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GST - Case Laws
Showing 1 to 20 of 11337 Records
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2024 (4) TMI 1060
Service of notice - no notice was issued to the petitioner under Section 74(1) of Uttar Pradesh Goods and Services Tax Act, 2017 - violation of principles of natural justice - HELD THAT:- From the record, it is clear that a notice was issued to the petitioner under Section 74(5) of the Act on June 4, 2021 wherein officer asserted that the tax is payable by the assessee. However, upon non-payment of the tax, Section 74(7) of the Act would come into play and the proper officer is required to give a notice under Section 74(1) of the Act. This procedure, that is to be followed, was not followed and no show cause notice was issued to the petitioner. Instead of the same, the impugned order dated July 7, 2021 was passed.
Thus, it is clear that proper show cause notice was not issued to the petitioner, and therefore, all the orders impugned herein are without any basis of law. In my opinion, the impugned orders are required to be set aside.
Petition allowed.
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2024 (4) TMI 1059
Levy of penalty - the e-way bill had expired one hour fifteen minutes prior to interception - intent to evade tax or not - HELD THAT:- This Court in M/s Hindustan Herbal Cosmetics v. State of U.P. and Others [2024 (1) TMI 282 - ALLAHABAD HIGH COURT] and M/s Falguni Steels v. State of U.P. and Others [2024 (1) TMI 1150 - ALLAHABAD HIGH COURT] held that mens rea to evade tax is essential for imposition of penalty.
The factual aspect in the present case clearly does not indicate any mens rea whatsoever for evasion of tax. The goods were accompanied by the relevant documents and the explanation of the petitioner with regard to slow movement of the goods clearly indicate that the truck had broken down resulting in delay. This factual aspect should have been considered by the authorities below. The breach committed by the petitioner with respect to not extending time period of the e-way bill is only a technical breach and it cannot be the sole ground for penalty order being passed under Section 129(3) of Act.
The finding of the authorities with regard to intention to evade tax is not supported by the factual matrix of the case, and accordingly, the impugned orders are quashed and set aside - Petition allowed.
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2024 (4) TMI 1058
Violation of principles of natural justice - Ex-parte order - non-appearance of petitioner on account of compelling grounds - quantification of liability under the Uttar Pradesh Goods and Service Tax Act, 2017 u/s 130 of the Act - HELD THAT:- Upon a perusal of the judgement in M/S MAA MAHAMAYA ALLOYS PVT. LTD. VERSUS STATE OF U.P. AND 3 OTHERS [2023 (3) TMI 1358 - ALLAHABAD HIGH COURT], it is clear that the quantification of tax liability cannot be done under Section 130 of the Act rather the authorities should take recourse to Section 74 of the Act.
Furthermore, it appears from the record that the order impugned was passed ex parte. However, it appears that several opportunities were given to the petitioner, but the petitioner did not appear before the authorities. Counsel appearing on behalf of the petitioner submits that there were compelling grounds for non-appearance of the petitioner before the appellate authority.
The impugned order dated December 7, 2023 is quashed and set aside, with a direction upon the authority below to grant opportunity of hearing to the petitioner and thereafter pass a reasoned order - petition disposed off.
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2024 (4) TMI 1057
Breach of principles of natural justice - non application of mind - non-service of SCN - petitioner did not reply to the show cause notice because the notice was uploaded on the “View Additional Notices and Orders” tab on the GST portal and not communicated to the petitioner through any other mode - HELD THAT:- The justification of the petitioner for not responding to the show cause notice is not convincing in as much as the petitioner is under an obligation to monitor the GST portal on an ongoing basis as a registered person. Therefore, it is also necessary to put the petitioner on terms.
On instructions, learned counsel for the petitioner submits that the petitioner agrees to remit a sum of Rs. 10,00,000/- as a condition for remand.
The impugned order dated 29.12.2023 is set aside on condition that the petitioner remits a sum of Rs. 10,00,000/- (Rupees Ten lakhs only) towards the disputed tax demand as agreed to within a period of three weeks from the date of receipt of a copy of this order. The petitioner is permitted to submit a reply to the show cause notice within the aforesaid period.
