Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Forum Articles Highlights TMI Notes SMS News What's New Calendar Imp. Links Database More...
Extracts
Home List
← Previous Next →

Dell India Pvt. Ltd. Versus Commissioner Of Service Tax, Bangalore

Adjustment of excess paid service tax – rule 6(3) of STR, 1994 – change of rate of tax – short-payment of service tax – demand of tax, interest and penalty – alternative treatment advance payment of service tax - rule 6(1A) of STR, 1994 – Rules 4A and 4B of STR, 1994 - Held that: - when the assessee paid excess amount of tax to the exchequer, law of the land is very clear under Article 265 of the Constitution of India, which says that “No tax shall be levied or collected except by authority of l .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ater period to the appellant assessee – appeal allowed – decided in favor of appellant. - ST/1140/2012-SM - Final Order No. 22132/2015 - Dated:- 1-12-2015 - Ashok K. Arya, Member (T) REPRESENTED BY : Shri L.S. Karthikeyan, Advocate, for the Appellant. Shri Ajay Saxena, Commissioner (AR), for the Respondent. [Order]. - Both the parties have been heard in detail. 2. The issue concerns with the adjustment of service tax which assessee claims they paid in excess, when the rate of taxation had be .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

that the appellant was not entitled to make this adjustment on their own, thus this adjustment which Department quantified as ₹ 6,15,083/- treated it as short payment of service tax and issued the show-cause notice for recovery of the same. 2.1 Revenue through its Order-in-Original dated 25-4-2011 issued by Addl. Commissioner confirmed this demand of service tax along with interest and penalties under Sections 76 & 77 of the Finance Act, 1994. 2.2 The assessee went in appeal to the Com .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pply. Learned advocate points out that some of their customers objected to higher rate of service tax and thereafter the assessee made rectification and adjusted this excess charged from the customers and excess payment made to the exchequer during subsequent periods by issuing credit notes to their customers and by raising fresh invoices by applying correct rate of tax. He also mentions that they revised their ST-3 returns for the said period by showing this adjustment by way of reduction in va .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

out payment of service tax in advance to the credit of the Central Government; saying that as they have paid service tax on accrual basis (i.e. in advance) without waiting for the receipt of the service tax from their customers, this situation should be treated as payment of service tax in advance and it could be treated as service tax paid in advance and, therefore, adjustment during the subsequent period is allowed as per the provisions of Rule 6(1A) of the Service Tax Rules, 1994. Learned adv .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

period. He also cites the decision of Hon ble High Court of Karnataka in the case of CCE, Mangalore-3 v. Solaris Chemtech Ltd. - 2011 (273) E.L.T. 191 (Ker.) saying that adjustment of payment of service tax was applicable and they were entitled to the amount paid in excess to the exchequer. 4. Learned AR, Shri Ajay Saxena appearing for the Revenue argues that the appellant is not at all entitled to the suo motu adjustment of excess payment of service tax as they are neither strictly covered unde .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

further points out that this case is also not covered under the provisions of Rule 6(4B) of the Service Tax Rules as whenever there is excess collection of the amount of tax payable, in order to make the adjustment of excess under Rule 6(4B), certain conditions are to be followed and complied with, which the appellant has not done. 4.3 The learned AR argues further that the subject matter concerning the appellant is also not covered under the provisions of Rule 6(1A) of S.T.R., 1994 as even if w .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of the submissions of both the sides, it is a fact that the appellant paid to the exchequer excess amount of service tax on account of applying higher rate of taxation (i.e. 12.36%) instead of correct rate of tax 10.3% as the rate had been reduced from 12.36% to 10.3% on 24-04-2009. The appellant had continued to raise their invoices to their customers at the old rate of 12.36% during the relevant period and accordingly paid excess service tax to the exchequer at the said excess rate of 12.36%. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t s case cannot be covered under above quoted Service Tax provisions of 1994 and it was imperative on the part of the appellants to file refund claim within the prescribed limit as per the provisions of law of Service Tax. 6. After careful consideration of the facts on record and the circumstances cited by the appellant, when the assessee paid excess amount of tax to the exchequer, law of the land is very clear under Article 265 of the Constitution of India, which says that No tax shall be levie .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ifferent Rules of S.T.R., 1994 i.e. Rule 6(3), Rule 6(4A), Rule 6(4B) and Rule 6(1A) of the Service Tax Rules, 1994. But when one sees the combined effect of the provisions of S.T.R., 1994 just quoted above, the implications are that the present appellant has to be given the benefit of adjustment of excess service tax paid by them during the relevant period i.e. April 2009 to September 2009. Revenue is also in agreement with the fact that there had been excess payment of service tax during the r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

