NEWSLETTER NOVEMBER 2017baroda-icai.org/media/branch_news_letter/bb0a22e2a... · The theme of...

-NEWSLETTERBARODA BRANCH OF WESTERN INDIA REGIONAL COUNCIL OF

THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA

Volume - X | November 2017

THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA

e

MANAGING COMMITTEE

EDITORIAL TEAM

CONTENTS

CA. Arpan Dodia

CA. Dhiren Parikh

CA. Hitesh Agrawal

CA. Krunal Bhrambhatt

CA. Pradeep Agrawal

CA. Viral K Shah

CA. Vin d Pahilwani

CA. Abhijit J Kotecha

CA. Manoj Sahu

98983 83530Chairman

93762 11099Vice-Chairman

99980 28737Secretary

78748 11551Treasurer

98985 60967Ex-officio

98243 62211IP - Chairman

98980 78176Committee Member



o

CA. Arpan Dodia CA. Abhijit J Kotecha

CA. Rahul Parikh CA. Nayan R Kothari

CA. Neena Patel CA. Gunjan Agrawal

CA. Vrushali Shah CA. Priyanka Doshi

CA. Dhruti Vaidya CA. Sagar Mehta

Forthcoming Events 2

Direct Tax Updates 3

Judicial Decisions onIndirect Taxes 4

Are we all Culprits ?

Spirituality, Sustainability andCorporate Responsibility 10

Cherising Memories 11

GST Update 5

7

Dear Colleagues,

New dreams, new hopes, new experiences and new joys: wishing a very Happy New Year

Between the updates in utility by the Income Tax department in the last few days of due date and technical hitchesof the website, the Tax Audit season is over for most of the assessees and yet to be over for International TaxationCases. The lecture meeting on very required topic of “Filing of GSTR – 2” was organised on 25/10/2017 andmembers were benefited by the expertise of faculty.

The “chilling” winter season has started but we need to “warm up” and get ready to unlearn, learn and relearn inthis era of Speed, Connectivity and Intangibles.

As stated in my message for earlier month, the Baroda Branch is celebrating 50 years of its foundation and WIRCRegional Tax conclave is organised as a part of Golden Jubilee year celebration. It is worthy to note that, this twodays conclave will be inaugurated on the foundation day of the Baroda Branch i.e. 1st December.

The Conclave is based on a very inspiring theme…

The theme of conclave is derived from ultimate source of eternal wisdom “Shrimad Bhagwad Geeta”. It is wellsaid that. Knowledge is everything, when we know better, we do better. In new era of competition, it has becomeincreasingly difficult to make a mark in global financial world. In face of challenges we feel victimized by ourdestiny. However, we fail to appreciate the fact that we can create our destiny by being decisive & taking actionswhich ultimately leads to success.

Accordingly, the conclave is structured to create a pool of varied knowledge on various topics to be discussed intwo days of conclave. We are sure the conclave will inspire the participants to get started, keep on moving &achieve success by gaining knowledge. I once again urge all the members to be part of this celebration by not onlyregistering and attending this conclave but also give active support in various activities for organising this grandevent. The details of the topic, faculty etc. is given overleaf.

On 11th of November, Diwali Milan with garba is being organised. Members are requested to come with family intraditional dress and enjoy the fellowship.

The next big event, unique annual feature of Baroda branch, 27th RRC is planned @ The Crescent Resort, Indore,from4th to 6th of January ’18.The details of this Knowledge cum leisure tour is given on the last page of thisnewsletter.

I appeal all the members to exercise their right and vote in the upcoming assembly election.

Also a gentle reminder about the minimum requirement of CPE Hours which is on a periodic basis of 3 years andcurrently the applicable period is from 1st Jan 2017 to 31st Dec 2019. Members are required to meet thisrequirement on a 3 year periodic basis but also on a per year basis. A separate mail will also be forwarded to all themembers regarding the details of this requirement.

Woods are lovely dark and deep, But we have promises to keep... And Miles to before we Sleep... And Miles to gobefore we Sleep...

With best regards

CA. Arpan Dodia

on the path of knowledge

Baroda Branch of WIRC of ICAI 2

FORTHCOMING EVENTS

BRANCH EVENTS

ORGANISED BY

HOSTED BY

WESTERN INDIA REGIONAL COUNCIL OF ICAI

BARODA BRANCH OF WIRC OF ICAI &

ANAND BRANCH OF WIRC OF ICAI

JOINTLY

DAY - 1

8:00 am to 9:00 am REGISTRATION & BREAKFAST

9:00 am to 10:30 am INAUGURAL SESSION

10:45 am to 01:15 pm TECHNICAL SESSION - I

1:15 pm to 2:30 pm LUNCH BREAK

2:30 pm to 5:30 pm TECHNICAL SESSION - II

7:00 pm Onwards CULTURAL EVENT

Chief Guest: * Rajkot

Revenue Secretary, Ministry of

Finance, Govt. of India

Guest of Honor: *

Hon. President ICAI

*

Hon. Vice President ICAI

Session Chairman: Ahmedabad

Past President, ICAI

Penalty - The New Era Mumbai

Assessment, Survey

& Search after Mumbai

demonetization

Session Chairman:

Mumbai, Past President, ICAI

Concept of Supply

with special emphasis Bengaluru

on transactions

without consideration

including employer -

employee

Input Tax Credit -

Issues & Intricacies Vadodara

Followed by Dinner

Shri Hasmukh Adhia,

CA. Nilesh Vikemsey,

CA. Navin N D Gupta,

CA. Sunil Talati,

CA. Jagdish Punjabi,

CA. Bhupendra Shah,

CA. Uttam Prakash Agrawal,

Adv. V Raghuraman,

Mr. Sanjay Saraswat,

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�

�

�

Under reporting &

Misreporting under

section 270A

DAY - 2

8:00 am to 9:00 am BREAKFAST

9:00 am to 11:30 am TECHNICAL SESSION - III

11:45 am to 01:15 pm

01:15 pm to 2.30 pm LUNCH BREAK

2:30 pm to 4:00 pm PANEL DISCUSSION

4:15 pm to 5:45 pm TECHNICAL SESSION - IV

5:45 pm to 6:00 pm SPECIAL SESSION &

VALEDICTORY SESSION

Chairman of the Session:

Bengaluru - CCM, ICAI

Classification & Delhi

Valuation - Is it more

complex than previous

regime –

Industry specific

impact analysis of

after GST regime -

- Food / FMCG *

CFO, Amul

- PSU / Processing

CFO, Indian Oil Corporation Ltd.