The writ petition is disposed off.
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2024 (4) TMI 1056
Breach of principles of natural justice - validity of assessment orders - contravention of sub-section (4) of Section 75 of applicable GST enactments by failing to provide a personal hearing after such reply was issued by the petitioner - HELD THAT:- On perusal of the documents on record, it is clear that the petitioner responded to the show cause notice. After receipt of such reply, the respondent did not offer a personal hearing to the petitioner. Subsection (4) of Section 75 of applicable GST enactments prescribes that a personal hearing should be offered either if requested for or if an order adverse to the tax payer is proposed to be issued. Since such statutory prescription was contravened in this case, the impugned orders call for interference.
The orders impugned herein are set aside and the matters are remanded for reconsideration by the respondent. The respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue fresh orders within two months from the date of receipt of a copy of this order.
Petition is disposed off.
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2024 (4) TMI 1034
Violation of principles of natural justice - impugned order does not take into consideration the reply submitted by the Petitioner and is a cryptic order - HELD THAT:- The observation in the impugned order dated 29.12.2023 is not sustainable for the reasons that the reply dated 09.11.2023 filed by the Petitioner is a detailed reply with supporting documents. Proper Officer had to at least consider the reply on merits and then form an opinion. He merely held that the reply is incomplete, not duly supported by adequate documents, unable to clarify the issue, not clear and unsatisfactory which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the petitioner - Further, if the Proper Officer was of the view that any further details were required, the same could have been specifically sought from the Petitioner. However, the record does not reflect that any such opportunity was given to the Petitioner to clarify its reply or furnish further documents/details.
The impugned order cannot be sustained, and the matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order is set aside and the matter is remitted to the Proper Officer for re-adjudication - Petition disposed off by way of remand.
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2024 (4) TMI 1033
Interest and penalty liability - Petitioner discharged GST liability before issuance of SCN - Petitioner sought permission to approach the appellate authority by way of statutory appeal. - Benefit of the proviso to Section 50(1) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Petition is disposed of by permitting the petitioner to present a statutory appeal before the appellate authority subject to the condition that the petitioner remits a sum of Rs. 2.5 lakhs (Rupees two lakhs fifty thousand only) towards interest liability as agreed to within a period of three weeks from the date of receipt of a copy of this order. Subject to remittance of the amount specified above, if a statutory appeal is presented within the aforesaid period of three weeks, the appellate authority is directed to receive and dispose of the same on merits without going into the question of limitation.
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2024 (4) TMI 1032
Imposition of 100% penalty - wrongful availment of Input Tax Credit - Late Filing of Writ Petition - Petitioner seeks an opportunity to contest the liability towards penalty by way of statutory appeal - HELD THAT:- By taking into account the fact that the entire tax and interest liability was discharged and that an appeal was not filed earlier since the petitioner intended to discharge liability to that extent, it is just and appropriate that the petitioner be permitted to file a statutory appeal only insofar as it pertains to penalty.
Petition is disposed of by permitting the petitioner to file a statutory appeal only with regard to the penalty imposed under impugned order dated 12.09.2023 within two weeks from the date of receipt of a copy of this order. If such statutory appeal is filed within the aforesaid period, the appellate authority is directed to receive and dispose of the same on merits without going into the question of limitation.
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2024 (4) TMI 1031
Violation of principles of natural justice - appellant has been non-suited on the ground of alternate remedy - personal hearing was not given (on seeking adjournment for personal hearing) - mandate of Section 75 (4) stands complied or not - Tax not paid or short paid - HELD THAT:- The opportunity of hearing when is contemplated under the statute, it has to be comprehensive and it cannot be short-circuited. The show cause notice reflects that the date of reply was given on 30.10.2023 and before the personal hearing date is given, it would be about a superfluous and would defeat the actual intent of the legislation of giving an opportunity of hearing. It is not expected that before the reply is filed, an assessee can be heard and thereafter the reply is filed. It is against the normal procedure and is against the normal practice of the parties that personal hearing is preponed and the reply is subsequently filed. This is not the intent of provisions of sub-Sections (4) and (5) of Section 75.
