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Corporate News *  Delhi High Court - Issue of fake ITC - Court declined to entertain the writ petition against the GST demand, directing the petitioner to pursue the statutory appellate remedy *  Patna High Court - Availability of an effective statutory remedy is a strong ground for High Court to decline interference in writ proceedings, unless exceptional circumstances are established. *  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. 
Subject News *  Delhi High Court - An Advocate cannot claim client privilege as an absolute bar to a GST investigation where there is prima facie material suggesting his own involvement in the affairs under investigation. *  Madras High Court - SEZ unit is eligible to claim refund of unutilised ITC; such entitlement cannot be restricted merely because Rule 89 specifically refers to a supplier to an SEZ. *  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.  

Comments

(MANISH THAKKAR) Posted On: 10 Aug, 2012

Vide Noti No. 45/2012 dtd 07.08.2012 , now company is liable to pay service tax under reverse charge on services received from Directors of the company. Your Expert views are solicited to enlighten us that which services provided by directors are taxable to the company? Type of services for consideration 1. Amount paid as Remuneration to directors 2. Amount paid as commission / incentive to directors which is a part of total remuneration 3. Amount paid as commission / incentive to directors which is not a part of total remuneration 4. Amount paid on behalf of directors in kind like their personal insurance prem, vehicle prem, medical prem other perquisites 5. Other considerations paid Further, please confirm that can the company avail cenvat credit of service tax paid on aforesaid service for payment of service tax?

1.Applicability of service tax on Directors Section 66(b) defines “Service” as follows “Service means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include- (a) An activity which constitutes merely, (i) A transfer of title in goods or immovable property, by way of sale, gift or in any other manner; or (ii) Such transfer, delivery or supply of any goods which is deemed to be sale with the meaning of clause 29(A) of article 366 of the Constitution; or (iii) A transaction in money or actionable claim; (b) a provision of service by an employee to the employer in the course of or in relation to his employment; (c) fees taken in any Court or tribunal established under any law for the time being in force.” Accordingly the services performed by a director (other than a provision of service by an employee to the employer in the course of or in relation to his employment) of a company fall within the ambit of taxable services with effect from 1st July, 2012. It means service tax would be applicable on Services provided by Independent/Non-Executive Directors of the Company (NEDs) because Managing Director/Executive Director/Whole time Director is the employee of company. But if any amount paid to Managing Director/Executive Director/Whole time Director which is not covered under “a provision of service by an employee to the employer in the course of or in relation to his employment” will be taxable. Therefore for in case of independent directors service tax will be applicable and for Managing Directors/Executive Directors, service tax may be applicable if amount paid other than “in the course of employment”. Managing Director/Executive Director/Whole time Director: 1. Amount paid as Remuneration to directors (excluding those amount which is not in course of employment):- will not be taxable. 2. Amount paid as commission / incentive to directors(whether included in remuneration or not):- Since it is amount not covered under the above mentioned exclusion (i.e. not covered under “during the course of employment) will be taxable. 3. Other consideration:- Taxable if not treated as charges during the course of employment. So the taxability will be dependent on whether there is “a provision of service by an employee to the employer in the course of or in relation to his employment” or not. 2.Input credit of service tax on service provided by directors Rule 2(l) defines “input service” and according to this company can take the credit of service tax paid on services provided by directors but input service excludes “services used primarily for personal use or consumption of any employee”. So service tax on director’s personal expenditure (paid by company) e.g. insurance premium, vehicle premium, medical premium etc. will not be eligible for credit.
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Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
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Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
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Phone No. :
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Mobile No. :
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E-mail :pradeep@capradeepjain.com