RATIO OF LATEST JUDGEMENTS
Chief Commissioner of Central Goods and Service Tax & Ors. v. Safari Retreats Private Ltd. & Ors., CIVIL APPEAL NO. 2948 OF 2023 (Supreme Court of India)
Whether a building is a plant is a question of fact? It was observed by the Hon’ble Apex Court that this Court has earlier laid down the ‘functionality test’. If it is found on facts that a building has been so planned and constructed as to serve an assessee’s special technical requirements, it will qualify to be treated as a plant for the purposes of investment allowance. The word ‘plant’ used in a bracketed portion of Section 17(5)(d) cannot be given the restricted meaning provided in the Explanation of “plant and machinery”, which excludes land, buildings or any other civil structures. Therefore, a building can also be treated as a plant, which is excluded from the purview of the exception carved out by Section 17(5)(d) as it will be covered by the expression “plant or machinery”.
In the present facts of case, the case was remanded to the High Court to decide whether, on facts, the mall in question satisfies the functionality test so that it can be termed as a plant within the meaning of bracketed portion in Section 17(5)(d). The same applies to warehouses or other buildings except hotels and cinema theatres. A developer may construct a mall predominantly to sell the premises therein after obtaining an occupation certificate. Therefore, it will be out of the purview of clause 5(b) of Schedule II specifying supply of services pertaining to ‘construction’. Each case will have to be tested on merits as the question whether an immovable property or a building is a plant is a factual question to be decided.
The challenge to the constitutional validity of clauses (c) and (d) of Section 17(5) and Section 16(4) of the CGST Act is not established;
The expression “plant or machinery” used in Section 17(5)(d) cannot be given the same meaning as the expression “plant and machinery” defined by the Explanation to Section 17.
Genus Power Infrastructures Limited & Anr. V. Assistant Commissioner of State Tax, Ghatak 1, Ahmedabad & Anr., R/SPECIAL CIVIL APPLICATION NO. 13121 of 2024
The Hon’ble High Court held the impugned summary order is based upon ‘NO ORDER’ passed under Section 73 of 74 of the GST Act as no detailed Order was found to substantiate the Summary Order and therefore, such summary of the order was void-ab-initio and is accordingly hereby to be quashed and set aside. It was therefore directed that the petitioners were at liberty to take consequential action for the refund of the amount paid in Form GST DRC-03.
Huda Sanitary Ware India (P) Limited v. The Deputy Commissioner of Central Tax (AE) GST Bengaluru, WRIT PETITION NO. 14068 OF 2023 (Karnataka High Court)
The Hon’ble High Court held that once proceedings have been initiated under KGST Act which culminated in the adjudication order, parallel/dual proceedings under CGST Act initiated by issuing Show Cause Notice under Section 122 of the CGST Act, were clearly barred and impermissible. It was further held that once proceedings have been initiated under Sections 73 or 74 under KGST Act, penalty proceedings under Section 122 of CGST Act are deemed to have been concluded
NOTIFICATION ISSUED BY CBIC
Notification No. 21/2024-CT dt. 08/10/2024 w.e.f. 01/11/2024
Amnesty scheme for waiver of interest/penalties on demands under Section 73 of CGST / SGST Act in case of registered persons to whom a notice or statement or order, referred to in clause (a) or clause (b) or clause (c) of section 128A of the said Act,has been issued shall be available till 31/03/2025 but for registered persons to whom a notice has been issued under sub-section (1) of section 74, in respect of the period referred to in sub-section (1) of section 128A of the said Act, and an order is passed or required to be passed by the proper officer in pursuance of the direction of the Appellate Authority, or Appellate Tribunal, or a court, in accordance with the provisions of sub-section (2) of section 75, for determination of the tax payable by such person, deeming as if the notice were issued under sub-section (1) of section 73 of the said Act shall be Date ending on completion of six months from the date of issuance of the order by the proper officer redetermining tax under section 73 of the said Act.
Notification No. 22/2024-CT dt. 08/10/2024
A special procedure for rectification of orders where input tax credit ITC was disallowed under Sec. 16(4) earlier but is now eligible under amended provisions of Section 16(5) or Section 16(6) has been prescribed. Taxpayers can apply for rectification of order under Sections 73, 74, 107 or 108 within 6 months of this notification electronically on the common portal. The Proper Officer will take a decision on application within 3 months.