- Manufacturing

- Real Estate

Structuring of Mumbai

International

Transactions

in light with

GAAR & POEM

Panel Discussion on Threat Panel Moderator:

of Matching / Mismatching in Jaipur

Report under GST v/s DT

Panellist:

Direct Tax Vadodara

Rajkot

GST Surat

Vadodara

Provisions Related to Delhi

Benami Transactions &

Specified Cash

Transaction

CA. Madhukar Hiregange,

CA. Bimal Jain,

CA. D. D. Heranjal,

Mr. V. K. Jain,

Eminent Faculty

Eminent Faculty

CA. T. P. Ostwal,

Adv. Sanjay Jahwar,

CA. Rahul Parikh,

CA. Dipak Rindani,

CA. Avinash Poddar,

CA. Abhay Desai,

Dr. Girish Ahuja,

�

�

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*Subject to confirmation

CPEHRS.12

WIRC Regional Tax Conclave

DAY & DATE : FRIDAY & SATURDAY, DECEMBER 1 & 2, 2017

VENUE : SIR SAYAJINAGAR GRUH, VADODARA

Before November 20, 2017 After November 20, 2017

Members Non-Members Members Non-Members

Rs. 2900* Rs. 3900* Rs. 3500* Rs. 4500*

*GST @ 18% applicable extra

Payment Mode Cash/DD/Cheque to be drawn in favor of “Baroda Branch of WIRC of ICAI”, payable at Baroda.

Paytm (Mobile No: +91 72279 87066) facility is available at Baroda Branch. Members are requested to give their Membership no & Name

in comment.

Members can enroll themselves online also by visiting on www.baroda-icai.org

Drop-box facility by dropping of their cheque for registration at 2-B Ramkrishna Chambers, BPC Road Baroda. Kindly mention your Name,

Mem. No and WIRC Regional Conference on the backside of the Cheque.

Those members who want to take credit of GST are requested to submit their GST Number along with registration.

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WICASA EVENTS

Contributed by :can be reached at

[email protected]

CA. Narendra Hindocha

DIRECT TAX UPDATES

143(1)(a)(vi) of the Act shall continue to apply

These instructions also apply to cases in whichcommunications relating to proposed adjustments are alreadysent.

Provisions of section 2(22)(e), when read literally, can createhavoc for an unsuspecting assessee. According to strictreading, if a loan is granted to specified entities for a period ofonly few days, the amount is to be considered as ‘Dividend’resulting in obligation to deduct tax at source and alsoinclusion of such amount in income. Judiciary has beenpragmatic in interpreting the provisions and cases ofadvances for commercial purposes are held to be outside thescope of the provision, Recently in case of Dilip GovindlalShah & Anr. Vs Income Tax Officer & Anr., Ahmedabad Benchof ITAT held that where

In the Case of DCIT Vs American Express India Pvt. Ltd. (ITATDelhi), ITA No. 4422/Del./2014, Assessee had netted offinterest on Income-tax refund against expenditure on interestand this was upheld by the Commissioner(Appeals)). Thisorder of the first appellate authority was reversed by theTribunal by holding that interest receipt from the departmenton the income tax refund, does not have any direct nexus withthe business of the assessee and it cannot be linked with thebusiness of the assessee. Therefore, it cannot be netted offwith the other interest payment. In penalty proceedings, it washeld that the assessee had any bona fide belief that such atreatment was permissible and such bona fide belief has beenaccentuated by the fact that the Ld. CIT (Appeals) had allowedsuch netting off. Hence, it cannot be held that the assesseehad furnished any inaccurate particulars of income so as towarrant levy of penalty u/s 271(1)(c) read with Explanation 1.

The logic cannot be faulted. However, section 275(1A)permits levy of penalty after it is dropped, in case matter islater decided against the assessee by any higher forum,including Supreme Court. That provision will be virtuallyredundant if logic of this decision is applied.

Prior to amendment in section 32, making allowance ofdepreciation mandatory, Assessees would

in varioussituations including cases in which assessee was entitled toclaim exemptions or deductions or unabsorbed losses etc.Foregoing the claim for depreciation in one or more yearsapparently for such purposes was upheld by the Supreme

2. Deemed Dividend

3. Penalty when addition once deleted

4. Supreme Court on tax planning

transactions between two assessees

are in form of current accommodation adjustment entries

and movement of funds are both ways on need basis, such

loans do not attract the wrath of Section 2(22)(e)

If a claim made by the assessee has been allowed at one

stage and later on has been disallowed, ostensibly, the

assessee can said to have some bona fide belief for

making such a claim.

not claim

depreciation as a measure of tax planning

Day & Date :

Topic :

Time :

Venue :

Fees :

Saturday, 11-11-2017

Diwali Get Together with Garba

7:00 pm onwards (followed by Dinner)

Alkapuri Club, Vadodara.

Rs. 100/-

(Organised jointly with Baroda Branch of WIRC of ICAI)

Day & Date :

Topic :

Papers : Paper I :

Paper II :

Venue :

Fees :

Sunday, 26-11-2017

Mock Test for CPT Students

Fundamentals of Accounting and MercantileLaw (10.00 am to 12:00 pm)

General Economics and QuantitativeAptitude (2:00 pm to 4:00 pm)

ICAI Bhawan, Vadodara.

Rs. 200/- for two papers

STUDY CIRCLE EVENTSDay & Date :

Topic :

Time :

Faculty :

Venue :

Fees :

Tuesday, 07-11-2017

Office Automation- Smart way of Managing andGrowing Practice

6.00 pm to 8.00 pm

CA. Sureshkumar Sirvi

Conference room, ICAI Bhawan

Rs. 250/- (for non CPE members)

1. Adjustments while processing returns

Many assessees received intimations under section 143(1)making adjustments related to

and income as perReturn of income filed in Form ITR 1. Many of theseadjustments were not justified in the facts of the case aslegally the two amounts need not be same due toexpenses/deductions.

relating to such adjustments and states to thefollowing effect:

- In returns, information about a particular item of income isonly on net basis and hence comparison with the datacontained in such forms is not meaningful. Henceprovision of section 143(1)(a)(vi) of the Act would not beinvoked to issue intimation proposing adjustment in suchsituations.

