Service Tax - Audit by CAs - Solution worse than Problem
08.12.2014
Monday
IT is said that:
For every problem, there is one solution that is simple, neat, and wrong.
The more directives you issue to solve a problem, the worse it gets.
There is a solution to every problem; the only difficulty is finding it.
There is no problem, however complicated, which, when you look at it in the right way, did not become still more complicated.
By using your intelligence you can sometimes make your problems twice as complicated.
The issue is - Audit of Service Tax assessees by the departmental officers or CAG's Audit Party or Chartered Accountants/Cost accountants. Rule 5A(2) of the Service Tax Rules, mandates the assessees to provide records to the Departmental officers/CAG Audit. In recent times, this provision has been challenged in several High Courts and several High Courts have granted interim relief by barring audit.
It was only on Friday that DDT mentioned about the latest decision of the Gujarat High Court preventing the CAG from conducting the audit of the Service Tax assessees. (DDT 2490)
As is well known the Delhi High Court in the case of Travelite (India) - 2014-TIOL-1304-HC-DEL-ST held that there is only provision in Chapter V of the Finance Act on scrutiny and audit of records of the assessee and that is Section 72A of the Finance Act, 1994 according to which the audit can be conducted only by Chartered Accountants or Cost Accountants in the circumstances specified therein.
The CBEC seems to have reconciled to the fact that there is some lacuna in the law and in a Circular No. 986/10/2014-CX., dated, October 9, 2014 clarified that the Delhi High Court order quashed the Service Tax rule but it did not deal with the issue of audit in Central Excise at all. So, the Board tacitly admitted that because of the Delhi High Court order Service Tax audit cannot be done. But in spite of Rule 5A(2) being quashed by the Delhi High Court, Commissionerates and CAG's Audit continued to do their audit. And the Government also did not keep quiet. The Delhi High Court decision is challenged in the Supreme Court.
And suddenly, in a flash of wisdom, the Board has amended Rule 5A(2). The rule as it existed prior to the amendment and after amendment is tabulated below. The portions marked in red are deleted from the existing rule and the portions marked in green are added.
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The Rule before amendment
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The Rule after amendment
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(2) Every assessee shall, on demand, make available to the officer authorised under sub-rule(1) or the audit party deputed by the Principal Commissioner or Commissioner or the Comptroller and Auditor General of India within a reasonable time not exceeding fifteen working days from the day when such demand is made, or such further period as may be allowed by such officer or the audit party, as the case may be,-
(i) the records as mentioned in sub-rule (2) of rule 5;
(ii) trial balance or its equivalent; and
(iii) the income-tax audit report, if any, under section 44AB of the Income-tax Act, 1961 ( 43 of 1961),
for the scrutiny of the officer or audit party, as the case may be.
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(2) Every assessee, shall, on demand make available to the officer empowered under sub-rule (1) or the audit party deputed by the Commissioner or the Comptroller and Auditor General of India, or a cost accountant or chartered accountant nominated under section 72A of the Finance Act, 1994,-
(i) the records maintained or prepared by him in terms of sub-rule (2) of rule 5;
(ii) the cost audit reports, if any, under section 148 of the Companies Act, 2013 (18 of 2013); and
(iii) the income-tax audit report, if any, under section 44AB of the Income-tax Act, 1961 (43 of 1961),
for the scrutiny of the officer or the audit party, or the cost accountant or chartered accountant, within the time limit specified by the said officer or the audit party or the cost accountant or chartered accountant, as the case may be.
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Does this solve the problem?
Rule 5A was silent about audit by the CAs and Cost Accountants. May be the Board thought at least to include the CAs and Cost Accountants in Rule 5A before any assessee could get the audit notice under Section 72A quashed on this ground.
When the High Court says that Rule 5A(2) itself is not valid, will adding another set of auditors to the present set of illegal auditors, solve the problem? Until the Delhi High Court order is stayed or set aside, this Rule 5A(2) does not exist and the Government cannot amend a rule that does not exist.
And they forgot the Principal Commissioner in the amendment. A retrospective amendment in the making in the 2015 budget?
Please see more details in our ST se GST tak column.
Please also see:
1. Should AG's Audit be allowed to visit factories and Premises of Service Tax Assessees? (DDT 1298)
2. AG's Audit Visit to Factories and Premises of Assessees? (DDT 1776)
3. CAG not authorised to visit factory of assessee in private sector
4. No Audit of Private Enterprises by AG's Audit - Calcutta High Court (DDT 1951)
5. Karnataka High Court grants Interim Stay against CAG Audit of Service Tax Assessee - DDT 2103 - 13.05.2013
6. Audit under Service Tax only by Chartered Accountants - not by officers of Department - High Court - DDT 2283 - 30.01.2014
7. Even if Service Tax Audit cannot be done, there is no hurdle for Central Excise Audit - CBEC - DDT 2453 10.10.2014
Notification No. 23/2014-SERVICE TAX, Dated: December 05, 2014
Service Tax - Audit by CAs - Board's official clarification on way
WE understand that the Board is ready to issue a Circular clarifying the above notification. The Circular will most probably be issued today. We will bring you the Board's opinion as soon as it is revealed.
Cheat Funds? No Service Tax? Supreme Court rejects SLP against AP High Court Order
SERVICE Tax on Chit Funds was introduced by a backdoor method with a Circular No. 96/7/2007-ST, dated, 23.08.2007, wherein the Board thought that Chits are covered under "banking and other financial services". This Circular was quashed by the AP High Court in 2008-TIOL-502-HC-AP-ST. Revenue has taken this to the Supreme Court where it is still pending.
