Case Details: Johnson Bevisedmond v. Joint Commissioner of GST & Central Excise - [2024] 161 taxmann.com 632 (Madras)

Judiciary and Counsel Details

• • Krishnan Ramasamy, J.
  • G. Derrick Sam for the Petitioner.
  • K. Mohanamurali, Sr. Standing counsel for the Respondent.

Facts of the Case

The petitioner is an individual and he received notice from the GST department for personal hearing. He was not able to appear for the aforesaid personal hearing. Thereafter, the department passed the order. He filed writ petition and contended that only two opportunities were provided to him and the impugned order has been passed by the department in violation of principles of natural justice.

High Court Held

The Honorable High Court noted that petitioner was provided two opportunities of personal hearings but he couldn’t attend hearing as his residence was shifted. Now, the petitioner was intended to file the appeal and it would be appropriate to grant liberty to the petitioner to approach the Appellate Authority. Therefore, the Court granted liberty to the petitioner to approach the Appellate Authority by filing the appeal within a period of 30 days from the date of receipt of copy of this order.

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Input Tax Credit (ITC) refers to the credit a business can claim for the taxes paid on its purchases, which can be used to offset the tax liability on its sales. Essentially, it allows a business to reduce the taxes it has to pay on its output (sales) by the amount of tax it has already paid on its inputs (purchases). This mechanism is designed to avoid the cascading effect of taxes, where the final consumer does not end up paying tax on tax. ITC is a fundamental feature in Goods and Services Tax (GST) and is critical for ensuring that only the value addition at each stage is taxed, thereby making the taxation process more efficient and less burdensome.

By Kamal Aggarwal – Chartered Accountant

Table of Contents

1. Introduction to Input Tax Credit (ITC)
2. Conditions & Eligibility for ITC
3. Onus to Prove Eligibility
4. Genuineness of the Transaction
5. Department Clarifications
6. Supplier Doesn’t Pay the Taxes – Legal Position
7. Registration Certificate is Cancelled
8. Non-existent Supplier

1. Introduction to Input Tax Credit (ITC)

• A registered person is eligible to take,
• ITC on supply of goods or services,
• which are used or intended to be used in the course or furtherance of business,
• subject to conditions and restrictions prescribed under the CGST Act.
• Except for certain goods or services specified in Section 17 of the CGST Act, ITC is generally available to the registered person on all goods and services.

2. Conditions & Eligibility for ITC – Section 16

• Possession of tax invoice or debit note;
• Details of such invoice/debit note has been furnished in GSTR 1 by the supplier and reflected in GSTR 2B of the recipient;
• Goods or services have been received;
• ITC is not restricted as per auto-generated statement in Form GSTR 2B;
• Tax charged by supplier has actually been paid to Government; and
• Recipient has furnished GSTR 3B

3. Onus to Prove Eligibility

• Section 155 of the CGST Act provides that

“Where any person claims that he is eligible for input tax credit under this Act, the burden of proving such claim shall lie on such person.”

• The recipient is availing ITC & hence is liable to prove the genuineness of the transaction
• The Hon’ble Supreme Court has, in State Of Karnataka v. Ecom Gill Coffee Trading (P) Ltd. [2023] 148 taxmann.com 352 (SC), examined a similar provision under the Karnataka VAT Act and held as follows:

“The dealer claiming ITC has to prove beyond doubt the actual transaction which can be proved by furnishing the name and address of the selling dealer, details of the vehicle which has delivered the goods, payment of freight charges, acknowledgement of taking delivery of goods, tax invoice and payment particular etc. The aforesaid information would be in addition to tax invoice, particular of payment etc. In fact, if a dealer claims Input Tax Credit on purchases, such dealer/purchaser shall have to prove and establish the actual physical movement of goods, genuineness of transaction by furnishing the details referred above and mere production of tax invoices would not be sufficient to claim ITC.”