-and the said Forms contain

specific detail in this regard pertaining to that item, section

difference between amounts

of income as per Form 16/16A/26AS

Order under section 119 dated 11th

October, 2017 vide Instruction No. 9/2017 modifies the

instructions

However, where any item of income is altogether

omitted in the return of income


Contributed by :

can be reached [email protected]

CA. Anirudh Sonpal

JUDICIAL DECISIONS ON INDIRECT TAXES

I. CLASSIFICATION

1.1 ‘Shower to Shower’ & ‘Listerine Mouth Wash’ cannot be classified as a medicine or a

drug merely because they contain some percentage of acid or ethanol or similar

ingredients; these products can be used by any person irrespective of being

prescribed by a medical doctor and are used to feel fresh and avoid body odour or

remove bad smell. However, ‘Savlon’ is a product having medicinal value and used as

an antiseptic and hence merits classification as a medicament, which attracts lower

duty/tax.

[Johnson & Johnson Ltd vs CTO, Jaipur – Rajasthan HC]

1.2 ‘Swad’ consisting of 97% Sugar and other ingredients like Rock Salt, Black Salt, Ginger

Powder etc was an Ayurvedic Medicine taken in case of stomach disorder or for

indigestion purposes and hence was taxable at lower rate applicable to such

medicines; the product was not a

toffee or candy and its character did

not change merely because it was

freely available at confectionary

shops.

[ACTT vs Khandelwal Drug Agencies

– Rajasthan HC]

1.3 Milk sold either after boiling, cooling

or mixing sugar or any flavour would

not take away the basic characteristic

of milk so as to make it a new product;

exemption available to ‘milk’ would

also be available to ‘flavoured milk’.

[Gujarat Coop Milk Marketing

Federation Ltd vs State of U.P. –

Allahabad HC]

Construction of individual flats, units

or houses would not be leviable to

Service Tax even if more than 12 units

(upto 1-7-12) or 1 unit (from 1-7-12)

were constructed on a large plot of

land, which did not qualify as a

‘residential complex’.

[Beriwal Construction Co vs CCE&ST,

Agra – Allahabad Cestat]

3.1 Where service tax was discharged

under Reverse Charge on import of

services on the consideration paid to

the provider situated abroad and the

receiver in India deposited TDS on the

consideration so paid, the TDS

amount would not form part of the

value on which service tax was

required to be paid under reverse

charge since, as per the agreement,

TDS was to be borne by the service

receiver in India and was not deducted

from the consideration payable, as per

the agreement, to the service provider

situated abroad.

[Garware Polyester Ltd vs CCE,

Aurangabad – Mumbai Cestat]

3.2 The assessee was engaged in

providing various services including

Business Auxiliary and Management,

Maintenance & Repair services. With

reference to repair services, the

service tax was paid on the invoice

II. CONSTRUCTION

III. VALUATION

Court in case of Mahendra Mills. Recent decision reported at (2017) TaxCorp(LJ)13698 (SC) Plastiblends India Limited vs. ACIT restricts such option in case ofAssessee entitled to deduction under section 80IA. The logic stated is that S. 80-IAcontains substantive and procedural provisions for computation of special deduction.

The claim for 100% deduction, without taking into considerationdepreciation, is anathema to the scheme u/s 80-IA of the Act which is linked to profits.

It observed that in CIT v. Mahendra Mills (2000) 243 ITR 56 it had held that it is achoice of an assessee whether to claim or not to claim depreciation but that decisionwas rendered in the context of assessing business income of an assessee underChapter IV of the Act which is regulated by Sections 28 to 43D of the Act.

The Supreme Court decided some very contentious issues relating to developmentagreements in its decision in case of Commissioner of Income Tax Versus BalbirSingh Maini and others.

Some of the observations and conclusions are as under:

I) Simultaneously, Sections 17 and 49 of the 1908 Act have been amended, clarifyingthat unless the document containing the contract to transfer for consideration anyimmovable property (for the purpose of Section 53A of 1882 Act) is registered, it shallnot have any effect in law, other than ……….. Hence,

High Court was right in stating that in order to qualify as a “transfer” of acapital asset under Section 2(47)(v) of the Act, there must be a “contract” which canbe enforced in law under Section 53A of the Transfer of Property Act.

ii)for the purposes of definition of ‘transfer’

iii) Transfer of property is not to be considered as having taken place asThis is based on

the principle that income, in order to be liable to tax, has to be real. That will support aproposition that if income does not materialize at a later point of time, it would not beliable to tax. A case that comes to mind is that of interest on refund of Income-taxwhich is later withdrawn.

Any device adopted to reduce or inflate the profits of eligible business has to be

rejected.

when Joint Development

Agreement is not registered, then it shall have no effect in law for the purposes of

Section 53A.

Possession for the development of property is not to be considered as possession

later the

Development Agreement could not operate due to legal issues.

5. Supreme Court on Joint Development Agreement


value of service charges; however, the

assessee raised separate debit notes

for recovering the cost of manpower

deployed for providing the repair

services and did not pay service tax on

such charges on the ground that these

were reimbursement of expenses. The

Honourable Tribunal observed that

service tax was to be paid on such

manpower cost charged since without

manpower, the assessee could not

have provided the services and that

the so-called reimbursable expenses

were part and parcel of the gross value

of the services.

[Vinyl Chemicals vs CCE, Raigad –

Mumbai Cestat]

3.3 Where products offered on quantity

discount were supplied along with

same packing as products cleared on

payment of duty and bore same MRP,

assessees will be liable to pay duty on

quant i ty d iscount of fered to

dealers/distributors as MRP value

declared on package alone is deemed

to be assessable value irrespective of

actual price paid/payable by buyer.

[Pharm Products Pvt Ltd vs CCE,

Tiruchapalli – Chennai Cestat]

3.4 Assessee engaged in manufacturing

of welding electrodes which are sold

through their dealers as well as

directly to industrial/institutional

consumers - 60% of sales are to

dealers and remaining 40% is to

industrial/institutional consumers. As

per business policy of assessee they

are seeking advance payment from

dealers for supplies to be made by

them; dealers who make advance

payment are extended the benefit of

5% of value /price as cash discount.