Come 2012 (the negative list era of taxation) and the Babu failed again in drafting law. The Education Guide on Service Tax does not really educate, but only tells what the Babu wanted the law to be. Para 2.8.2 of the Education Guide reads:
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2.8.2 Would a business chit fund come under 'transaction only in money'?
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In business chit fund since certain commission received from members is retained by the promoters as consideration for providing services in relation to the chit fund it is not a transaction only in money. The consideration received for such services is therefore chargeable to service tax.
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But, the Delhi High Court thought otherwise. While disposing of the Writ Petitions filed by Delhi Chit Fund Association, the High Court held that - In a chit business, the subscription is tendered in any one of the forms of 'money' as defined in section 65B(33). It would, therefore, be a transaction in money. So considered, the transaction would fall within the exclusionary part of the definition of the word 'service' as being merely a transaction in money. This would be the result if the argument that the exclusionary part of the definition in clause (a) is considered to have been enacted ex abundant cautela; if the argument based on Explanation 2 read with the exclusionary part of the definition is accepted as correct, even then the services rendered by the foreman of the chit business for which a separate consideration is charged, not being an activity of the nature explained in the said Explanation, would be out of the clutches of the definition. Either way, there can be no levy of service tax on the footing that the services of a foreman of a chit business constitute a taxable service.- 2013-TIOL-331-HC-DEL-ST
The Supreme Court dismissed the Special Leave Petition against the Delhi High Court Judgement. - 2014-TIOL-23-SC-ST
In the meanwhile, following the Delhi High Court decision, the AP High Court held,
It appears that the same notification, which is challenged here was challenged before the Delhi High Court and by judgment dated 23.4.2013 rendered in the case of DELHI CHIT FUND ASSOCIATION vs. UNION OF INDIA & OTHERS in W.P. (C) 4512/2012, the Delhi High Court has quashed the said notification.
In view of the above judgment of the Delhi High Court, we are not required to once again quash the impugned notification. Obviously, the judgment of the Delhi High Court will be operating in the field unless and of course the same has not been upset or set aside by the Hon'ble Supreme Court.
The Department took even this case to the Supreme Court.
The Supreme Court in a recent order observed,
We do not find any reason to entertain this petition. The Special Leave Petition is, accordingly dismissed.
Will they keep quiet now or amend the Law again retrospectively in the 2015 budget?
Please See 2014-TIOL-97-SC-ST
FTP - Import policy of Worked monumental or building stone
EXISTING policy condition for the Exim Codes 6802 10 00, 6802 21 10, 6802 21 20, 6802 21 90, 6802 91 00 and 6802 92 00 of Chapter 68 is:
“Import permitted freely provided cif value is USD 60 & above per square metre.”
Now this is amended to read as:
"Import (maximum thickness of slab 20mm) permitted freely provided cif value is USD 60 & above per square metre."
That is now the import is permitted freely if cif value is USD 60 and above per square meter with the condition that maximum thickness of slab be 20 mm.
DGFT Notification No. 100 (RE-2013)/2009-2014, Dated: December 05, 2014
A new Board at NACEN gate
THE probationers should be taught not to carry their ego to the field.
Jurisprudentiol-Tuesday's cases
Central Excise
Rule 6(3)(b) CENVAT Credit Rules, 2004 - Eligibility of CENVAT Credit on inputs used exclusively in exempted goods when 10% amount paid - Finding of fact of CESTAT that inputs are used for both categories - Department not countered fact - Finding of fact cannot be disturbed - Assessee eligible to avail credit - Department's appeal dismissed: HC
IN civil miscellaneous appeal filed by the Revenue, the issue was whether CENVAT Credit could be availed on the inputs used exclusively in the manufacture of goods, which are exempted when assessee had paid 10% under Rule 6(3)(b) the CENVAT Credit Rules, 2004.
The High Court held that on a reading of Rule 6(1) and Rule 6(3), it is clear assessee who had opted not to maintain separate account of inputs in respect of the two categories of clearances, would be entitled to avail the CENVAT credit, if they paid the amount in terms of Rule 6(3)(b) and there can be no other interpretation on the admitted fact.
Income Tax
Income tax - Whether if remission of a liability is made pursuant to premature repayment of loan, such remitted sum can be treated as income - NO: Bombay HC
THE issue before the Bench is - Whether if the remission of a liability is made pursuant to "premature repayment of loan", such remitted amount can be considered as a receipt on account of revenue. NO is the answer.
Customs
While disposing appeal filed under Customs Act, 1962, whether Tribunal can remand matter to Central Excise Commissioner? - Yes - Section 129B does not restrict the power of Tribunal: HC
THE notice was adjudicated by the Commissioner of Customs. On appeal filed by the assessee, Tribunal remanded the matter to the Commissioner of Central Excise accepting the plea of the appellant that the Commissioner, Customs has no jurisdiction after debonding. The assessee challenged the order of Tribunal on the ground that under Section 129B of the Customs Act, 1962, Tribunal cannot remand the matter to an authority other than which passed the impugned order.
High Court held:
A conjoint reading of Section 129B with Section 2(1) of the Customs Act makes it clear that the order should be passed only by a competent authority who has jurisdiction to pass an order and therefore, the Tribunal, if it found an error in the order passed by an authority, is justified to remand the case back to the competent authority. Section 129B does not restrict the power of the Tribunal to remand the matter back to the competent authority having given a ruling thereon.
See our Columns Tomorrow for the judgements
Until Tomorrow with more DDT
Have a nice day.
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