News Update

Delhi DRI seizes 41 kg foreign-marked gold + Rs 48 lakh cash + + 213 kg silver worth Rs 13 CroreISRO reschedules launch of GSAT-11MSME Ministry to set up Digital Trade DeskKolkata DRI seizes 14.4 lakh foreign cigarettes from container misdeclared as Facial TissueCentral Staffing Scheme - Govt notifies Rs 9000 hike in deputation allowance'Innovate in India' gets USD 125 millionI-T - Payment made to acquire trade mark which facilitates entry into a particular market is revenue expenditure: HCI-T - Interest income earned from deposit of share application money statutorily required to be kept in separate account is incidental in nature and assessee is entitled to set it off against expenses relating to public issue: SCCabinet approves MSP for Raw Jute for 2018-19 seasonI-T - While making invocation of Sec 147 conditional, Legislature does not intend to allow Revenue to adopt liberal interpretation of expression 'reason to believe': SCCabinet okays MoU with BRICS medicine regulatory agenciesJodhpur Court convicts Asaram in Rape CaseCabinet okays declaration of Schedules Areas in Rajasthan under Fifth ScheduleConstruction of GST on Residential Flats (See ' JEST GST on GST Home Page')I-T - Infra companies having exposure to substantial risk connected with construction projects, are eligible for Section 80-IA benefits: ITATWhen Domestic Tax Laws Reach Beyond Customs FrontiersCX - Present appeal has been filed in routine manner without application of mind as it ignores fact that Writ Petition by Revenue had already been rejected by High Court much before filing of appeal: CESTATHyderabad DRI seizes about 1400 kg ganja in VijayawadaRejection of impeachment motion - Congress move to seek judicial review is another blunder, says FMCBEC clarifies on concessional import by EoU & STPAhmedabad CESTAT Bar Association decides to boycott Division Bench hearing for non-judicial approach till FridayNGT serves notice to UP civic agencies for waste burning in KaushambiFinance Act - CBDT seeks public inputs on STT & LTCG related amendmentsFinance Commission visits Assam to accelerate developmentWorld Bank loans USD 210 mn for rural road connectivity in MPSBI to issue second tranche of Electoral bonds from May 1J&K Cabinet passes ordinance approving death penalty for child rapists below 12 yrsCX Tribunal is not expected to endorse legal findings by the Adjudicating Authority and that of first Appellate Authority but expected to apply its independent mind: High CourtI-T -When there is a clear connect between expenditure incurred and transfer of property, such expenses are allowable deduction u/s 48(i) for purpose of LTCG tax: HCGST - Outlet situated at T-3, IGI Airport is not outside India but within territory of India - applicant is not taking goods out of India, hence supply cannot be called 'export' or 'zero rated supply' : AAROcean freight: Fears of double taxation are misplacedI-T - Decision of CIT(A) based on evidences produced by assessee, which was also available with AO , cannot be challenged further: ITATST - SCN issued is without any foundation and, therefore, adjudication order confirming the demand on such cryptic SCN, cannot be sustained : CESTATCX - Once amount of CENVAT credit allegedly irregularly availed is admittedly reversed, interest is chargeable as piggyback - rule 6(3A)(e) would otherwise become redundant: CESTATVAT - Commercial Department need not burden registered dealers for furnishing bank guarantee, if their interest is already safeguarded: HCIndia exploring signing of MoU with South Korea for Road Information System
ST - Omission of Entry 92C from Union List - SCN demanding Service Tax after enactment of CGST Act, 2017 is prima facie without jurisdiction: HC

By TIOL News Service

GUWAHATI, DEC 19, 2017: THIS Writ Petition has been filed challenging the SCN dated 23.10.2017 issued by the respondent Assistant Commissioner of GST & Central Excise, Guwahati on the ground that after the enactment of the Central Goods and Services Tax Act, 2017 as well as the omission of Entry 92C from List-I of the Seventh Schedule of the Constitution, the respondent does not have any jurisdiction to enter into an enquiry in respect of the subject matter of the notice and as such the impugned SCN was wholly without jurisdiction. It is prayed that an order be passed suspending further proceeding pursuant to the SCN dated 23.10.2017.

The Central Government counsel submitted that he be granted some time to obtain instructions in the matter.

The High Court observed –

"Having regard to the pleadings in the Writ Petition, this Court is of the prima facie opinion that the impugned notice dated 23.10.2017 is without jurisdiction. In view of the above, further proceeding under the impugned notice is hereby stayed until the returnable date."

The Court directed issue of notice of motion returnable on 05.02.2018.

In passing:

Entry 92C of the Union listwas omitted by the the Constitution (One Hundred and First Amendment) Act, 2016, w.e.f.  16.9.2016.

Before, it read as - "92C. Taxes on services."

The Law:

Incidentally, in our DDT column we had carried an interesting and exhaustive analysis on the subject "What is the constitutional authority for levy of Service Tax?" and by citing the Supreme Court decision in  2010-TIOL-87-SC-ST-LB   concluded - Service Tax is levied under the residual entry 97 of the Seventh Schedule to the Constitution and not under entry 92C, as strongly believed by many.

(See 2017-TIOL-2603-HC-GUW-ST)

Sub: levy of Service tax

it is a fact that though entry 92C was entered in to seventh schedule but same was never notified and thus had no effect. in several case it has been held by apex court that service tax was levied under entry 97 and not under 92C.

Posted by Satya Narain