The Honourable Tribunal held that

under the circumstances, notional

interest accruable on advance is

includible in assessable value since

such discount was offered only to

those customers who had made

advance payments.

[ D And H Secheron Electrodes Pvt Ltd

Vs CCE – Delhi Cestat]

GST UPDATE

Contributed by :


CA. Manilal Parsiya

Central Government videamend Central Goods and Service Tax Rules 2017 as under:

1. Extended the date from 30.09.2017 to 31.10.2017 for every person registered underany of the existing laws but who is not liable to be registered under the Act, may at hisoption, submit an application electronically in FORM GST REG-29 for the cancellationof registration granted to him.

2. The date to submit declaration in Form Tran 1 for furnishing the proportion of supply onwhich Value Added Tax or service tax has been paid before the appointed day but thesupply is made after the appointed day, and the Input Tax Credit admissible thereon hasbeen linked to Rule 117 and may be extended by the Commissioner on therecommendation of the Council extend the period of 90 days for further period but notexceeding ninety days.

3. The date to submit declaration in Form Tran 1 for sent goods on approval under theexisting law and to whom sub-section (12) of section 142 applies has been linked toRule 117 and may be extended by the Commissioner on the recommendation of theCouncil extend the period of 90 days for further period but not exceeding ninety days.

4. Title of Form GST 29 has been substituted to “APPLICATION FOR CANCELATION OFREGISTRATION OF MIGRATED TAXPAYERS”.

Central Government vide hasdone away with bond in case of all the assesses. Now all registered persons who intend tosupply goods or services for export without payment of IGST shall be eligible to furnish aLetter of Undertaking in place of a bond except those who have been prosecuted for anyoffence under the CGST Act, 2017or IGST Act, 2017 or any of the existing laws in force in acase where the amount of tax evaded exceeds two hundred and fifty lakh rupees.

The Letter of Undertaking shall be furnished on the letter head of the registered person, induplicate, for a financial year in the annexure to FORM GST RFD – 11 and it shall be executedby the working partner, the Managing Director or the Company Secretary or the proprietor orby a person duly authorised by such working partner or Board of Directors of such companyor proprietor.

Where the registered person fails to pay the tax due along with interest, within the period, thefacility of export without payment of IGST will be deemed to have been withdrawn and if theamount mentioned in the said sub-rule is paid, the facility of export without payment ofintegrated tax shall be restored.

The provisions of this notification shall mutatis mutandis apply in respect of zero-ratedsupply of goods or services or both made by a registered person.

Central Government vide seeksto amend notification no. 32/2017-CT dated 15.09.2017 so as to add certain items to the listof “handicrafts goods”.

Central Government vide seeksto cross-empower State Tax officers for processing and grant of refund.

Central Government vide seeksto done away to pay tax on receipt of advance in case of the registered person whoseaggregate turnover in the preceding financial year did not exceed one crore and fifty lakhrupees or the registered person whose aggregate turnover in the year in which such personhas obtained registration is likely to be less than one crore and fifty lakh rupees and who did

Notification No. 36/2017 - Central Tax, dated 29.09.2017

Notification No. 37 /2017 – Central Tax, dated 04.10.2017

Notification No. 38/2017 – Central Tax, dated 13.10.2017




not opt for the composition levy under section 10 of the said Act as the class of persons whoshall pay the central tax on the outward supply of goods at the time of issuance of invoiceincluding in the situations of change in rates, and shall accordingly furnish the details andreturns.

Central Government videseeks to extend dates as under:

41 Furnishing the return by a composition supplier forthe period of July to September 2017

42 Furnishing the return by a person supplyingonline information and database access or retrievalservices from a place outside India to a non-taxableonline recipient for the month of July, 2017,August, 2017 and September, 2017.

43 Furnishing the return by an Input Service Distributorfor the months of July, August and September, 2017

44 Making a declaration, by the registered persons, whohave become eligible during the months of July,2017,August, 2017 and September, 2017, to the effect thatthey are eligible to avail the input tax credit.

Central Government vide seeksto amend Rule as under:

1. So as to file an intimation in FORM GST CMP-02, on or before the 31st day of March,2018, and to furnish the statement in FORM GST ITC-03 within a period of ninety daysfrom the day on which such person commences to pay tax under section 10. Suchpersons shall not be allowed to furnish the declaration in FORM GST TRAN-1 after thestatement in FORM GST ITC-03 has been furnished.

2. A registered person is supplying taxable as well as exempted goods or services or bothto an unregistered person, a single “invoice-cum-bill of supply” may be issued for allsuch supplies. Title of such invoice shall be "Consolidated Invoice".

3. The registered person who opts to pay tax under section 10 with effect from the firstday of a month which is not the first month of a quarter shall furnish the return in FORMGSTR-4 for that period of the quarter for which he has paid tax under section 10 andshall furnish the returns as applicable to him for the period of the quarter prior that.

4. Form GSTR 1 and 1A has been amended so as to include details regarding Zero ratedsupplies made to SEZ and deemed exports.

5. For the tax periods July, 2017 to September, 2017 and October, 2017 to December,2017, serial 4A of Table 4 i.e. invoice-wise details shall not be furnished in case ofsupplies other than under reverse charge and supplies made through e-commerceoperators.

Central Government vide Notification No. 46/2017 – Central Tax, dated 13.10.2017 seeks toincrease turn over limit to obtain composition scheme from 75 lakh to 100 lakh andfrom 50 lakh to 75 lakh in specified region.

Central Government vide seeksto amend Rule as under:

In respect of supplies regarded as deemed exports, the application may be filed by, - (a) therecipient of deemed export supplies; or (b) the supplier of deemed export supplies in caseswhere the recipient does not avail of input tax credit on such supplies and furnishes anundertaking to the effect that the supplier may claim the refund.