The Supreme Court has in number of occasion has held that the opportunity of hearing means granting real and meaningful opportunity and adequate time must given to prepare and present the defence - Supreme Court in UMA NATH PANDEY VERSUS STATE OF UP. [2009 (3) TMI 526 - SUPREME COURT] has observed Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him.
It is one of the established principles of Common Law that officials taking action of a judicial nature must give an adequate opportunity of being heard to a person against whom the action is proposed to be taken.
In the given case without filing the reply, it cannot be understood how personal hearing can be justified. When the assessee is burdened with a tax liability, then the intent and the object of the statute are strictly to be complied with. Prima Facie, sub-Section 4 of Section 75 of the CGST Act was completely shelved before the order dated 29.12.2023 was passed - The Supreme Court in KALPRAJ DHARAMSHI & ANR. VERSUS KOTAK INVESTMENT ADVISORS LTD. & ANR. [2021 (3) TMI 496 - SUPREME COURT] has held that when the principles of natural justice has not been followed, the litigant would be entitled to invoke the jurisdiction of High Court under Article 226 of the Constitution of India.
Now coming back to the hearing, the judgments which has been relied on by counsel for the appellant i.e. FINO PAYTECH LIMITED VERSUS UNION OF INDIA, THROUGH THE SECRETARY, MINISTRY OF FINANCE & ANR. [2024 (4) TMI 284 - BOMBAY HIGH COURT] and MS KEC INTERNATIONAL LIMITED VERSUS UNION OF INDIA AND 3 OTHERS [2024 (2) TMI 359 - ALLAHABAD HIGH COURT], also fall in the same line wherein, the High Courts have repeatedly held that when the statute contains a mandate of hearing which is synonym to natural justice, it cannot be given a go bye or can be made porous, therefore, the order dated 29.12.2023 wherein, it has been recorded that the personal hearing was given on 11.10.2023 and 25.10.2023 would amount to defeat the rules of natural justice and the object of the legislation. The order if is allowed to be maintained, it would amount to allow a script with flaws.
Thus, the appellant would be entitled for personal hearing according to mandate of sub-Sections (4) and (5) of Section 75 of the CGST Act.
Appeal allowed.
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2024 (4) TMI 1030
Cancellation of registration of petitioner - appeal has been dismissed on the ground of same being time-barred - HELD THAT:- The controversy involved in this writ petition is squarely covered by the order passed by a Division Bench of this Court in POONAMCHAND SARAN S/O LATE MANGALRAM SARAN, MOHAN SINGH S/O LATE SHRI SALAM SINGH VERSUS UNION OF INDIA [2022 (10) TMI 180 - RAJASTHAN HIGH COURT] where it was held that Both the petitioners are given liberty to file appeal against the cancellation of their GST registration to the competent authority within ten days from today. Upon such appeals being filed, the same shall be considered and decided on all aspects in accordance with law excluding the bar of limitation in preferring the appeal by the petitioners.
The present petition is disposed of in the same terms while quashing and set aside the impugned order dated 28.12.2023 (Annex.3).
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2024 (4) TMI 1005
Cancellation of GST Registration retrospectively - closure of business - Defective Show Cause Notice - HELD THAT:- We notice that Show Cause Notice and the impugned order are also bereft of any details. Accordingly, the same cannot be sustained. Neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, we do not consider it apposite to examine this aspect but assuming that the respondent’s contention in required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer's registration can be cancelled with retrospective effect only where such consequences are intended and are warrant.
In view of the above that Petitioner does not seek to carry on business or continue the registration and an application for cancellation of registration appears to be filed, the impugned order dated 01.01.2021 modified to the limited extent that registration shall now be treated cancelled with effect from 30.04.2019 i.e., the date from which petitioner sought cancellation of GST registration.
Petition is accordingly disposed of in the above terms.
