Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
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.  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1238

willful suppression of facts can be alleged-department audit team has made audit of the assessee
Case:M/s Marikar Motors Ltd. versus Commissioner of Central Excise, Thiruvananthapuram

Citation:2011-TIOL-823-CESTAT-BANG

Issue:
(a)Whether willful suppression of facts can be alleged when department audit team has made audit of the assessee?
(b) Whether services of renting of immovable property service, authorized service station service and maintenance and repair service can be classified as ‘Business Auxiliary Service’ for the dealer of engaged in trading of vehicles manufactured by various different manufacturer?

Brief Facts: The appellant is an authorized service station and a dealer in vehicles manufactured by M/s Hindustan Motors Ltd, M/s Eicher Ltd, M/s Premier Automobiles Ltd. and M/s Honda Motorcycle & Scooters India Pvt. Ltd. The appellant was found to have engaged in rendering services classifiable under 'Business Auxiliary Services', renting of immovable property services, authorized service station services and maintenance & repair services.
In impugned order, the Commissioner held that the appellant provided services of authorized service station in relation to motor cars and bikes sold by it as a dealer and rendered free service for which it was compensated by the automobile manufacturers. The appellant received commission from the manufacturers of motor vehicles and bikes for promoting their sales by undertaking customer care. It received commission for promoting their respective business of sale of insurance and grant of vehicle loans. The assessee undertook promotion of insurance business. The Commissioner rejected the assessee's arguments during adjudication that incentives received by it from automobile manufacturers based on volume of its purchase was in the nature of discount and not commission taxable as business auxiliary service (BAS). The Commissioner found that under self assessment; the department relied solely on ST-3 returns filed by the assessee for the nature of services rendered and the tax liability of the assessee. As the ST-3 returns had not reflected receipts relatable to the impugned service rendered by the assessee, it was guilty of suppression of facts thereby attracting proviso to Section 73 (1) of the Act enabling invocation of larger period.

Appellant’s Contention: The assessee submitted that all the relevant records pertaining to its activities had been scrutinized by the Internal Audit party of the department. The impugned demand has been raised on the basis of the same records which had been scrutinized by the Internal Audit party.
It is also submitted that the impugned demand pursuant to Show Cause Notice was barred by limitation as there was no willful mis-statement or suppression on the part of the assessee. The records were studied in detail during the audit conducted by the internal audit party of the department.
Appellant relied upon Popular Vehicles & Services Ltd. Vs. CCE, Kochi [2010 (18) S.T.R. 493 (Tri.-Bang.)]
Appellant relied on the following cases in support of the plea that no BAS was involved in recommending particular Insurance Company or Bank / Finance Company to the buyers of the vehicles sold for obtaining respectively Insurance Policy and loans.
It was submitted that considerable confusion prevailed on the liability to tax on the value relatable to free service rendered to buyers of vehicles by the dealers till 6.11.2006 when vide Circular No. 87/05/2006-S.T. dated 6.11.2006, CBEC clarified that free servicing was an activity liable to service tax.
As regards the rendering of immovable property service found to have been rendered by them, appellant relies on the following judgments:
-      Infiniti Retail Ltd. Vs. Union of India [2010 (19) S.T.R. 801 (Bom.)]
-      Home Solutions Retail Ltd. Vs. Union of India [2011 (21) S.T.R. 109 ( Del. )]
-      Maverick Ventrues Vs. Union of India [2010 (20) S.T.R. 757 (Kar.)]
It is submitted that vide judgment of the Delhi High Court in Home Solutions Retail Ltd. case (supra) their lordships had held that renting of immovable property as such was not liable to service tax.

Respondent’s Contention: Respondent opposed the stay application and submits that ST-3 returns filed by the appellants did not reflect the impugned activity and the proceeds realized. Therefore the Commissioner had rightly invoked extended period to confirm the demands.
Respondent submits that the appellants should be put to strict terms.

Reasoning of Judgment:-The Tribunal finds considerable force in the submission by the learned Counsel for the appellants that there was no suppression on its part. Since all the financial records relating to the activities in question had been subjected to scrutiny by the Internal Audit party of the department, there were no additional material based on which show cause notice was issued and adjudication proceedings concluded.
The Tribunal also finds substance in the claim that prima facie extended period could not have been validly invoked in the instant case as regards the demand of tax relatable to free service, the promotion of insurance business and financing as well as renting of immovable property.
CBEC clarified the liability of the service station to service tax under the head "authorized service station" in respect of free service only in November 2006 to clear the confusion over the issue. As regards BAS involved in promoting business of the Insurance Company and the Banks/Finance Company, the Tribunal in Popular Vehicles and Services Ltd. case (supra) had decided the dispute in favour of the assessee.
As regards renting of immovable property, the authorities cited by the appellant justify its holding bonafide belief that renting of immovable property did not attract service tax.
The Tribunal finds that the assessee has made out a strong prima facie case against the demands on the ground of limitation. Considering the totality of the case, the Tribunal allows this application for waiver of pre-deposit and stay of recovery of the dues adjudged pending decision in the appeal.

Decision: Appeal was Allowed.

Comment:- This is very good decision on the point of limitation. Normally the audit party raised the point on the basis of records and then invokes extended period. But this decision clearly say that the extended period cannot be invoked. But there is amendment on this score in this budget. They say that extended period can be invoked when the transaction is recorded in books of accounts. Hence, this amendment will have far reaching effect.

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