Central Government vide seeks

Notification No. 41, 42, 43 and 44/2017 – Central Tax, dated

13.10.2017




Not.No. Particulars Form Extended to:

GSTR 4 15.11.2017

GSTR 5A 20.11.2017

GSTR 6 15.11.2017

GST ITC 1 31.10.2017

to notify as deemed export as Table below:

1 Supply of goods by a registeredp e r s o n a g a i n s t A d v a n c eAuthorisation

2 Supply of capital goods by aregistered person against ExportPromot ion Cap i ta l GoodsAuthorisation

3 Supply of goods by a registeredperson to Export Oriented Unit

4 Supply of gold by a bank or PublicSector Undertaking specified inthe notification No. 50/2017-Customs, dated the 30th June,2017 (as amended) againstAdvance Authorisation

Central Government vide

seeks to specify evidences which arerequired to be produced by the supplier ofdeemed export supplies for claiming refund,namely:-

1 A c k n o w l e d g m e n t b y t h ejurisdictional Tax officer of theAdvance Authorisation holder orExport Promotion Capital GoodsAuthorisation holder, as the casemay be, that the said deemedexpor t supplies have beenreceived by the said AdvanceAuthorisation or Export PromotionCapital Goods Authorisationholder, or a copy of the tax invoiceunder which such supplies havebeen made by the supplier, dulysigned by the recipient ExportOriented Unit that said deemedexpor t supplies have beenreceived by it.

2 An undertaking by the recipient ofdeemed export supplies that noinput tax credit on such supplieshas been availed of by him.

3 An undertaking by the recipient ofdeemed export supplies that heshall not claim the refund inrespect of such supplies and thesupplier may claim the refund.

seeks to exempt all registered

Sl. No. Description of supply

Sl. No. Evidences

Notification No.

49/2017 – Central Tax, dated 18.10.2017

38/2017 – Central Tax(Rate), dated

13.10.2017


persons from tax payment under reversecharge under Section 9(4) of the CGST Act,2017 effective for the period from13.10.2017 to 31.03.2018.

Central Government vide

seeks to exempt from obtainingregistration to the persons making inter-State supplies of taxable services andhaving an aggregate turnover, to becomputed on all India basis, not exceedingan amount of twenty lakh rupees in afinancial year.

Notification No.

10/2017 – Integrated Tax, dated

13.10.2017

Contributed by :


CA. Abhay Desai

ARE WE ALL CULPRITS ?

INTRODUCTION

Under GST think of a scenario where asupplier has supplied taxable goods to arecipient and charged tax on the invoice.Supplier has shown the same in the GSTR –1 statement. Recipient in turn has confirmedthe same in the GSTR – 2 statement andavailed the input tax credit (‘ITC’). Supplierhowever has failed to pay the full tax andhence has not filed GSTR – 3. As per law,such discrepancy will be communicated toboth the parties and if rectification is notdone, ITC claimed by the recipient will bereversed along with interest and can bereclaimed only when the supplier pays thetax. Interest will be credited only to theextent of interest paid by the supplier. ThusGovernment thinks that non-payment of taxby the supplier is on account of connivancewith the recipient who intends to claim theITC without it being actually paid. Hence ITCmust be denied. Thus in eyes ofGovernment all such recipients are culpritsand they must do the work of Governmentand ensure that the suppliers pay the tax. Isbonafide recipient really a culprit when hehas paid the tax to the supplier but supplierhas failed to deposit the same ? Shouldrecipient be met with denial of credit onaccount of fault of the supplier ?Government thinks so, Delhi High Courtdoesn’t.

Two days back Hon. Delhi High Court delivered a very good judgment in the case of On QuestMerchandising India Pvt. Ltd. v. Government of NCT of Delhi (W.P.(C) 6093/2017 & CMNo.25293/2017) along with other petitions on the admissibility of ITC on bonafidepurchases where the sellers have not deposited the tax with the Government.

Several petitioners had made purchases from various registered dealers and had paid VATcharged on the invoice under Delhi Value Added Tax Act, 2004 (‘DVAT Act’) to such sellingdealers. Petitioners had availed input tax credit of such tax. Selling dealers had failed todeposit the tax with the Government. Department denied the input tax credit on the groundthat sellers had failed to deposit the tax.

Sec. 9(2) of DVAT Act sets out conditions under which input tax credit will not be allowed.Sub-clause (g) is relevant and hence the same is reproduced below:

“(g) to the dealers or class of dealerswith the Government or has been lawfully

adjusted against output tax liability and correctly reflected in the return filed for the respectivetax period”

Department contended based on the reading of Sec. 9(2)(g) above that ITC will be allowedonly if the tax charged in the invoice has been actually paid by the seller. Issue before theCourt was whether Sec. 9(2)(g) is arbitrary as it does not distinguish between bonafidepurchaser and a conniving purchaser and hence violates Article 14 of the Constitution ?

Hon. High Court read down the said clause by holding that the Department cannot invokeSec. 9(2)(g) to deny ITC to a purchasing dealer who has bonafide entered into a purchasetransaction with a registered selling dealer who has issued a tax invoice reflecting the TINnumber and where there is no mismatch of the transactions in Annexures 2A and 2B. In theevent that the selling dealer has failed to deposit the tax collected by him from the purchasingdealer, the remedy for the Department would be to proceed against the defaulting sellingdealer to recover such tax and not deny the purchasing dealer the ITC. Where, however, theDepartment is able to come across material to show that the purchasing dealer and theselling dealer acted in collusion then the Department can proceed under Section 40A of theDVAT Act. If the said clause is not read down in above manner, the entire provision wouldhave to be held to be violative of Article 14 of the Constitution. Reasoning of the Court toreach such conclusion is briefly discussed below:

1. As long as purchasing dealer has verified the TIN of the seller from the tax invoice issuedto him and has matched the transaction reported by seller in his Annexure 2B withAnnexure 2A, he cannot be expected to keep track of whether the selling dealer has infact deposited the tax collected with the Government or has lawfully adjusted it againsthis output tax liability.

2. Purchasing dealer would have no access to the return filed by the selling dealer sinceunder Section 98 (1) of the DVAT Act those particulars are meant to be confidential.Hence purchasing dealer cannot verify the fact that the seller has deposited the tax.

3. Department is not helpless if the selling dealer commits a default in either depositing orlawfully adjusting the VAT collected from the purchasing dealer. There are provisions inthe DVAT Act which empower the Department to proceed to recover the tax in arrearsfrom the selling dealer. There is also Section 40A, in terms of which, a purchasingdealer acting in connivance with a selling dealer can be proceeded against.