Notification No. 23/2024-CT dt. 08/10/2024 w.e.f. 01/11/2024
Nil Late fee shall be levied in case of NIL Return is filed in FORM GSTR-7 (TDS return) from June 2021 onwards. Further Late Fee for FORM GSTR-7 (TDS return) is caped at Rs. 25 per day, subject to maximum of Rs.1000.
Notification No. 05/2024-Central Tax (Rate) dt. 08/10/2024 w.e.f. 10/10/2024
Amends Notification 1/2017 –Central Tax (Rate) dt 28.06.2017, following amendments have been made:
(a) after Schedule I, in List 1, after item number 232 and the entries relating thereto, the following item numbers and entries shall be inserted, namely: (233) Trastuzumab Deruxtecan (234) Osimertinib (235) Durvalumab;
(b)in Schedule II, after S. No. 32B and the entries relating thereto, the following S. No. and entries shall be inserted, namely: –
“32C | 1905 90 30 | Extruded or expanded products, savoury or salted (other than un-fried or un-cooked snack pellets, by whatever name called, manufactured through process of extrusion)” |
(c) in Schedule III, – (i) against S. No. 16, in column (3), for the words “un-fried or un-cooked snack pellets, by whatever name called, manufactured through process of extrusion”, the words “un-fried or un-cooked snack pellets, by whatever name called, manufactured through process of extrusion, extruded or expanded products, savoury or salted” shall be substituted;
(ii) for S. No. 435A and the entries relating thereto, the following S. No. and entries shall be substituted, namely: –
NOTIFICATION ISSUED BY CBIC
Notification No. 21/2024-CT dt. 08/10/2024 w.e.f. 01/11/2024 Amnesty scheme for waiver of interest/penalties on demands under Section 73 of CGST / SGST Act in case of registered persons to whom a notice or statement or order, referred to in clause (a) or clause (b) or clause (c) of section 128A of the said Act,has been issued shall be available till 31/03/2025 but for registered persons to whom a notice has been issued under sub-section (1) of section 74, in respect of the period referred to in sub-section (1) of section 128A of the said Act, and an order is passed or required to be passed by the proper officer in pursuance of the direction of the Appellate Authority, or Appellate Tribunal, or a court, in accordance with the provisions of sub-section (2) of section 75, for determination of the tax payable by such person, deeming as if the notice were issued under sub-section (1) of section 73 of the said Act shall be Date ending on completion of six months from the date of issuance of the order by the proper officer redetermining tax under section 73 of the said Act. Notification No. 22/2024-CT dt. 08/10/2024 A special procedure for rectification of orders where input tax credit ITC was disallowed under Sec. 16(4) earlier but is now eligible under amended provisions of Section 16(5) or Section 16(6) has been prescribed. Taxpayers can apply for rectification of order under Sections 73, 74, 107 or 108 within 6 months of this notification electronically on the common portal. The Proper Officer will take a decision on application within 3 months. Notification No. 23/2024-CT dt. 08/10/2024 w.e.f. 01/11/2024 Nil Late fee shall be levied in case of NIL Return is filed in FORM GSTR-7 (TDS return) from June 2021 onwards. Further Late Fee for FORM GSTR-7 (TDS return) is caped at Rs. 25 per day, subject to maximum of Rs.1000. Notification No. 05/2024-Central Tax (Rate) dt. 08/10/2024 w.e.f. 10/10/2024 Amends Notification 1/2017 –Central Tax (Rate) dt 28.06.2017, following amendments have been made: (a) after Schedule I, in List 1, after item number 232 and the entries relating thereto, the following item numbers and entries shall be inserted, namely: (233) Trastuzumab Deruxtecan (234) Osimertinib (235) Durvalumab; (b)in Schedule II, after S. No. 32B and the entries relating thereto, the following S. No. and entries shall be inserted, namely: –
(c) in Schedule III, – (i) against S. No. 16, in column (3), for the words “un-fried or un-cooked snack pellets, by whatever name called, manufactured through process of extrusion”, the words “un-fried or un-cooked snack pellets, by whatever name called, manufactured through process of extrusion, extruded or expanded products, savoury or salted” shall be substituted; (ii) for S. No. 435A and the entries relating thereto, the following S. No. and entries shall be substituted, namely: –
(d) in Schedule IV, after S. No. 210 and the entries relating thereto, the following S. No. and entries shall be inserted, namely: –