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2024 (4) TMI 1004
Validity of Order passed Ex-Parte - No opportunity of personal hearing - typographical error the on date of hearing - Violation of principles of natural justice - HELD THAT:- In the instant case, respondents decided to give petitioner an opportunity of hearing and accordingly, as per the respondents, fixed a date of 18.12.2023 for a personal appearance. Admittedly no notice for the said date was either sent or delivered to the petitioner. Consequently, petitioner was prejudiced, inasmuch as, petitioner could not be present at the time of personal hearing and the case was decided in his absence adversely. Consequently, we are of the view that the impugned order dated 28.12.2023 cannot be sustained and is liable to be set aside and the show cause notice restored on the file of the Adjudicating Authority.
Thus, the impugned order dated 28.12.2023 is set aside. The matter is remitted to the proper Officer to re-adjudicate the show cause notice in accordance with law. Petition is disposed of in the above terms.
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2024 (4) TMI 1003
Rejection of refund application - unutilised input tax credit - Without following the mandate of circular Circular No.135/05/2020 - GSTR 1, GSTR 3B and GSTR 2A returns does not match with GSTR Returns - HELD THAT:- The petitioner asserts that all relevant documents, including invoices raised by the supplier and invoices issued by the petitioner in respect of outward supplies were submitted. The respondent should have examined the application in accordance with Section 54 of applicable GST enactments, the rules framed thereunder and the Circular referred to above. Since such exercise has not been undertaken properly, the matter requires reconsideration.
Thus, the impugned order is set aside and the matter is remanded to the respondent for reconsideration. The petitioner is permitted to submit additional documents within a period of three weeks from the date of receipt of a copy of this order. Upon receipt thereof, the respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within two months from the date of receipt of additional documents from the petitioner.
The Writ Petition is disposed of on the above terms. There shall be no order as to costs.
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2024 (4) TMI 1002
Validity Of Order passed u/s 73 - Proper Officer not applied his mind - excess claim Input Tax Credit [“ITC”] - demand - Penalty - HELD THAT:- Perusal of the Show Cause Notice dated 24.09.2023 shows that the Department has given separate headings i.e., excess claim Input Tax Credit [“ITC”]; scrutiny of ITC availed on reverse charge; ITC to be reversed on non-business transactions & exempt supplies; and under declaration of ineligible ITC. To the said Show Cause Notice, a detailed reply was furnished by the petitioner giving disclosures under each of the heads.
The observation in the impugned order dated 30.12.2023 is not sustainable for the reasons that the reply dated 17.10.2023 filed by the Petitioner is a detailed reply with supporting documents. Proper Officer had to at least consider the reply on merits and then form an opinion. He merely held that the reply is unsatisfactory, which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the petitioner.
Further, if the Proper Officer was of the view that any further details were required, the same could have been specifically sought from the Petitioner. However, the record does not reflect that any such opportunity was given to the Petitioner to clarify its reply or furnish further documents/details.
Thus, the impugned order dated 30.12.2023 cannot be sustained, and the matter is liable to be remitted to the Proper Officer for re-adjudication.
Petition is disposed of in the above terms.
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2024 (4) TMI 1001
Validity Of Order passed u/s 73 - cryptic order - input tax credit wrongly availed - demand - Penalty - No opportunity to clarify reply or furnish further documents/details - HELD THAT:- Perusal of the Show Cause Notice dated 30.09.2023 shows that the Department has given reasons under separate headings i.e., taxpayer has availed the more ITC as mentioned above in GSTR-3B in compression to the ITC available in GSTR-2A; short payment of tax in compression GSTR-1; and input tax credit has been wrongly availed and utilized by the taxpayer. To the said Show Cause Notice, detailed replies were furnished by the petitioner giving disclosures under each of the heads.
The observation in the impugned order dated 30.12.2023 is not sustainable for the reasons that the replies dated 26.10.2023 and 06.11.2023 filed by the Petitioner are detailed replies along with supporting documents. Proper Officer had to at least consider the replies on merit and then form an opinion. He merely held that that no proper reply/explanation has been received from the taxpayer, without dealing with the same, which ex-facie shows that Proper Officer has not applied his mind to the replies submitted by the petitioner.
the impugned order dated 30.12.2023 cannot be sustained, and the matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order dated 30.12.2023 is set aside and the matter is remitted to the Proper Officer for re-adjudication.