4. Note prepared for the Cabinet at the time of insertion of Sec. 9(2)(g) did not take intoaccount the practical difficulty that would be faced by the purchasing dealer in

FACTS

RELEVANT LEGAL PROVISION

ISSUE BEFORE THE COURT

JUDGMENT & REASONING

unless the tax paid by the purchasing dealer has

actually been deposited by the selling dealer


anticipating, even before entering into the transaction with the registered selling dealerholding a valid registration, that such selling dealer after collecting the tax from himwas either not going to deposit it with the Government or lawfully adjust it against hisoutput tax liability.

5. Sec. 9(2)(g) does not distinguish between bonafide purchasing dealers and those thatare not. Despite the fact that the purchasing dealer would not have acted in connivancewith the selling dealer, he is met with the same fate as that of a purchasing dealer whoacts with connivance. There was need to restrict the denial of ITC only to the sellingdealers who had failed to deposit the tax collected by them and not punish bonafidepurchasing dealers. The latter cannot be expected to do the impossible. It is trite that alaw that is not capable of honest compliance will fail in achieving its objective. If itseeks to visit disobedience with disproportionate consequences to a bona fidepurchasing dealer, it will become vulnerable to invalidation on the touchstone of Article14 of the Constitution. Law can be struck down only on the ground of arbitrarinessthereby attracting Article 14 of the Constitution.

6. Department had relied on the judgment of Hon. Bombay High Court in the case of M/s.Mahalaxmi Cotton Ginning Pressing & Oil Industries v. State of Maharashtra (2012) 51VST 1 (Bom.). In this case Court upheld the validity of Sec. 48(5) of the MVAT Actwhich granted ITC only to the extent of the tax actually paid by the selling dealer.Relevant provision is reproduced below for ready reference:

“Sec. 48(5): For the removal of doubt it is hereby declared that,

if any, under this Act or any earlier law, intothe Government Treasury except to the extent where purchase tax is payable by theClaimant dealer on the purchase of the said goods effected by him”

Delhi High Court distinguished the provision of Sec. 48(5) of the MVAT Act with Sec.9(2)(g) of DVAT Act on following grounds:

a. Sec. 48(5) of the MVAT Act requires the selling dealer to have “actually paid” thetax collected by him with the Government for the purposes of the purchasing dealeravailing ITC, whereas Sec. 9(2)(g) of the DVAT Act requires the selling dealer toeither “deposit” the tax collected or lawfully adjust it against his output tax apartfrom correctly reflecting the sale in his returns.

b. Bombay High Court was concerned with a situation where the purchase transactionsdisclosed by the purchasing dealer did not match the sale transactions disclosedby the selling dealer. In contrast, in the cases before Delhi High Court there is noinstance where Annexures 2A and 2B have not matched.

c. Bombay High Court decision was based in the context that liability to pay tax is ofthe seller. Seller cannot obviate his liability to pay tax on his “sale transaction” byclaiming set off and placing the responsibility to recover tax on an earlier link in thechain on the Revenue. It proceeded on the basis that the State Legislature is not“bound to grant a set off”. It further stated that the Legislature cannot be“compelled to grant a set-off, ignoring the conditions which it imposes”. Delhi HighCourt observed that in the present case all the conditions imposed for grant of ITChas been complied by the purchaser. ITC cannot be denied merely because sellerhas failed to comply with the condition of depositing the tax which is not in controlof the purchaser.

d. Delhi High Court also found that there is no provision in the MVAT Act similar toSec. 40A of the DVAT Act. Sec. 40A of the DVAT Act takes care of a situation wherethe selling dealer and the purchasing dealer act in collusion with a view to defraudthe Revenue.

7. Delhi High Court observed that an attempt must be made to save the law from invalidity

in no case the amount

of set off or refund on any purchase of goods shall exceed the amount of tax in

respect of the same goods, actually paid,

as violative of Article 14 by readingdown the concerned provision by anyknown interpretational device. Henceto save the provision, Court readdown the said clause by holding thatthe Department cannot invoke Sec.9(2)(g) to deny ITC to a purchasingdealer who has bona fide entered intoa purchase transaction with aregistered selling dealer who hasissued a tax invoice reflecting the TINnumber and where there is nomismatch of the transactions inAnnexures 2A and 2B. In the event thatthe selling dealer has failed to depositthe tax collected by him from thepurchasing dealer, the remedy for theDepartment would be to proceedagainst the defaulting selling dealer torecover such tax and not deny thepurchasing dealer the ITC. Where,however, the Department is able tocome across material to show that thepurchasing dealer and the sellingdealer acted in collusion then theDepar tment can proceed underSection 40A of the DVAT Act.

Sec. 16 of the Central Goods & Services Tax(“CGST”) Act, 2017 contains provisionsrelated to eligibility and conditions for takingthe ITC. Condition relevant for ourdiscussion is contained in Sec. 16(2)© andhence the same is reproduced below:

“Sec. 16(2) Notwithstanding anythingcontained in this section, no registeredperson shall be entitled to the credit of anyinput tax in respect of any supply of goods orservices or both to him unless, —

(c) subject to the provisions of section 41,

to the Government,either in cash or through utilization of inputtax credit admissible in respect of the saidsupply; and”

Hence ITC is available only if the tax chargedhas been actually paid. Further Sec. 42contains provisions related to matching,reversal and reclaim of ITC. As per Sec.42(1)(a) details of every inward supplyfurnished by a registered person for a taxperiod shall, in such manner and withinsuch time as may be prescribed, be

APPLICABILITY UNDER GST

the tax charged in respect of such supply

has been actually paid


matched with the corresponding details ofoutward supply furnished by thecorresponding supplier in his valid return forthe same tax period or any preceding taxperiod.

As per Sec. 2(117) of the CGST Act, 2017 avalid return means a return furnished undersub-section (1) of section 39 on which self-assessed tax has been paid in full. Henceunless tax is not paid in full, return shall notbe regarded as valid return. An invalid returnwill not be processed.

Thus filing of GSTR – 2 by matching theinvoices will still result in provisional ITC.This is because if tax is not paid by thesupplier and hence GSTR – 3 is not filed, asper Sec. 42(3), such discrepancy will becommunicated to the supplier as well as therecipient. The amount in respect of whichany discrepancy is communicated is notrectified by the supplier in his valid return forthe month in which discrepancy iscommunicated shall be added to the outputtax liability of the recipient, in such manneras may be prescribed, in his return for themonth succeeding the month in which thediscrepancy is communicated.