above (Service Tax Rules) needs to be taken. I am accordingly taking the combined and liberal view of the Rules quoted above, whereunder the adjustment of the excess service tax paid would be allowed during the later period to the appellant assessee. Here I take the support from the decision of CESTAT, New Delhi in case of General Manager (CMTS) v. CCE, Chandigarh (supra). It is made clear that though this case law of CESTAT, New Delhi talks about excess payment of service tax, the issue was fa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

so when we consider the combined effect of the relevant provisions of Service Tax Rules, 1994 quoted above. The CESTAT, New Delhi s decision quoted above in this regard has discussed various provisions of Service Tax Rules, 1994. This discussion make the position more clear for the purpose of present facts. Here to have more clarity, the following is quoted from this decision :- 7.1 Thus sub-rule (4A) read with Rule (4B) (of Service Tax Rules, 1994) would apply to a situation where an assessee .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the actual service tax liability and which can always be adjusted against his service tax liability for other months as there is no unjust enrichment angle involved. For example, if against actual payments of ₹ 4 crore received by an assessee in a particular month against services provided, on which his service liability @ 10% adv. is ₹ 40 lakhs, he has paid tax of ₹ 50 lakhs on the basis of his estimated receipt of rupees five crores during the month, the excess tax payment of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

liability, which he is liable to pay in subsequent period, subject to the condition that he intimates the details of the amount paid in advance to the Jurisdictional Superintendent of Central Excise. The excess payment referred to in sub-rule (4A), read with sub-rule (4B), is like advance payment under sub-rule (IA) of Rule 6. There is no condition in Rule 6(4A) read with Rule 6(4B) providing that for availing of the adjustment facility, the assessee must have opted for centralized registration .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

  ↓     Latest Happening     ↓  

Forum: GST rates on mobile recharge business

Forum: Cess paid instead of SGST

Circular: Constitution of National Anti-profiteering Authority (NAA) under GST-reg.

Forum: import purchase

Highlight: Sharing of expenses - BAS - promotion of business of group companies - sharing of expenditure for common facilities cannot be treated as service by one to another in such arrangement.

News: RBI Reference Rate for US $

Forum: 3B mistake

Forum: Input credit of gst paid on urd

Article: Credit of unsold stock [Section 140(3)] - Actual Credit as well as Notional Credit - Part-I - GST Transitional provisions

Circular: Certain Clarifications sought on Construction Services provided in the Real Estate Sector – reg.

Forum: transfer of shares

Forum: Input tax credit

News: Anti-dumping duty on import of bus/truck tyres from China

News: Fast-track GST refund, else ₹ 65K cr may be stuck: Exporters

Highlight: It is open to the Settlement Commission to use best judgment in arrival of the figure. Nonetheless it has to explain the manner in which the best judgment figure has been arrived at by the Settlement Commission - HC

Highlight: Deemed dividend u/s 2(22)(e) - advances given to societies - in the absence of legal right of the assessee in the said society the amount advanced cannot be treated as deemed income.

Highlight: When electrical installations are treated as plant and machinery the depreciation has to be allowed @ 25% as per provisions contained u/s 32

TMI Note: Capital Gain - transfer of right in the land or transfer of land itself - addition u/s 50C - Harassment to the honest tax payers

Highlight: Option to avail composition scheme under GST by electronically filing an intimation in FORM GST CMP-02 and FORM GST ITC-03 upto 30-9-2017 - See Rule 3(3A)

TMI Note: Does ICDS apply for the purposes of computing exemption u/s 11 to 13.

Highlight: Voluntary Reporting of Estimated Current Income and Advance Tax Liability - CBDT issues draft notification

TMI Note: Certain ICDS provisions are inconsistent with judicial precedents. Whether these judicial precedents would prevail over ICDS.