• In the matter of Shiv Trading v. State of UP [2023] 156 taxmann.com 715 (All), the Hon’ble High Court of Allahabad, held as follows:

“the petitioner failed to discharge its onus to prove and establish beyond doubt the actual transaction, actual physical movement of goods as well as the genuineness of the transactions and as such, the proceedings have rightly been initiated against the petitioner under section 74 of the GST Act. ”

• The recipient produced tax-invoice, e-way bill, weighment receipt, bilty etc, but since the supplier was found non-existent, movement was held as doubtful
• This decision has been affirmed by the hon’ble Supreme Court
• In the matter of Malik Traders v. State of UP [2023] 155 taxmann.com 517 (All), the Hon’ble High Court of Allahabad, held as follows:

“…………………….. onus is to be discharged by the petitioner to prove and establish beyond doubt the actual transaction and physical movement of goods. But in the case in hand, the petitioner has failed to prove and establish actual physical movement of goods and genuineness of transaction as such the proceedings has rightly been initiated.”

• Here also, the petitioner produced invoices, payment made through banking channel, bilties etc.
• The above decisions have categorically held that Onus to prove genuineness of the transaction is on the recipient of goods or services
• What is meant by genuineness of the transaction?

4. Genuineness of the Transaction

• The hon’ble Supreme Court and High Courts have held that genuineness of transaction to be proved by following, in addition to invoices & payment proof:

1. 1. Name of address of selling dealer
   2. Actual movement of goods
   3. Details of vehicle by which goods have been received
   4. Payment of freight charges on such goods
   5. Acknowledgment of delivery of such goods

• The above list is not exhaustive, and more evidence may be required on case to case basis
• The Government says that a recipient should be able to trace the supplier and also hold him responsible for payment of GST
• The issue arises where a recipient had only few transactions with a particular supplier and only those transactions are in question
• Or transactions have executed through a broker and neither the broker nor the supplier is reachable
• In case of a regular supplier, generally the recipient should be able to comply with these requirements
• What happens if

1. 1. Supplier hasn’t deposited GST, even after follow up by the recipient
   2. His registration certificate is cancelled or non-existent taxable person

5. Department Clarifications

• Press release dated 04th May 2018, provides that in cases of default in payment of tax by supplier, recovery shall be made first from the supplier & recovery from recipient would be under exceptional circumstances
• Circular 183 dated 27th December 2022, provides that in cases of default in payment of tax by supplier, certificate can be produced from a chartered accountant certifying that supplier has paid taxes in GSTR 3B
• The new circular shows change in Government stand. Government wants taxpayers to handle non payment of GST commercially and not legally

6. Supplier Doesn’t Pay the Taxes – Legal Position

• The statutory condition of Section 16(2)(c) stands violated
• Read with Section 155, Revenue can seek to deny the credit
• Constitutional validity of Section 16(2)(c) has been challenged in several high courts and a final judicial decision is awaited
• In the VAT regime, several high courts, including hon’ble Delhi High Court in the case of Arise India Ltd. and On Quest Merchandising India (P.) Ltd. v. Government of NCT of Delhi, [2017] 87 taxmann.com 179 (Delhi) held that

1. 1. Denial of input tax credit to bona fide purchasers for nonpayment of tax by the selling dealers is not justified
   2. Equating bona fide purchasers with those with hand in glove with fraudulent sellers is violative of Article 14 of the Constitution

• The hon’ble Madras High Court in D Y Beathel Enterprises also given the same verdict

7. Registration Certificate is Cancelled

• The Hon’ble Supreme Court, in the case of State of Maharashtra v. Suresh Trading Company, [1998] taxmann.com 1747 (SC), has held,

“purchasing dealer is entitled by law to rely upon the certificate of registration of selling dealer…..”

• When the certificate of registration was valid during the period of transaction, the purchasing dealer is entitled to rely upon the same

8. Non-existent Supplier

• The Hon’ble Orissa High Court has, in the case of Santosh Kumar and Co, 54 STC 322 addressed this issue

“Government should take appropriate action against fictitious dealers, as registration cannon be granted to a non-existent person. Officers under collusion with these fictitious dealers, who has failed to perform due diligence must be put under enquiry.”

