Section 7

Scope of supply

Nature of Amendment

Harsh as retrospective

Impact

Association, Club, Housing Society

Commentary

Supply of activities or transactions inter se between a person & its members or constituents shall be deemed to take place from one such person to another – hence shall be treated as a supply. Paragraph 7 of Schedule II specifying supply (of goods) by any unincorporated association or body of persons to a member as a supply of goods accordingly has been omitted retrospectively due to inclusion of the same in Section 7.

Section 16

Eligibility and conditions for taking input tax credit.

Nature of Amendment

Most Dangerous

Commentary

Input Tax Credit regarding invoices and debit notes shall be available only to the extent they are furnished in GSTR-1 by the vendors and thus appear in GSTR-2A / 2B of the recipient. The mismatch will now cause more trouble.

Section 74

Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilized because of fraud or any willful misstatement or suppression of facts.

Nature of Amendment

Painful

Commentary

The proceedings initiated u/s 129 & 130 for E-way bill violations, i.e. detention, seizure and confiscation of goods or conveyances shall be independent proceedings and closure of parallel proceedings u/s 73 or 74 (in respect of any person including the subject person) shall not result in the deemed closure of the proceedings initiated u/s 129 & 130.

Section 75

General provisions relating to the determination of tax.

Nature of Amendment

Most Dangerous

Commentary

An explanation has been inserted to clarify that ‘self-assessed tax’ shall include only the amount of tax payable regarding details of outward supplies furnished in GSTR-1, but not included in GSTR-3B, and hence not paid.

GST amendment w.e.f. 1st January 2022

Due to this amendment, the department officials will be empowered to initiate recovery action directly based on the supply shown in the GSTR 1 Return provided that corresponding GSTR 3B Return not appropriately filed, i.e. tax in whole or in part not discharged.  He will not even need to issue notice. For example, more trouble would be in cases where even inadvertently 1 is shown as 10 or the amount will be reflected in the wrong tax head.

So correct filing of returns is essential now.

Section 83

Provisional attachment to protect revenue in certain cases.

Nature of Amendment

Draconian powers extended to Department

Commentary

Powers of provisional attachment have been extended to proceeding under Chapter XII (Assessment), XIV (Inspection, Search, Seizure and Arrest) or XV (Demands and Recovery) for attachment of property including bank account belonging to the taxable person or person who has retained benefits of offences under 122(1A).

Due to this amendment, the Commissioner has been empowered to initiate provisional attachment proceedings even during the assessment, investigation etc., if he feels that PA is necessary to protect the revenue. However, for the time being, the rule is that for initiating the PA proceedings, it is necessary to determine the liability and give reasonable time to discharge the obligation.

Section 107

Appeals to the Appellate Authority

Nature of Amendment

Cost increase

Commentary

In the context of filing the first appeals (Commissioner), presently, Sec. 107(6) of the CGST Act, 2017 provides a pre-deposit of 10% of the disputed tax amount for filing the appeal and staying the recovery. However, An amendment has been made in the context of the orders passed levying penalty u/s 129(3) for E-way bill violations to provide that the quantum of the pre-deposit in such cases shall be equal to 25% of the penalty ordered to be paid.

Section 151

Power to collect statistics

Nature of Amendment

May be used as a weapon in assessment, investigation cases to gather more information and data from the third person.

Commentary

At present, the Commissioner has the right to demand the Statistics only by issuing a notification. But from 1st January, he will be empowered to direct any person to furnish information relating to any matter dealt with in connection with this Act, within such time, in such form, and such manner, as may be specified therein. And the person in front will be obliged to give that information.

Author Bio

Qualification: LL.B / Advocate
Company: TKCM & Co., Chartered Accountants
Location: Jaipur, Rajasthan, India
Member Since: 23 Dec 2021 | Total Posts: 2

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2 Comments

  1. Om Prakash Jain says:

    Sir,
    ARA, Rajasthan has also pronounced Ruling on 27.9.2021, in the case of Umed Club (2021) 36 J.K.Jain’s GST & VR 344, that;

    “In view of the retrospective amendment made by Finance Act, 2021 in the definition of ‘Supply’, per S.7(1)(aa) & deletion of Item 7-Sch.II, the Services provided by the Club to its members, are taxable, w.e.f. 1.7.2017.”

    How will you perceive the retrospective amendment made by Finance Act, 2021 in the definition of ‘Supply’, per S.7(1)(aa).

    CA Om Prakash Jain s/o J.K.Jain, Jaipur
    Tel:9414300730

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