Highlight: Provisions of ICDS shall prevail w.e.f. AY 2017-18 to the transactional issues dealt therein over earlier judicial pronouncements.

Notification: Levy of anti dumping duty on New/unused pneumatic radial tyres with or without tubes and/or flap of rubber (including tubeless tyres) having normal rim dia code above 16 originating in, or exported from China PR

News: Voluntary Reporting of Estimated Current Income and Advance Tax Liability

TMI Note: In case of conflict between ICDS and other specific provisions of the Income-tax rules, 1962 governing taxation of income like rules 9A, 9B etc. of the Rules, which provisions shall prevail.

TMI Note: Does ICDS apply to computation of Minimum Alternate Tax (MAT) u/s 115JB of the Act or Alternate Minimum Tax (AMT) u/s 115JC of the Act.

TMI Note: Where a term has not been defined under ICDS, nor under the Act, but has different interpretations given to it by the courts in tax cases, and in ICAI Accounting Standards, which interpretation would prevail while interpreting ICDS.

TMI Note: Whether the provisions of ICDS apply to a non-resident who claims the benefit of a double taxation avoidance agreement (DTAA).

TMI Note: In case any of the ICDS provisions is contrary to a circular or press release issued by the CBDT, which would prevail over the other.

TMI Note: ICDS-I requires disclosure of significant accounting policies and other ICDS requires specific disclosures. Where is the taxpayer required to make such disclosures specified in ICDS.

Notification: Income Computation and Disclosure Standards (ICDS) - New ICDS to be effective from AY 2017-18

News: RBI Reference Rate for US $

Highlight: GST - Detention of goods under transport - discrepancy in documents - the statutory provisions provide a mechanism for adjudication following detention of goods including for the provisional release thereof pending adjudication - HC

Highlight: Reassessment - first few paragraphs of the assessment order dealt with objections and disposed of accordingly - Unfortunately, the manner in which the AO has decided the issue is wholly unsustainable in law - HC

Highlight: Business expenditure u/s 37 - liquidated damage - breach of contract terms - Expenditure was not incurred for any purpose which is an offence or which is prohibited by law - cannot be disallowed - HC

Highlight: Valuation - inclusion of reimbursement of expenses - managing participation of clients in certain mela, fairs, promotional activities etc. - They are liable to service tax on the gross amount received - They cannot restrict their tax liability to only agency commission

Highlight: TDS liability - ITAT confirmed the liability - We do not see how it is possible for us to uphold the order of the Tribunal and when it purports to decide two Appeals of the Revenue by single paragraph conclusion - HC

Highlight: Reopening of assessment - sufficiency of material available with the AO to form a belief that income chargeable to tax had escaped assessment - bogus purchases - seller refused to respond - notice would not be interfered with - HC

Highlight: Exemption u/s 11 - education activities - transport and hostel facilities surplus cannot be considered as business income of the assessee society

News: Draft Notification for insertion of new rule 39A in the Income-tax Rules, 1962 – comments and suggestions-reg.

Highlight: Genuineness of labour wages expenses, embroidery charges, fabrication expenses etc. - getting work done through small workmen who do not have any permanent place of residence - disallowance of ad hoc expenditure deleted.

Highlight: Project import - Since the goods were never used for the purpose for which it was imported, the actual user condition has been violated - Redemption fine and penalty imposed.

Highlight: Penalty u/s 112 (a) - CHA - Lack of due diligence and failure to take more precautions can not, by itself, bring in penal consequences

Highlight: Import of services - GST - The fact that those services were received outside India will not change the fact that the services have been paid for by the beneficiary appellant, who is located in India. - Demand confirmed.

Notification: SEZ for IT/ITES at Madhurwada Village, Visakhapatnam District in the State of Andhra Pradesh - denotified.

Highlight: Merely because payment is received in Indian rupee, it cannot be said that payment against export has not been received in convertible foreign exchange.

Highlight: Merely vehicle numbers was not mentioned on the invoices cannot be the reason to deny Cenvat Credit

Highlight: Extension of time limit for submitting the declaration in FORM GST TRAN-1 under rule 120A of the Central Goods and Service Tax Rules, 2017 - Circular

Circular: Extension of time limit for submitting the declaration in FORM GST TRAN-1 under rule 120A of the Central Goods and Service Tax Rules, 2017



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version