“We must bring to the notice of the State that registration of dealers is indeed a serious matter and its officers authorised to grant registration should be very careful. Once a certificate of registration is issued to a person and he becomes a registered dealer, he is entitled to certain benefits under the Act. Certificates granted by the public officers have their value and people in the commercial field would in normal course accept such certificates to be genuine. The fact that registration has been granted, yet the person holding the certificate is a fictitious one seem to be contradictions in term. A certificate of registration can be granted only when the dealer, apart from being a businessman, satisfies the other requirements prescribed by law. A registration certificate cannot be granted to a non-existent person. The fact that there have been some persons who are labelled by the department as fictitious dealers goes to show that the officers under the Act either collude with dishonest people in the field or fail to exercise due diligence and allow fraud to be practised in the commercial field. Whether it is collusion or negligence, these officers bring disrepute to the State and introduce uncertainty and lack of confidence into a true field of trust. It is high time that the State Government institutes appropriate enquiries, take such steps as are necessary to eliminate fictitious dealers from the field and also take strong action against persons connected with such matters so that there be no recurrence of it in future.”

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Case Details: Sincon Infrastructure (P.) Ltd. v. Union of India - [2024] 161 taxmann.com 616 (Patna)

Judiciary and Counsel Details

• • K. Vinod Chandran, CJ. & Harish Kumar, J.
  • Gautam Kumar Kejriwal, Atal Bihari Pandey, Alok Kumar Jha, Mukund Kumar, Akash Kumar, Aditya Raman & Ranjeet Kumar, Advs. for the Petitioner.
  • Dr Krishna Nandan Singh, ASG, Anshuman Singh, Sr. SC, CGST and CX, Devansh Shankar Singh, JC to ASG & Shivaditya Dhari Sinha, JC to ASG for the Respondent.

Facts of the Case

The petitioner received a notice for the recovery of interest on the belated payment of tax. The interest was charged for the tax paid from the Electronic Credit Ledger (ECL) for the financial year 2018-19 and order was passed. Aggrieved by the order, the petitioner filed a writ petition to the High Court of Patna.

High Court Held

The High Court noted that the payment of tax and furnishing of return have to occur simultaneously. The Court further noted that the input tax credit and the resultant payment of tax from the Electronic Credit Ledger occurs only when a return is furnished. If there is a delay in furnishing of returns then obviously there is a delay in the input tax credit coming into the Electronic Credit Ledger and a resultant payment being made to the Government as tax, interest, penalty or other amounts due under the Act.

Therefore, the claim of the petitioner that the proviso of Section 50(1) mandates a levy of interest only when there is a delayed furnishing of return and debit made and payment effected from the Electronic Cash Ledger was rejected. The Court also held that interest shall be payable on the delay occasioned in the payment of tax and as per section 50(1) interest liability would arise automatically on delayed filing of returns, irrespective of whether payment is made from Electronic Credit Ledger or Electronic Cash Ledger.

List of Cases Reviewed

• • Refex Industries Ltd. v. Assistant Commissioner of CGST & Central Excise in W.P. Nos. 23360 and 23361 of 2019 (Para 28) followed.

The post Interest Liability Arises Automatically on Delayed Filing of Returns Even if Payment Made From Credit Ledger | Patna HC appeared first on Taxmann Blog.

Case Details: APL Apollo Tubes Ltd. v. State Tax Officer (Intelligence) - [2024] 161 taxmann.com 613 (Madras)

Judiciary and Counsel Details

• • Senthilkumar Ramamoorthy, J.
  • G. Natarajan for the Petitioner.
  • C. Harsha Raj, AGP (T.) for the Respondent.

Facts of the Case

The petitioner is engaged in the manufacture and supply of tubes and pipes of iron and steel. The department issued SCN and the petitioner replied to the same. Thereafter, the order was passed by the department. It filed writ petition to challenge the order and contended that the order was passed without recording proper reasons.

High Court Held

The Honorable High Court noted that the petitioner had placed on record sample invoices and also bifurcated amounts paid towards freight for the Hosur unit, which is the relevant unit and enclosed both a reconciliation statement and a statement from the Chartered Accountant in respect of such bifurcation. However, the department recorded that the petitioner had not filed any documents or evidence with regard to payment of GST on the collected freight charges.

The Court also noted that the department had not given proper reasons for rejecting the credit. Therefore, it was clear that the conclusion of department was not justified in light of the evidence placed on record by the petitioner. Thus, the Court held that the impugned order was liable to be set aside and the matter was remanded for re-consideration.

The post Order to Be Set Aside and Matter to Be Remanded as No Reasons Were Specified for Denying ITC | HC appeared first on Taxmann Blog.

