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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

(kunal reshamwala) Posted On: 17 Sep, 2012

Whether there is no cenvat credit possible when the service provided is 'Renting of Immovable Property' Kindly clarify.

Under negative list, every such activity which falls in the definition of “service” as given in clause 44 of section 65B of the Finance Act are taxable unless otherwise exempted. The exemptions to certain services have been given in the negative list and also in notification no. 25/2012-ST DT 20.6.12. The following exemptions are related to renting of immovable property services as given in negative list and mega exemption notification:- Under Negative list:- •At clause no. (m) of section 44:- Renting of residential dwelling for use as residence. Under mega exemption notification:- •At entry no. 5:- Renting of precincts of a religious place meant for general public. • At entry no. 9:- Services provided to or by an educational institution in respect of education exempted from service tax, by way of,- (a) auxiliary educational services; or (b) renting of immovable property; • At entry no. 18:- Renting of hotels, inn, guest house, club, campsite or other commercial places meant for residential or lodging purpose, having declared tariff of a room below rupees one thousand per day or equivalent is exempt. Since the above referred services are totally exempted under service tax law, no Cenvat Credit is available if the service provider is SOLELY providing these services. However, concept of declared service has also been introduced in the negative list era where certain activities are declared to be a service for the purpose of levying the service tax. The list of declared services has been prescribed in section 66E which reads as follows:- “66E. The following shall constitute declared services, namely:- (a) renting of immovable property; (b) construction of a complex, building, civil structure or a part thereof, including a complex or building intended for sale to a buyer, wholly or partly, except where the entire consideration is received after issuance of completion certificate by the competent authority. Explanation.- For the purposes of this clause,- (I) the expression "competent authority" means the Government or any authority authorised to issue completion certificate under any law for the time being in force and in case of non-requirement of such certificate from such authority, from any of the following, namely:- (A) architect registered with the Council of Architecture constituted under the Architects Act, 1972; or (20 of 1972.) (B) chartered engineer registered with the Institution of Engineers (India); or (C) licensed surveyor of the respective local body of the city or town or village or development or planning authority; (II) the expression "construction" includes additions, alterations, replacements or remodelling of any existing civil structure; (c) temporary transfer or permitting the use or enjoyment of any intellectual property right; (d) development, design, programming, customisation, adaptation, upgradation, enhancement, implementation of information technology software; (e) agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act; (f) transfer of goods by way of hiring, leasing, licensing or in any such manner without transfer of right to use such goods; (g) activities in relation to delivery of goods on hire purchase or any system of payment by installments; (h) service portion in the execution of a works contract; (i) service portion in an activity wherein goods, being food or any other article of human consumption or any drink (whether or not intoxicating) is supplied in any manner as a part of the activity.” Thus, the list of services prescribed under “Declared services” includes the “Renting of immovable property services”. Thus, all the types of renting of immovable property services are taxable undoubtedly other than those prescribed under negative list and mega exemption notification as discussed above. Further, Notification no. 26/2012-ST dated 20.6.2012 prescribes the abatement of 40% in case of "6. Renting of hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes." Thus, the abatement of 40% is allowed in case of renting of hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes. Further, where the abatement is claimed for these services, the credit is not allowed on ‘Inputs’ and ‘Capital goods’. As such, where these services are provided; the credit of “Input services” is allowed alongwith abatement. In respect of all the other types of immovable properties (which are taxable beyond any doubt by virtue of section 66E); the service tax is payable to the full applicable rates. Further, no specific prohibition has been imposed regarding the allowability of Cenvat Credit on these services. As such, we are of opinion that the Cenvat Credit is allowed on all the other types of renting of immovable property services. However, if the various types of immovable property services are provided, some exempted and some taxable, provisions of rule 6 of Cenvat Credit Rules, 2004 will apply accordingly. Lastly, in context of service tax by way of positive list, circular no. 98/1/2008-ST dated 4.1.2008 was issued regarding Cenvat Credit on renting of immovable property service. The relevant portion of this circular is as follows:- Reference Code- 096.01 / 04.01.08 Issue:- Commercial or industrial construction service [section 65(105)(zzq)] or works contract service [section 65(105)(zzzza)] is used for construction of an immovable property. Renting of an immovable property is leviable to service tax [section 65(105)(zzzz)]. Whether or not, commercial or industrial construction service or works contract service used for construction of an immovable property, could be treated as input service for the output service namely renting of immovable property service under the CENVAT Credit Rules, 2004? Clarification:- Right to use immovable property is leviable to service tax under renting of immovable property service. Commercial or industrial construction service or works contract service is an input service for the output namely immovable property. Immovable property is neither subjected to central excise duty nor to service tax. Input credit of service tax can be taken only if the output is a ‘service’ liable to service tax or a ‘goods’ liable to excise duty. Since immovable property is neither ‘service’ or ‘goods’ as referred to above, input credit cannot be taken. Thus, in the above referred circular, it was clarified that the credit on input services is not available if the services provided by the assessee are renting of immovable property services. However, now the immovable property has been specifically declared as taxable service under section 66E. Further no specific restriction has been imposed regarding the availment of Cenvat Credit on these services in context of negative list. Thus, we can say that the above circular will not hold good now under negative list scenario. We hope the above will satisfy your query. Disclaimer: This opinion is given to best of knowledge and belief. The service tax is a complicated law and interpretations of the law keep on changing based on judicial discipline and Board’s clarifications. Our opinion is also subject to the same.
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