Notification No. 06/2024-CT (Rate) dt. 08/10/2024 w.e.f. 10/10/2024 RCM on Supply of Metal Scrap by an unregistered person to a registered person shall be applicable. Amendment in Notification No. 4/2017-Central Tax (Rate) dated June 28, 2017 is made by adding a new entry No.8 to the table in the original Notification, after S. No. 7. This brings the Metal Scrap of the GST tariff Chapter 72, 73, 74, 75, 76, 77, 78, 79, 80 or 81 of HSN Code under the ambit of RCM. Notification No. 07/2024-Central Tax (Rate) dt. 08/10/2024 w.e.f. 10/10/2024 Amends Notification 11/2017 –Central Tax (Rate) dt 28.06.2017, following amendment have been made: In the Table, against serial number 8 (i) after item (iva) and the entries relating thereto in columns (3), (4) and (5), the following item and entries relating thereto in columns (3), (4) and (5) shall be inserted, namely: –
Notification No. 08/2024-Central Tax (Rate) dt. 08/10/2024 w.e.f. 10/10/2024 Amends Notification 12/2017 –Central Tax (Rate) dt 28.06.2017, following amendments have been made: (A) after serial number 25 and the entries relating thereto, the following serial number and entries relating thereto in columns (2), (3), (4) and (5) shall be inserted, namely: –
(B)after serial number 44 and the entries relating thereto, the following serial number and entries relating thereto in columns (2), (3), (4) and (5) shall be inserted, namely: –
(C) after serial number 66 and the entries relating thereto, the following serial number and entries relating thereto in columns (2), (3), (4) and (5) shall be inserted, namely: –
(D) for serial number 69 and the entries relating thereto in columns (2), (3), (4) and (5), the following shall be substituted, namely:
(E) against serial number 71, in column (3), for the words “National Council for Vocational Training”, the words “National Council for Vocational Education and Training” shall be substituted. (ii)in paragraph 2 of the said notification, (A)in item (h), – (a)in sub-item (i), for the words “National Council for Vocational Training”, the words “National Council for Vocational Education and Training” shall be substituted. (b)in sub-item (ii), for the words “National Council for Vocational Training”, the words “National Council for Vocational Education and Training” shall be substituted. Notification No. 09/2024-Central Tax (Rate) dt. 08/10/2024 w.e.f. 10/10/2024 Amends Notification 13/2017 –Central Tax (Rate) dt 28.06.2017 Service by way of renting of any property other than residential dwelling to any registered person by any unregistered person shall be taxable and tax is to be paid on RCM basis by the registered person. |
GST PORTAL – NEWS & UPDATES:
Advisory on Proper Entry of RR No./Parcel Way Bill (PWB) Numbers in EWB system Post EWB-PMS The Parcel Management System (PMS) of Indian Railways has now been integrated with the E-Way Bill (EWB) system via Application Programming Interfaces (APIs). This integration facilitates the seamless transfer of RR No./Parcel Way Bill (PWB) data from Railways to e-way bill portal, ensuring better traceability and compliance. It is important that taxpayers follow the correct process for entering Parcel Way Bill numbers into the EWB system: i. Applicability of RR No./PWB Entry in the EWB System ii. Updating Part-B of EWB for Rail Transportation iii. Format for Entering the RR No./PWB Number iv. RR Number for FOIS or Leased Wagons v. EWB and RR No./PWB Number Validation vi. Importance of Accurate entry vii. Assistance and Clarifications
GSTN e-Services App to Replace e-Invoice QR Code Verifier App GSTN has launched new GSTN e-Services app, which will replace the old e-Invoice QR Code Verifier App. This app offers the following features: 1. Verify e-Invoices: Scan the QR code to verify the B2B e-Invoices QR code and check the live status of the Invoice Reference Number (IRN). 2. GSTIN Search: Search for GSTIN details using the GSTIN or PAN. 3. Return Filing History: View the return filing history for a GSTIN. 4. Multiple Input Methods: Input search details using text, voice, or scan functions. 5. Result Sharing: Share search results via the app. The app would soon be available on the Google Play Store and App Store. No login is required to use the app. Taxpayers and stake holders can use this mobile application to verify the E-Invoices and GSTIN Status, Return status of Vendors. A detailed manual would also be released by GSTN.