Priyanka Rathi – [2024] 161 taxmann.com 564 (Article)

Introduction

Intermediary services have been in the spotlight under GST mainly on account of rejection of export-related refunds. While taxpayers believe that services provided by them to overseas entities ought to qualify as export of services, Revenue views such transactions as intermediary services involving mere facilitation of supply between the foreign party and its customer in India, thereby rendering the place of provision of such services within India and ousting them from the ambit of exports.

In the service tax regime as well, export refund on account of intermediary services was highly disputed and various rulings of CESTAT as well as few High Courts expounded the position of law in this context. Now under GST, in terms of Court rulings, there have been some notable judicial pronouncements which have laid down important guidelines for navigation around the intermediary issue. However, despite these rulings, the question still looms as to whether there exists any straight jacket formula yet within the precinct of GST laws for determination of intermediary services. Further, the question also arises as to how one needs to interpret the element of facilitation of supply to arrive at the intermediary nature of services. In this article, the author has delved into the nature of intermediary services, analysed the relevant jurisprudence surrounding the issue with emphasis on marketing and sales promotion services and has attempted to examine whether the controversy stands resolved in light of decision in Chevron’s Case and SNQS’s Case by the Hon’ble Apex Court.

Intermediary services – Meaning

The scope of intermediary services is the same in GST as was the case under the erstwhile service tax regime. Further, the debate over the issue is also ongoing, wherein, the tax department vehemently contends that the services are intermediary and do not qualify as exports whereas the assessee claims that the services are on principal to principal basis, rendered on own account and cannot be classified as intermediary services.

In GST laws, the term intermediary has been defined under Section 2(13) of the IGST Act, 2017, as follows:

“Intermediary” means a broker, an agent or any other person, by whatever name called, who arranges or facilitates the supply of goods or services or both or securities, between two or more persons, but does not include a person who supplies such goods or services or both or securities on his own account.”

A perusal of the aforesaid definition makes it clear that, the arrangement or facilitation between two or more persons governs the classification under intermediary services. Further, if any service is provided on the service provider’s own account, then such service is excluded from the scope of intermediary services.

Denial of export refunds on account of intermediary services

In recent times, a spate of show cause notices/orders have been issued denying Input Tax Credit (“ITC”) refund on account of export of services alleging that the services are in nature of intermediary. Such services include a bouquet of services such as business support, marketing, sales promotion, call centre, recruitment services etc. Now, the issue that arises for consideration is whether all these services which are provided on own account, on principal to principal basis and where there is absence of any tripartite arrangement, can still be regarded as intermediary by Revenue. In this regard, to clarify the issue of intermediary, the CBIC had initially issued Circular No. 107/26/2019-GST dated July 18, 2019 which sought to clarify certain issues pertaining to intermediary, wherein it was stated that providing back-end support services such as order placement, delivery, obtaining clearances, post-sales support services would fall under the ambit of intermediary. However due to persisting ambiguities, the said Circular was later withdrawn. Subsequently, the CBIC issued another Circular No. 159/15/2021-GST dated September 20, 2021 (“Circular”) wherein it was stated that there was no change in the definition of intermediary from the erstwhile regime to GST. The said Circular further clarified the scope of intermediary services and specifically mentioned that only those services which are in nature of facilitation of supply of goods or services will get covered and not those services which are directly provided on own account. The said Circular also captured certain examples which will not fall within intermediary services such as customer care services, processing of insurance claims, outsourcing of work etc. Further, the Hon’ble Punjab & Haryana High Court in the Genpact ruling also dealt with the nature of intermediary services and held that any service provided on own account such as the BPO services cannot be regarded as intermediary as it does not fulfill the relevant conditions such as facilitation of supply etc. Thus, it is imperative on part of Revenue to carry out relevant examination of facts as well as applicable provisions before labeling any services as intermediary.

Click Here To Read The Full Article

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Case Details: Pace Setters Business Solutions (P.) Ltd. v. Union of India - [2024] 161 taxmann.com 589 (Delhi)

Judiciary and Counsel Details

• • Vibhu Bakhru & Amit Mahajan, JJ.
  • Bharat Raichandani, Deepak Khokhar, & Chiatanya G. Tripathi, Advs. for the Petitioner.
  • Vivek Goyal, CGSC for UOI, Gokul Sharma, Adv., Akshay Amritanshu, Sr. Standing Counsel, Ashutosh Jain, & Ms Anjali Kumari, Adv. for the Respondent.

