Tax Consultant Arrested - for Service Tax Evasion?
09 04 2015
Thursday
IT was just ten days ago that DDT quoted the British Public Accounts Committee Chairman -.. a tax avoidance industry, comprising many large accountancy firms, tax advisers and lawyers, all of whom are making lucrative business out of designing and selling ways for their clients to avoid tax.
And here is a tax consultant who swindled his client and got arrested by the Service tax department.
Mumbai Service Tax has arrested one S. Shivaraman Tax Consultant for evasion of Service Tax amounting to Rs.89 lakhs! How can a tax consultant evade service tax? Read on the Press Note issued by Mr.Sushil Solanki, the Service Tax Commissioner.
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During verification of Service Tax payment by M/s. Unison Security Force, a Security Services provider, it was noticed that they have appointed Mr. S. Shivaraman as a Tax Consultant in the year 2009 for looking after Service Tax related work including filing of S.T returns and payment of Service Tax. ACES system of the service provider was also operated by the said Tax Consultant. As per the statement given by the owner of the firm, he used to provide the details of the Sales Invoice raised by him to his Tax Consultant and based upon the information of the Tax Consultant, he was making payment of Service Tax to the Consultant. However, the Consultant was depositing only a small amount and the balance amount was swindled by him. In order to cover up the fraud the Tax Consultant used to prepare forged tax payment challans and give it to the owner of the firm. In fact he had also prepared the Return showing the reduced amount only. The owner of the Security firm had made payment of Service Tax of Rs.1.8 crore from 2009 to the Consultant but the consultant has made payment to the Government only Rs.90 lakhs (Approx.). In the process Mr.S.Shivaraman, Consultant had pocketed the Service Tax amount of Rs.90 lakhs. During investigation the Tax Consultant has paid Service Tax of Rs.55 lakhs. The Chief Metropolitan Magistrate Court has granted bail on the condition of payment of balance amount of Service Tax within 15 days.
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While it is appalling to note that a Consultant can defraud his client so blatantly, it is also surprising that an assessee paid Rs. 1.8 Crores to the consultant as service tax to be paid to the department.
In this case, has the consultant evaded Service Tax? And is he liable to be arrested? An officer told us, "yes, otherwise how did the magistrate grant him bail?". In this case, the security firm was liable to pay service tax and the consultant cheated the firm, but has the consultant evaded service tax and could he be arrested by the service tax department?
We tried to find out and were told that he was arrested under Section 89 (1) (d) of the Finance Act, which reads as, "(d) collects any amount as service tax but fails to pay the amount so collected to the credit of the Central Government beyond a period of six months from the date on which such payment becomes due,
shall be punishable, -..."
If somebody pays you money to pay service tax, and you don't pay it, are you liable to be arrested under the above provision? YES, according to service tax authorities. And they actually arrested such a person.
Four years ago a consultant was arrested in Pune for collecting service tax money from some assessees and pocketing it without paying it to the Government. But he was arrested under Sections 420 (cheating), 468 (forgery), 470 (forged document) and 471 (Using as genuine a forged document) of the Indian Penal Code, but not the Service Tax statute.
This is perhaps the first time in the country that the service tax department has arrested a tax consultant for service tax evasion but it certainly is not the first time that we hear of swindling consultants.
Please see Neha Enterprises - 2012-TIOL-866-CESTAT-MUM and Shreeji Travels - 2007-TIOL-141-CESTAT-Ahm
Can Service Tax Department publish names of alleged offenders?
DDT asked this question to several service tax officers; many of them retorted, "why not"?
When we mentioned about Section 73D of the Finance Act, 1994, many of them were not aware of it. Section 73D states,
73D. Publication of information in respect of persons in certain cases:
(1) If the Central Government is of the opinion that it is necessary or expedient in the public interest to publish the name of any person and any other particulars relating to any proceedings under this Chapter in respect of such person, it may cause to be published such names and particulars in such manner as may be prescribed.
(2) No publication under this section shall be made in relation to any penalty imposed under this Chapter until the time for presenting an appeal to the Commissioner (Appeals) under section 85 or the Appellate Tribunal under section 86, as the case may be, has expired without an appeal having been presented or the appeal, if presented, has been disposed of.
And the Government had notified the Service Tax (Publication of Names) Rules, 2008. The CBEC explained the Act and the Rules in Circular No. 100/3 /2008-ST, dated: March 12, 2008 .
The Board directed that:
• Publication of information would be resorted to only in respect of offence cases wherein the service tax liability is Rs. 1 crore or more.
• The cases should have material evidence to show that fraud, collusion, wilful mis-statement or suppression of facts has been committed with intent to evade payment of tax /duty.