GST Portal Help Desk Number: 1800-103-4786 |
SHOW CAUSE NOTICES ON ISSUE OF CLASSIFICATION OF GOODS / SERVICES SHOULD BE ISSUED UNDER SECTION 73 NOT UNDER SECTION 74 of CGST / SGST Act,2017 Section 74 should not be invoked by Revenue Authorities when the matter strictly pertains to classification of Goods / Services. Reference is invited to the Judgment of Atlantic Care Chemicals Pvt. Ltd. v Superintendent, Central Tax & Central Excise; Alappuzha (2023) 11 Centax 10 (Ker.), wherein it was observed as under: 4. It appears that the return filed by the petitioner got accepted by the 1st respondent, jurisdictional CGST authority. However, later on 5-7-2022 the 1st respondent initiated action under section 74(1) of the GST Act by issuing a show cause notice to the petitioner. As per Ext.P2 the classification is under Hand Sanitizers (alcohol based) under HSN 3808 exigible to GST @ 18%. In pursuant to the said notice, the order in original dated 24-7-2023 was passed. The petitioner had paid the assessed amount along with the interest in pursuant to the said order. The petitioner is not disputing the said liability, he is only aggrieved by the initiation of the penalty proceedings. 5. The learned Counsel for the petitioner submits that whether the Hand Sanitizers were liable to be taxed at 12% or at 18% was not finally decided. The 1st respondent had accepted the return filed by the petitioner. The issue involved is of classification and a debatable issue. The petitioner had not evaded the tax and, therefore, initiation of the penalty proceedings for tax is unjustifiable. 6. It is further submitted that, as per the Judgment of this Court in the case Chakkiath Brothers v. Assistant Commissioner 2014 (3) KLT 222, on the basis of a mere dispute in classification, no penalty proceedings can be initiated. In the present case also there is a dispute of classification. In the impugned order the authority had not considered the judgment of this Court in the case Chakkiath Brothers (supra). (emphasis supplied) Reference is also invited to the judgment of PEPSICO INDIA HOLDINGS P. LTD. v DY. COMMERCIAL (A) IV, COMMERCIAL TAXES, JAIPUR, 2018 (16) G.S.T.L. 249 (Raj.), wherein it was held as under: 27. Taking into consideration the aforesaid, in my view, the claim of the petitioner is justified and I am inclined to allow the same by holding that “Potato Chips” would fall in the category of entry 107 to be charged with tax @ 4%, and once rate of 4% has been held to be well reasoned and justified, which was claimed by the petitioner, then question of levy of interest does not arise, so also once the claim of the assessee is well reasoned and justified, question of imposition of penalty u/s 61 automatically goes. Even otherwise it is a case of classification of entries and no case can be made out of evasion of tax.
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LEGAL MAXIMS/ PHRASES
Legal Maxim / Phrase | Legal Principle / Concept |
Certiorari | A writ by which orders passed by an inferior court is quashed. |
Corpus | Body |
Corpus delicti | The facts and circumstances constituting a crime and Concrete evidence of a crime, such as a corpse (dead body). |
Confiscate | To take away private property into the possession of the state. |
Damnum sine injuria | Damage without injury. |
De facto | In fact. |
De jure | By law. |
GST PORTAL – NEWS & UPDATES:
GSTN e-Services App to Replace e-Invoice QR Code Verifier App
GSTN has launched new GSTN e-Services app, which will replace the old e-Invoice QR Code Verifier App. This app offers the following features:
- Verify e-Invoices: Scan the QR code to verify the B2B e-Invoices QR code and check the live status of the Invoice Reference Number (IRN).
- GSTIN Search: Search for GSTIN details using the GSTIN or PAN.
- Return Filing History: View the return filing history for a GSTIN.
- Multiple Input Methods: Input search details using text, voice, or scan functions.
- Result Sharing: Share search results via the app.
The app would soon be available on the Google Play Store and App Store. No login is required to use the app. Taxpayers and stake holders can use this mobile application to verify the E-Invoices and GSTIN Status, Return status of Vendors. A detailed manual would also be released by GSTN.