Facts of the Case

The petitioner was engaged in the business of providing services as a recovery agent to a Non-Banking Financial Company (NBFC). It entered into contracts with various service providers (sub-contractors) for availing their services for discharging its obligations under the Agreement with NBFC. The petitioner contended that it was unable to utilize credit for taxes paid in respect of services availed from its sub-contractors. It filed writ petition to challenge the levy of reverse charge on recovery agent services since it was aggrieved on account of service tax and GST in respect of the said services being payable on a reverse charge basis.

High Court Held

The Honorable High Court noted that the petitioner would not be entitled to claim any credit for the service tax or GST paid on inputs as it would not be liable to pay any service tax or GST on the services of a recovery agent, rendered by it. The Central Government has in its wisdom selected certain services on which service tax/GST is payable on a reverse charge basis. The matter relating to whether any such credit is available and to which extent it is available, is a matter of statutory prescription. The right to avail input tax credit is a statutory right and is available only if the statute provides for the same and that too to the extent that the statute permits.

The Court further noted that Article 14 of the Constitution of India does not prohibit reasonable classification, which has rational nexus to its object. Therefore, the challenge of levy of GST on reverse charge basis was not tenable and liable to be rejected.

List of Cases Reviewed

• • Income Tax Officer & Ors. v. R. Takin Roy Rymbai & Ors. (1976) 103 ITR 82
  • Khadinge Sham Bhat v. Agricultural Income Tax Officer & Anr. AIR 1963 SC 591
  • Twyford Tea Co. Ltd. v. State of Kerala & Anr. (1970) 1 SCC 189. relied on.

List of Cases Referred to

• • India & Ors. v. N.S. Rathnam and Sons: 10 SCC 681 (para 20)
  • India v. Adani Power Limited 331 ELT 129 (SC) (para 21)
  • India v. Cosmo Films Ltd. 9 SCC 244 (para 23)
  • ALD Automotive Pvt. Ltd. v. Commercial Tax Officer: 13 SCC 225 (para 25)
  • India v. VKC Footsteps India Pvt. Ltd.: 2 SCC 603 (para 25)
  • ITO v. N. Takin Roy Rymbai [1976] 103 ITR 82 (SC) (para 34)
  • Khadinge Sham Bhat v. Agricultural ITO AIR 1963 SC 591 (para 35).

The post Delhi HC Upheld Validity of Notification Levying GST on Recovery Agent Services Under RCM appeared first on Taxmann Blog.

Case Details: Thirumurugan Traders (Defunct) v. Deputy State Tax Officer - [2024] 161 taxmann.com 537 (Madras)

Judiciary and Counsel Details

• • Senthilkumar Ramamoorthy, J.
  • Mrs R. Hemalatha & S. Rajasekar for the Petitioner.
  • Mrs K. Vasanthamala, Govt. Adv. (Tax) for the Respondent.

Facts of the Case

The petitioner was a registered person under GST and the GST registration was cancelled. It received a demand notice from the department after cancellation of registration, pertaining to a mismatch between GSTR 1 and GSTR 3B returns. It filed writ petition and contended that it was unaware of proceedings as it was no longer a registered person.

High Court Held

The Honorable High Court noted that the petitioner’s GST registration was cancelled and at a minimum, the petitioner had little reason to continually monitor the GST portal. Therefore, the Court held that the impugned order was to be quashed and the matter was remanded for reconsideration subject to the condition that the petitioner would remit 10% of the disputed tax demand. The Court also directed the department to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order.

The post HC Remanded Matter as Assessee Wasn’t Aware of Proceedings Due to Issuance of Demand Notice After Cancellation of GST appeared first on Taxmann Blog.

Case Details: Jai Prakash Shiv Charan Bidi v. Commissioner, Commercial Taxes - [2024] 161 taxmann.com 551 (Allahabad)

Judiciary and Counsel Details

• • Shekhar B. Saraf, J.
  • Pooja Talwar for the Petitioner.