• Such publication of information should be necessary or expedient in public interest.
• The jurisdictional Commissioners or the ADGs of DGCEI zonal units should send the proposal giving full details of the nature of offence, amount of tax, credit, refund or rebate involved and role played by each person whose name or other particulars are proposed to be published, to the Chief Commissioner or the Director General of Central Excise Intelligence as the case may be.
• The Board, on receipt of approval of the Central Government, will communicate the same to the concerned Chief Commissioner or Director General, as the case may be, for taking necessary action. The publication of names may be made in the print media, electronic or any other media of mass communication.
Board further clarified that these provisions are stringent in nature and may affect the reputation of a person. Therefore, these should be used sparingly, with due care and caution. At the same time, it has also to be ensured that in deserving cases, they are, in fact, used and that there is no arbitrary selection in their implementation.
So, there is a long procedure to be followed before the names of alleged offenders can be published. The CBI does not publish the names of babus it arrests on corruption charges.
While the Department cannot officially publish the names of alleged offenders, without following the prescribed procedure, they can always "leak" the information to the press. And the modern Press is more than willing to ‘carry' the news.
Jurispruden tiol - Yesterday's Supreme Court Judgement
CENTRAL Excise - Valuation (prior to the 2000 amendment of Section 4) - Related Person - Normal Price - just because two companies are related by their holding/subsidiary relationship, the normal price does not change., especially when the goods were sold to related persons at a higher price than to independent buyers. Yesterday the Supreme Court delivered a masterly judgement on valuation, but may not be very relevant today as it primarily dealt with the valuation rules as existing prior to 1.7.2000.
The long journey began in 1995, when a Show Cause Notice was issued. Detergents India Limited, now Henkel Marketing India Limited, was at the relevant time a subsidiary of Shaw Wallace and Company Limited. 90% of the manufacturing capacity of Detergents India Limited was to manufacture various products for Hindustan Lever Limited which were then branded with Hindustan Lever names in small packs. The excess 10% capacity which was not mopped up by Hindustan Lever was sold to Shaw Wallace, its holding Company. Various other manufacturers/sellers also sold the same and similar products to Shaw Wallace and Company. A large number of these manufacturers were not subsidiary companies of Shaw Wallace and indeed had no business relationship with Shaw Wallace other than the sale of these products. The price paid by Shaw Wallace and Company for the purchase of the same/similar products from the other firms/companies was less than the price paid to Detergents India Limited.
The Department felt that as Detergents India and Shaw Wallace were related persons, the price paid by Shaw Wallace was not the normal price and the price at which Shaw Wallace sold the goods should be the price for excise valuation. In one of the cases, the Deputy Commissioner dropped the proceedings and his view was confirmed by the Commissioner (Appeals) and the Tribunal. However in another case, the Commissioner confirmed the demand, but Tribunal by majority set aside his order.
The Revenue is before the Supreme Court. The Supreme Court observed that just because Shaw Wallace and Detergents India are "related persons" by their holding/subsidiary relationship, it does not follow that there is any arrangement of tax avoidance or tax evasion. Further, the single most relevant fact, namely, that Shaw Wallace paid for the same/similar goods to unrelated suppliers at a price lower than the price paid by Shaw Wallace to DIL, has not been adverted to at all by the Commissioner.
So, the Supreme Court dismissed the Revenue appeal.
Please see Commissioner of Central Excise, Hyderabad vs Detergents India Ltd - 2015-TIOL-56-SC-CX
Jurispruden tiol - Supreme Court recent case
JUST a day before, the Supreme Court delivered another important judgement. In this case, the respondent is a manufacturer of medicaments having license under the provisions of the Drugs and Cosmetics Act, 1940. The respondent not only manufactures certain medicaments but also gets certain medicaments manufactured through other job workers so the respondent is a loan licensee - who is also permitted to get drugs manufactured at different places under the provisions of the Drugs and Cosmetics Act, 1940 and Rules made thereunder. Under the agreement entered into between the respondent on one hand and the job workers on the other hand, raw material as well as packing material is supplied to the job workers and as per the instructions of the respondent loan licensee, the job workers manufacture the medicaments under the supervision of the loan licensee, i.e. the respondent so as to see that the quality of the medicaments manufactured by the job workers is as prescribed by the loan licensee.
The Department was of the view that the respondent and not the job workers are the manufacturers and so they are liable to pay duty (on higher value). The Tribunal allowed the appeal and Revenue is before the Supreme Court. The period in dispute is from 1998 to 2003.