Whether the above provisions are violativeof Article 14 as arbitrary ?

Let us compare the provisions under GST tothe reasoning given by Delhi High Court inthe context of DVAT Act:

1 As long aspurchasing dealer has verified the TINof the seller from the tax invoice issuedto him and has matched the transactionreported by seller in his Annexure 2Bwith Annexure 2A, he cannot beexpected to keep track of whether theselling dealer has in fact deposited thetax collected with the Government orhas lawfully adjusted it against hisoutput tax liability.

Oncethe recipient has matched histransaction with that of supplier inGSTR 2, he cannot be expected to keeptrack of whether the supplier hasdeposited the tax by utilizing admissiblecredit. Recipient has no informationabout the fact that whether the supplierhas paid the tax from the credit which

REASONING UNDER DVAT :

APPLICABILITY UNDER GST :

was admissible to him or from his inadmissible credit (because supplier’s supplier hasnot paid the tax).

2 Purchasing dealer would have no access to the return filedby the selling dealer since under Section 98 (1) of the DVAT Act those particulars aremeant to be confidential.

As per Sec. 152 read with Sec. 150 of the CGST Act,2017, no information of an individual return received from GSTN shall be disclosed.Hence recipient would have no access to determine whether the supplier has paid tax bycash or utilizing admissible credit.

3 Department is not helpless if the selling dealer commits adefault in either depositing or lawfully adjusting the VAT collected from the purchasingdealer. There are provisions in the DVAT Act, referred to hereinbefore, which empowerthe Department to proceed to recover the tax in arrears from the selling dealer. There isalso Section 40A, in terms of which, a purchasing dealer acting in connivance with aselling dealer can be proceeded against.

As per provisions of Chapter XV of the CGST Act, 2017department has ample power to recover the tax acknowledged in GSTR 1 filed by therecipient. Further if only tax invoice (‘bogus invoice’) has been issued but goods orservices have not been provided, Department has power to deny the ITC u/s 16(2)(b) ofthe CGST Act as it allows ITC only if goods or services have been received.

4 Note prepared for the Cabinet at the time of insertion ofSec. 9(2)(g) did not take note of the practical difficulty that would be faced by thepurchasing dealer in anticipating, even before entering into the transaction with theregistered selling dealer holding a valid registration, that such selling dealer aftercollecting the tax from him was either not going to deposit it with the Government orlawfully adjust it against his output tax liability.

Even GST law has not appreciated the practicaldifficulties which will be faced by tax payers when despite matching, ITC is deniedmerely on the ground that the supplier has not made the payment which is not in thehands of the recipient.

5 Sec. 9(2)(g) does not distinguish between bonafidepurchasing dealers and those that are not. If a provision seeks to visit disobedience withdisproportionate consequences to a bona fide purchasing dealer, it will becomevulnerable to invalidation on the touchstone of Article 14 of the Constitution. Law can bestruck down only on the ground of arbitrariness thereby attracting Article 14 of theConstitution.

Sec. 16(2)(c) also does not distinguish betweenbonafide recipient and someone who acts in connivance and claims ITC withoutreceiving the goods or services and depositing the tax. Hence the same is arbitrary.

6

Judgment of Hon. Bombay High Court in the case of M/s. Mahalaxmi Cotton GinningPressing & Oil Industries v. State of Maharashtra shall not apply in the context of Sec.9(2)(g).

Delhi High Court has distinguished the judgment ofBombay High Court on four grounds. Let us see applicability of same under GST:

a. Provisions of Sec. 48(5) of MVAT Act provides that ITC cannot exceed the amountactually paid whereas Sec. 9(2)(g) of DVAT provides that one of the condition forclaiming ITC is that the selling dealer must deposit the tax. Hence Delhi High Courtconcluded that the emphasis of the condition is on the seller to deposit the tax whichis not in the hands of the purchaser unlike MVAT where emphasis is on the fact thatITC claimed cannot exceed the tax actually paid. Under GST, provisions of Sec.









REASONING UNDER DVAT



SPIRITUALITY, SUSTAINABILITY ANDCORPORATE RESPONSIBILITY

Contributed by :can be reached at

[email protected]

CA. Bimal R. Bhatt

Our Sustainable Evolution

‘Sustainability’ has become a catchword in contemporary thought. According to presentunderstanding, in simple terms, sustainability means to attune human life with the laws ofNature in such a way that it leads to sustainable economic development. However, we need adeeper and broader understanding of sustainability based on a better understanding of Manand Nature. Here comes the role of spirituality and the spiritual vision of ancient and modernseers in steering our sustainable development. According to this spiritual vision, neitherhuman nor Nature is entirely physical. The human organism is multidimensional, made ofphysical, psychological and spiritual energies, which are in turn derived from correspondingdimensions in universal Nature; or in other words, for our sustainable evolution we need agreater ecology which can help us to attune our outer life not only with the laws of outerphysical Nature but also to synchronize our inner being with the laws of the psychologicaland spiritual dimensions of Nature. This cannot be done entirely by the scientific and rationalmind. We must have the spiritual intuition of the seer and the sage. If we do not have it, wehave to draw upon the spiritual wisdom of the past and the present seers, and based on it,use our scientific, rational and pragmatic mind to arrive at a feasible framework of thoughtand practice.

Here comes the importance of the ethical and spiritual principles and practices discoveredby the spiritual traditions of the world, especially the Indian spirituality and the great scienceof yoga. What else are modern ecological practices such as recycling to our physicalsustainability or the path of yoga is to our psychological and spiritual sustainability? In thisspiritual perspective, we have to replace the term ‘sustainable development’ by the term‘sustainable evolution’. In modern thought, the term ‘development’ is associated witheconomic and social development. But economic and social development, even when it is

pursued with ecological principles, is notsufficient to steer the evolution of humanrace and our planet to our higher and futuredestiny. The prophetic insights ofevolutionary thinkers such as Sri Aurobindoand Teilhard de Chardin indicate that thefuture evolution of our race lies not in thematerial, economic or even the ecologicaldomain but in the moral, psychological andspiritual realms. This requires a rethinking ofthe aims of development, which is alreadyhappening.

