Calcutta HC directs GST Network to allow Amendment of GSTR-1

The Calcutta High Court has directed the Goods and Service Tax Network (GSTN) to allow amendment in GSTR-1 in order to rectify a mistake in mentioning the GSTIN.

The petitioner, M/s Dynasoure Concrete Treatment Private Limited & Anr, approached the High Court to direct the Chairman, GSTN to consider and dispose off the representation of the petitioner for amendment in GSTIN of 1 recipient in GSTR 1 filed for FY 2019-20 and FY 2020-21 which has resulted in non-reflection of the said invoice in the recipients GSTR 2A leading to denial of ITC to the recipient, as for some invoices the TDS GSTIN of the recipient was uploaded in GSTR 1 instead of regular GSTIN.

The petitioner contended that the error came to the knowledge of the petitioner belatedly and the GST portal was not allowing to amend the GSTIN, the petitioner approached the State GST authorities which in turn replied that the said amendment can be done by GSTN only.

Also, since the recipient has deducted the payment of GST from the payments made to the petitioner, the Hon’ble HC as also granted liberty to the petitioner to file a claim of such amounts before the recipient of service in a time bound manner.

Justice Md. Nizamuddin held that “Considering the submission of the parties this writ petition being WPA 9511 of 2022 is disposed of by directing the respondent No. 1 to consider and dispose of the aforesaid representation dated 3rd May, 2022 being Annexure ‘P/5’ to the writ petition in accordance with law and by passing a reasoned and speaking order within four weeks from the date of communication of this order. Liberty is also granted to the petitioners to make appropriate representation for refund, if any, which writ petitioners are entitled, within two weeks from date and the same shall be considered by the respondent concerned within four weeks from the date of making such representation, in accordance with law.

The matter was argued by Adv Megha Agarwal for the assessee.

Section 147 is not an Alternative to Section 263: ITAT quashes Assessment Order u/s 147

The Delhi Bench of Income Tax Appellate Tribunal (ITAT) has held that Section 147 is not an alternative to Section 263 and quashes assessment order u/s 147 without jurisdiction.

The appellant, M/s. Plaza Cable Industries Ltd., filed its Income tax return declaring a loss of Rs.7,06,97,714/-, and the assessment was selected for scrutiny assessment. Subsequent to the completion of the assessment under Section 143(3) of the Act, a notice under Section 148 of the Act was issuedto reopened and include certain income which has allegedly escaped earlier assessment.

Before the first appellate authority dismissed the appeal and then assessee filed second appeal before the Tribunal. Theassesseechallenged the jurisdiction assumed under Section 147 read with Section 148 of the Act and further challenged the disallowance in relation to prior period expenses to the tune of Rs.19,37,322/- in theassessment framed in pursuance of proceedings under Section 147 of the Act.

Mr. Pradip Kumar Kedia, Accountant Member and Mr. Narender Kumar Choudhry, Judicial Member has observed that the AOhas resorted to Section 147 of the Act primarily as alternative to Section 263 or Section 154 owing to the admitted fact that the action under Section 263 cannot be taken due to bar of limitation. As further asserted by the AO, the rectification under Section 154 also cannot be taken. The Tribunal further observed that theinvocation of jurisdiction under Section 147 is governed by its own set of stringent statutory requirements and is not alternative to the provisions of Section 263 of the Act.

The Tribunal further held that it is not known, what material facts were not brought on record by the assessee in the course of original assessment. The salutary burden placed on the Assessing Officer under the 1st proviso is not discharged at all. The jurisdiction under Section 147 was exercised in a most flippant and nonchalant manner.

The Tribunal has held that “the jurisdiction assumed under Section 147 in this backdrop is ex-facie vitiated and thus requires to be struck down at the threshold. The impugned assessment framed under Section 147 r.w. Section 143(3) is clearly bad in law in the absence of any valid jurisdiction. Consequently, the impugned assessment order dated 04.11.2011 framed in pursuance of nonest jurisdiction stands quashed”.

Payment made by a Mobile Service provider to another Mobile Service Provider for Roaming

The Income Tax Appellate Tribunal (ITAT), New Delhi, has held that payment made by a mobile service provider to another mobile service provider for roaming cannot be considered as technical service and can’t deduct TDS u/s 194J of the Income Tax Act,1961.

Sh. Deepak Chopra & Ms Manasvi Bajpai appeared for the assessee and Sh. H. K. Choudhary appeared for the revenue.

The assessee company is engaged in the business of prepaid mobile telecommunication services. The assessment was completed on raising demand of Rs.3,62,76,960/- and Rs.21,45,41,917/-, respectively, on account of non-deduction of taxes on the margin of profit given to the prepaid distributors on sale of prepaid talk time and also non-deduction of taxes on roaming charges. The AO treated the prepaid distributor as an agent of the company to whom the company sold the prepaid cards at a rate lower than the MSC (Maximum Service Charge) printed on the prepaid card as an outright sale and applied Section 194H.

The appellant contended that the relationship between the appellant and the prepaid distributors was not that of ‘Principal to Principal’ and hence not like commission composed under Section 194H. The appellant also argued that there was no payment made to the distributors nor any amount credited into their accounts.

The Tribunal observed that in the case of CIT vs. Vodafone South Ltd held that payment made by a mobile service provider to another mobile service provider for utilization of roaming mobile date and connectivity cannot be termed as technical service and therefore, no TDS was deductible u/s194J of the Act and concluded that payment made for roaming connectivity cannot be termed as “technical services”. It was observed interest under section 201(1A) of the Act is chargeable up to the date of payment of taxes by the deductee/payee.

The Tribunal consist of Sh. Saktijit Dey, Judicial Member Dr B. R. R. Kumar, Accountant Member has held that no TDS u/s 194J is deductible in case of roaming charges paid and further directed the Assessing Officer to re-compute the interest under section 201(1A) of the Act with the instructions of CBDT. The appeals filed by the assessee was partly allowed and that of the Revenue appeals were allowed for statistical purpose.