The Supreme Court observed that the term 'manufacturer' or the loan licensee used under the provisions of the Drugs and Cosmetics Act, 1940 has nothing to do with the manufacturing activity or term 'manufacture' under the provisions of the Central Excise Act, 1944 and whether a person has manufactured a particular item or whether a person is a manufacturer is a question of fact. Once the Tribunal, after appreciating relevant evidence, has come to a conclusion that the job workers were the manufacturers and the respondent - the loan licensee, was not the manufacturer, there is no reason to interfere with the said findings of fact, especially when the same is correct and not perverse.
The Supreme Court upheld the findings arrived at by the Tribunal that the job workers are the manufacturers and observed,
Once it has been determined that the job workers are the manufacturers, the assessable value of the goods would be a sum total of cost of raw material, labour charges and profit of the job workers, as per circular No.619/10/2002-CX dated 19th February, 2002 and the law laid down by this Court in the case of Pawan Biscuits and other cases. In such a case, the price at which the respondent brand owner sells its goods would not be the assessable value because the duty is to be paid at the stage at which the goods are manufactured and not at the stage when the goods are sold .
Thus the Revenue Appeal was dismissed.
Please see Commissioner of Central Excise, Goa Vs Cosme Farma Laboratories - 2015-TIOL-55-SC-CX
Anti Dumping Duty - Resurrection - again
ANTI-dumping duty on "Coumarin": The anti dumping duty on Coumarin falling under Tariff Item 2932 21 00 of the First Schedule to the Customs Tariff Act, originating in, or exported from, People's Republic of China, imposed vide notification No. 12/2012 -Customs (ADD), dated the 8th February, 2012, expired on 23.03.2015. Now it is extended till 22nd day of March, 2016 - Notification No. 08/2015-Customs (ADD), Dated: April 07, 2015
Anti-dumping duty on "Flexible Slabstock Polyol": Government has imposed definitive anti dumping duty on "Flexible Slabstock Polyol of molecular weight 3000- 4000" originating in, or exported from Australia, European Union and Singapore - Notification No. 09/2015-Customs (ADD), Dated: April 07, 2015
Anti-dumping duty on "Poly Vinyl Chloride Paste Resin": Government has imposed definitive anti dumping duty on Poly Vinyl Chloride Paste Resin originating in, or exported from Norway and Mexico- Notification No. 10/2015-Customs (ADD), Dated: April 07, 2015
CBDT constitutes Information Security Committee
AN Information Security Committee (ISC) has been constituted in the Central Board of Direct Taxes (CBDT).
Responsibilities of ISC:
(a) Ratification of the Information Security Policies and Procedures (ISPP) suggested by the CISO.
(b) Ensure that ISPP is implemented by ensuring the involvement of the business heads.
(c) Conduct the management review of the ISPP to ensure continuing suitability, adequacy and effectiveness of ISPP.
(d) Initiate internal and external security reviews and ensuring that action is taken to rectify any identified shortfalls.
(e) Responsible for disciplinary action in cases of breach of ISPP.
Board has also constituted a CISO - Chief Information Security Officer. CIT (M&TP) shall also perform the role of Chief Information Security Officer (CISO).
Responsibilities of CISO would be as under:
(a) Responsible for preparing, maintaining and communicating ISPP.
(b) Oversee all information security processes and serve as the focal point for all information security issues and concerns.
(c) Ensure that responsibilities are defined for and that procedures are in effect to promptly detect, investigate, report and resolve security incidents.
(d) Ensure that ongoing information security awareness education and training is provided to all employees.
(e) Provide reports to the ISC on the status of information security, policy violations and information security incidents.
CBDT F No. 500/137/2011-FTTR-III., Dated: April 7, 2015
Moody's upgrades rating of Modi's India
RATING agency Moody's today changed India's outlook to positive from stable. The driver for the rating outlook change is Moody's view that India's policymakers are establishing a framework that will likely:
• Allow India's growth to continue to outperform that of its peers over the medium-term; and
• Improve India's macro-economic, infrastructure and institutional profile.
Moody's expects these structural advantages, supported by relatively benign global commodity prices and liquidity conditions, will keep India's growth higher than that of its peers over the rating horizon.
However, recurrent inflationary pressures, occasional balance of payments pressures, and an uncertain regulatory environment have contributed to periods of volatility in growth, and have exposed India to external and financial shocks, constraining its credit profile.
Moody's believes that recent measures to address inflation, keep external balances in check, simplify the regulatory regime for investors, increase foreign direct investment, and facilitate infrastructure development will reduce some of India's sovereign credit constraints.
Until Tomorrow with more DDT
Have a nice day.
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