One of the most forceful exponents of thisnew thinking in economics is the Swedisheconomists E. F. Schumacher. In his well-known and influential book Small IsBeautiful, Schumacher presents a powerfulcritique of the traditional paradigms ofdevelopment based on endless materialgrowth and consumption. He calls modernhumanity to return to the eternal values oftruth, beauty and goodness and to Buddhisteconomics which aims at ‘maximum well-being with minimum consumption’ and awork culture where there is less toil foracquiring more and more material wealthand as a result ‘more time and strength isleft for artistic creativity’.1

Commenting on the biblical passage “Seekfirst the kingdom of God, all else will beadded on to you”, Schumacher argues thatthe modern humanity, afflicted withmaladies like ‘terrorism, genocide,breakdown, pollution, exhaustion’, is insuch a condition that “unless you seek firstthe kingdom of God, these other thinkswhich you need will cease to be available toyou”. In the concluding paragraph of hisbook, Schumacher delivers the followingmessage to modern humanity:

“The type of realism which behaves as if thegood, the true, beautiful were too vague andsubjective to be adapted as the highest aimsof social and individual life or the automaticspin-offs of the successful pursuit of wealthand power, has been aptly called ‘crack-potrealism’… People ask ‘What can I actuallydo’. The answer is as simple as it isdisconcerting; we can each of us, work toput our own inner house in order. Theguidance we need for this work cannot befound in science or technology—but it can

The New Thinking

16(2)(c) is similar to Sec. 9(2)(g) of DVAT. Here also emphasis of the condition isthat the tax charged in the invoice has been actually paid by the supplier. Hencejudgment of Bombay High Court shall not apply to GST provisions.

b. Bombay High Court was concerned with a scenario where there was a mismatch.Before Delhi High Court there was no mismatch. Under GST, once GSTR 2 has beenfiled and the transaction is matched, ITC cannot be denied merely because thesupplier has not paid the tax.

c. Delhi High Court observed that all the conditions within the power of purchaser havebeen complied. Hence ITC cannot be denied for non-payment by seller which is notin control of purchaser. Even under GST, once a legitimate ITC has been claimed,recipient has complied with all the conditions which are within his control.

d. Delhi High Court also found that there is no provision in the MVAT Act similar toSection 40A of the DVAT Act. As per Sec. 16(2)(b), department has power to denyITC if goods or services has not been actually received and ITC has been claimedthrough collusion between supplier and recipient by issuing a bogus invoice.

From the above one can observe that the reasoning given by Delhi High Court shall applyeven to the provisions under GST. Once a transaction is matched in GSTR 2 with GSTR 1 ofthe supplier, ITC should not be denied to a bonafide recipient if the tax has not been paid bythe supplier. Department has enough power to recover the tax from the supplier. Let us hopethat the Apex Court will also see the provisions in the same way.

CONCLUSION


Cherising Memories...Lecture Meeting on “Filing ofGSTR - 2 on 25-10-2017”

CA.Punit Prajapati

WICASA EVENTS for the month of October-2017

be found in the traditional wisdom of mankind.”2

In the field of environment also many thinkers have come to a moreor less same conclusion as Schumacher. One of them is Dr. MauriceStrong, a former chief of the UN Environmental Agency, who states:

“We desperately need a new body of ideas, a new synthesis. Thismust centre on the need for a new attitude towards growth…. It willrequire a major transition to a less physical kind of growth, relativelyless demanding of energy and raw materials. It will be one, which isbased on an increasing degree on the satisfaction of people’sintellectual, moral and spiritual needs and aspirations in such fieldsas culture, music, art, literature and other forms of individual self-development and fulfillment. These are the areas in which man canachieve his highest level of growth in human terms.”3

This means priorities of sustainable development have to shift frommaterial, economic and ecological sustainability to psychologicaland spiritual sustainability. This requires a human development andorganizational strategy based on the principles of yoga. But there ismuch misunderstanding on the meaning of yoga. The popularunderstanding of yoga tends to equate yoga with the asanas ofHatha Yoga, but the asanas are a very secondary and physicalaspect of yoga. The true meaning and principle of yoga may bedescribed as ‘growth of conscious through accelerated innerevolution’. Yoga speeds up the inner progress of the individualthrough a focused concentration of the psychological energies inthe human being. The principles of yoga can also be applied to theinner development of the collective, which has not been done so farin the history of humanity, but it can be an important part of theevolutionary experiments of the future.

As we grow in consciousness through the path of yoga, one day wewill rediscover the greatest ecological principle discovered by Indianseers—‘unity of life’ and ‘oneness of all existence’. Modern sciencehas discovered this unity in the form of connectedness and

The Law of Oneness: Spiritual Source of Our Sustainability

interdependence of things at the physical level—new physics at thesubatomic level and modern ecology at the biological or macro levelin physical Nature. Indian seers perceived this in its essence as aUnity of Consciousness pervading all the levels ofcreation—physical, vital, mental and spiritual.

In our individual human existence we can feel this unity in our ownhighest self beyond our mind, where we can experience all othersand all creation as part of our own self, as concretely as we feel ourbody as our own self. This is our highest spiritual destiny and tomake our whole life and every activity of our life into a conscious andprogressive journey towards this Unity of Consciousness is the aimof yoga and the path of evolutionary sustainability.

In this spiritual perspective, corporate social responsibility has to bebased on this perception of the Unity of Consciousness and theconnectedness and interdependence of all life. In practical terms, itmeans our individual well-being is dependent on the well-being of allothers and the well-being of the larger whole of life. An act ofgoodness which brings wellness to others returns upon me,enhancing my own wellness because I am one with all others.Similarly an act of exploitation or violence also returns upon me withpainful consequences. The other aspect of corporate responsibilityis towards the people who work in the organization. A companywhich looks towards the future has to regard their higher evolutiontowards their ‘Self of Unity’ as a part of their corporate responsibilityand create an outer environment favourable to this evolution.

1. E. F. Schumacher, Small Is Beautiful, Harper Perennial: NewYork (1973/2010), pp. 44–52.

2. Ibid.

3. Maurice Strong, ‘New Growth Model’, in Ritchie Calder (ed.),Future of a Troubled World, Heinemann, London, 1983, p.141.

References-

(Source: Fourth Dimension Inc.)

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