Advisory on issuance of Notices/Orders without digital signatures of the Issuing Authorities
The GSTN has issued advisory pertaining to doubts which has been created regarding the validity of documents issued by the tax officers on the common portal viz. Show cause Notices, Order of Assessment, Refund Orders etc. which does not contain the Digital signatures on the pdf. document downloaded from the common portal. In this context, it is to be mentioned that such documents (i.e. SCN/Orders) are generated on the common portal from the login of the officer, who logs in through Digital Signatures. Further, these documents being computer generated on the command of the officer, may not require physical signatures of the officer as these documents can be issued by the officer only after logging into the common portal using Digital Signature. Thus, all these documents in JSON format containing the order details along with the issuing officer details are stored in the GST system with the digital signature of the issuing officer.
Archival of GST Data on GST Portal
Section 39 (11) of the CGST Act, 2017, implemented w.e.f 01-10-2023 vide Notification No. 28/2023 – Central Tax dated 31th July, 2023, provides that the taxpayers shall not be allowed file their GST returns after the expiry of a period of three years from the due date of furnishing the said return.
As per GST portal data policy, data for view of taxpayer to be retained for seven years only. The data policy shall be implemented on the GST portal. Thus, return data will not be available to view beyond 7 years for taxpayers. Data archival process will be implemented after a prior notice from GSTN on a monthly basis for period starting July, 2017. Taxpayers are advised to download their relevant data from the GST portal for any future reference, if required
DUE DATES:
LAST DATE TO ISSUE GST SHOW CAUSE NOTICE & ORDER FOR F.Y. 2017-18 TO F.Y. 2023-24 | |||||
TAX PERIOD (F.Y.) | DUE DATE OR EXTENDED DATE OF ANNUAL RETURN | NON FRAUD CASES u/s 73 of CGST | FRAUD CASES u/s 74 of CGST | ||
NOTICE | ORDER | NOTICE | ORDER | ||
3 MONTHS BEFORE ORDER | WITHIN 3 YRS OF DUE DATE OF ANNUAL RETURN | NOTICE 6 MONTHS BEFORE ORDER | WITHIN 5 YRS OF DUE DATE OF ANNUAL RETURN | ||
2017-18 | 05 February 2020 | 30-Sep-2023 (Time barred) | 31-Dec-2023 (Time barred) | 05-Aug-2024 (Time barred) | 05 February 2025 |
2018-19 | 31 December 2020 | 31-Jan-2024 (Time barred) | 30-Apr-2024 (Time barred) | 30 June 2025 | 31 December 2025 |
2019-20 | 31 March 2021 | 31-May-2024 (Time barred) | 31-Aug-2024 (Time barred) | 30 September 2025 | 31 March 2026 |
2020-21 | 28 February 2022 | 30-Nov-2024 (Approaching) | 28 February 2025 | 31 August 2026 | 28 February 2027 |
2021-22 | 31 December 2022 | 30 September 2025 | 31 December 2025 | 30 June 2027 | 31 December 2027 |
2022-23 | 31 December 2023 | 30 September 2026 | 31 December 2026 | 30-1un-2028 | 31 December 2028 |
2023-24 | 31 December 2024 | 30 September 2027 | 31 December 2027 | 30 June 2029 | 31 December 2029 |
Due Dates – GST Compliances in October 2024 | |||
Monthly | Quarterly | Other Due Dates | |
GSTR-3B (Sept,2024) 20th October 2024 | GSTR-3B (July -Sept, 2024) 22nd October 2024, 24th October 2024 | GSTR-5 (Sept, 2024) 13th October 2024 | GSTR-5A (Sept, 2024) 20th October 2024 |
GSTR-1 (Sept,2024) 11th October 2024 | GSTR-1 (Jul-Sept, 2024) 13th October 2024 | GSTR-6 (Sept, 2024) 13th October 2024 | GSTR-7 (Sept, 2024) 10th October 2024 |
IFF (Optional) (Sept,2024) NA | CMP-08 (Jul-Sept, 2024) 18th October 2024 | GSTR-8 (Sept, 2024) 10th October 2024 | RFD-10 18 Months after the end of quarter for which refund is to be claimed |
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