said letter was replied by the appellant that they are entitled to adjust the said payment under Rule 6(3) of the Service Tax Rules, 1994. Thereafter a show cause notice was issued demanding the Service Tax short paid by them and accordingly, the impugned order has been passed. Aggrieved from the same, the appellant is before me.

Appellant’s contention:- It is the contention of the appellant that it is not in dispute that they have paid excess Service Tax during the period 2001 to 2002 and the said amount has been adjusted by the appellant for the demands of Service Tax payable in the period October, 2002 to March, 2003 and the same has been intimated to the de-partment. As appellant has not collected any Service Tax from the clients for providing the service from 2001 to 2002, therefore they have complied with the provisions of        Rule 6(3) of the Service Tax Rules, 1994. Therefore, they are entitled to adjust the excess payment of Service Tax against the future Service Tax liability. To support this contention, they relied on the following decisions :

(1) Sentinel Security (P) Ltd. pool (134) E.L.T. 806 (T) = 2006
(2) S.T.R. 520 MI (2) Narnolia Securities P. Ltd. 12008 (10) S.T.R. 619 (T) I
(3) Nirma Architects & Valuers 12006 (1) S.T.R. 305 MI.
 

Respondent’s contention:-On the other hand, Id. AR strongly opposed the contention of the Id. counsel and submits that the case of the appellant is not covered by Rule 6(3) of the Service Tax Rules, 1944. If they have paid excess Service Tax in the earlier period, they could have filed the refund claim for the excess payments and both the lower authorities have rightly demanded from them the short payment of Service Tax in the impugned order.

 
 

Reasoning of judgment:-In this case, the assessment took place for the period 2001 - 2002 and it was held by the Adjudicating Authority that the appellant has paid excess amount of Service Tax of 9,85,841/- on 11-5-2003. The appellant has adjusted the said amount of excess payment of Service Tax for the period October, 2002 to March, 2003 for the Service Tax liability. The appellant has not collected the ex-cess Service Tax from their clients for the period 2001 to 2002. These facts are not in dispute. In the light of these facts, The Honourable Judge had examined the provisions of Rule 6(3) of the Service Tax Rules, 1994 are applicable to the facts of the case or not. The provisions of Rule 6(3) of the Service Tax Rules, 1994 are reproduced hereunder :-

"(3) Where an assessee has paid to the credit of Central Government Service Tax in respect of a taxable service, which is not so provided by him either wholly or partially for any reason, the assessee may adjust the excess Service Tax so paid by him (calculated on a pro rata basis) against his Service Tax liability for the subsequent period, if the assessee has refunded the value of taxable service and the Service Tax thereon to the person from whom it was received."

A plain reading of the said provisions shows that if the assessee has paid Service Tax during the particular period for which they have not provided the service to the client and the said Service Tax paid to the department has been either refunded to the client or not collected, in that situation, the excess payment of Service Tax can be adjusted for future payments.

With these observations, the contention of the Id. AR that if they have paid excess Service Tax for the earlier period, they have to file refund claim is not acceptable in the light of the judgment in the case of Nirma Architects & Valuers (supra), wherein this Tribunal held that if adjustment of excess Service Tax is not allowed for future payments, the provisions of Rule 6(3) ibid shall become otiose and non-implementable. As the fact that excess payment is not in dispute and same has been adjusted for the future liability of Service Tax by the appellant, therefore, to pay Service Tax is only an exercise which created hurdle in the smooth functioning of imposition and collection, as held by the Tribunal. Therefore, the adjustment can be allowed.

In these circumstances, The Honourable Judge allowed the adjustment of excess Service Tax paid by the appellant during the period 2001 to 2002 for the Service Tax liability to October, 2002 to March, 2003. In the light of these observations, the matter is remanded back to the Adjudicating Authority to make the adjustment of the demand for the period October, 2002 to March, 2003 with the excess payments for the period 2001.02 and pass appropriate order of assessment in accordance with law.

 

Decision:- Appeal allowed

 

Comment:-

Thecrux of the case is that the assessee has paid Service Tax during the particular period for which they have not provided the service to the client and the said Service Tax paid to the department has been either refunded to the client or not collected. In that situation, the excess payment of Service Tax can be adjusted for future payments.
 

Prepared by :-Meet Jain

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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