Facts of the Case

The petitioner was aggrieved by the order passed by the department under Section 74 of CGST Act, 2017 and it filed appeal. The Appellate Authority rejected the appeal on the ground that the certified copy of the order passed under Section 74 of the Act was not annexed to the appeal. It filed writ petition against the rejection of appeal and contended that the technical ground on which the Appellate Authority rejected the first appeal should not be allowed to stand.

High Court Held

The Honorable High Court noted that the technical ground on which the Appellate Authority had rejected the first appeal of the petitioner was not justified. Therefore, the Court held that the impugned order passed by the Appellate Authority was liable to be quashed and set aside and the Appellate Authority was directed to hear out the first appeal of the petitioner on merits.

The post HC Quashes Order of Appellate Authority as It Rejected Appeal on Technical Ground of Not Annexing Certified Copy of Order appeared first on Taxmann Blog.

Case Details: Modern Food Enterprises (P.) Ltd. v. Union of India - [2024] 161 taxmann.com 538 (Kerala)

Judiciary and Counsel Details

• • Dinesh Kumar Singh, J.
  • M. Gopikrishnan Nambiar, K. John Mathai, Joson Manavalan, Kuryan Thomas, Paulose C. Abraham, Raja Kannan, R. Chethan Krishna, & S. Parvathi, Advs. for the Petitioner.
  • P.G. Jayashankar, & Muhammed Rafiq, SPL., GP (TAXES), for the Respondent.

Facts of the Case

The petitioner was engaged in manufacture and supply of foods products and filed an application for advance ruling to determine the classification and rate of tax on its products. It was contended that its products would qualify as ‘bread’ and should be taxable at 5% under GST. However, the AAR held that the products would be taxable at 18% and it filed appeal before the Appellate Authority for Advance Ruling (AAAR). The AAAR also held that the products would be taxable at 18%. It filed writ petition against the order.

High Court Held

The Honorable High Court noted that the products are made from the fine flour (Maida) or whole wheat flour (Atta) and thin round sheets of dough are semi-cooked on hot place (Tawa/Skillet) using oil. These are packed and can be consumed after heating them.

The Court also noted that these products are akin/similar to products mentioned in HSN code 1905 of Chapter 19 with heading Preparations of cereals, flour, starch or milk; pastrycooks’ products as ingredients used and process applied in their preparations are somewhat similar to products mentioned in Chapter heading HSN Code 1905. Therefore, it was held that the said products manufactured and supplied by petitioner would be liable to be taxed at 5% as per SI. No. 99A of Notification No. 1/2017-Central Tax (Rate).

The post Classic Malabar Parota and Whole Wheat Malabar Parota to Be Classified Under HSN 1905 & Taxable at 5% | Kerala HC appeared first on Taxmann Blog.

Case Details: Unity OOH Media Solutions (P.) Ltd. v. Deputy State Tax Officer (Addl. Charge) - [2024] 161 taxmann.com 524 (Kerala)

Judiciary and Counsel Details

• • Dinesh Kumar Singh, J.
  • Tomson T. Emmanuel for the Petitioner.

Facts of the Case

The petitioner was an assessee under the provisions of the GST Act, 2017 and it had filed GSTR-1 and GSTR-3B returns for the period July 2017 to March 2018. The department issued notices and the petitioner could not file a reply to the notices issued. In absence of reply to the show cause notices issued and personal hearing, the department passed assessment order and denied certain claim for input tax credit. The petitioner filed writ petition and contended that the impugned order had been passed without hearing and it was not given opportunity of representing the case.

High Court Held

The Honorable High Court noted that the petitioner was not given opportunity of personal hearing to prove his claim of input tax credit. Also, the Court noted that in the case of Diya Agencies (P.) Ltd. v. The State Tax Officer dated 12.09.2023 in WP(C) No. 29769/203 it was held that assessment order with regards to denial of ITC to petitioner was not sustainable, and matter was remanded back to Assessing Officer to give opportunity of hearing to petitioner for its claim for ITC. Therefore, the Court held that the assessment order with regards to denial of input tax credit was not sustainable and the matter was remitted back to the department.

List of Cases Reviewed

• • Diya Agencies v. The State Tax Officer [WP(C) No. 29769/203 dated 12.09.2023][Para 4] Followed.

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