Petitioner may file a further reply to the Show Cause Notice within a period of 30 days from today. Thereafter, the Proper Officer shall re-adjudicate the Show Cause Notice after giving an opportunity of personal hearing and shall pass a fresh speaking order in accordance with law within the period prescribed u/s 75 (3) of the Act.
Petition is disposed of in the above terms.
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2024 (4) TMI 1000
Cancellation of GST registration retrospectively - limitation - Defective Show Cause Notice - No opportunity provided to object - HELD THAT:- We notice that the Show Cause Notice and the impugned order are bereft of any details. Accordingly, the same cannot be sustained. Neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, we do not consider it apposite to examine this aspect but assuming that the respondent’s contention in required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer's registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
In view of the facts that Petitioner does not seek to carry on business or continue with the registration, the impugned order dated 02.12.2022 is modified to the limited extent that registration shall now be treated as cancelled with effect from 16.10.2020 i.e., the date when Sh. Mohinder Mohan Singh passed away. Petitioner shall make the necessary compliances as required by Section 29 of the Central Goods and Services Tax Act, 2017.
Petition is accordingly disposed of in the above terms.
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2024 (4) TMI 999
Validity of an order u/s 83 - Seizure of the outward movement of funds from the bank account - Bank not permitting the operation - HELD THAT:- In view of Section 83 (2) of the Act, the life of an order of provisional attachment is only one year. In the instant case, the impugned communication is dated 14.08.2019 and a period of one year has elapsed from the issuance of the said communication. Consequently, the impugned order dated 14.08.2019 has ceased to be effective and cannot be any more implemented either by the respondents No. 1 and 2 or the HDFC Bank i.e., respondent No. 3. Accordingly, it is declared that order dated 14.08.2019 ceases to have effect. Consequently, respondent No. 3, HDFC Bank henceforth cannot restrain operation of the bank account of the petitioner based solely on the basis of order dated 14.08.2019.
Petition is accordingly disposed of in the above terms. It is, however, clarified that this order would be without prejudice to any other order of provisional attachment issued by either respondents No. 1 and 2 or any other authority communicated to the HDFC Bank. In case any such order is communicated to the HDFC Bank, the Bank shall give due credence to the same irrespective of this order.
Learned counsel for petitioner submits that petitioner has till date not been communicated any other order of attachment issued either by respondents No. 1 and 2 or any other authority and reserves the right of the petitioner to take appropriate proceedings against any order, if so communicated.
Dasti under signature of the Court Master.
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2024 (4) TMI 998
Validity Of Order-in-original - application seeking refund of tax - Period of limitation - Not fulfilled the mandate issued under circular - Payment of tax under the wrong head - HELD THAT:- In terms of the clarification issued by circular dated 25.09.2021, petitioner could have filed an application before expiry of two years from the date of payment of tax under the correct head i.e. before expiry of two years from 19.08.2019. However, the circular further clarifies that in cases where payment was made under the correct head prior to issuance of the circular, a further period of two years would be available from the date of circular, which implies that any application seeking refund filed on or before 23.09.2023 in respect of taxes paid under the correct head prior to 24.09.2021 would be considered within time.
In the subject case, petitioner filed the first application seeking refund on 11.05.2020, which was rejected on 29.06.2020 and the appeal against the said order was also dismissed on 30.06.2021 i.e. prior to the issuance of the clarification by the circular dated 25.09.2021.
After the issuance of the circular, petitioner filed a second application on 14.07.2022, which has been rejected by the order-in-original impugned before the Appellate Authority whose order is impugned before us.
Clearly, both the refund applications filed by the petitioner (one on 11.05.2020 and other on 14.07.2022) are covered by the circular dated 25.09.2021 and were within limitation. Consequently, the Appellate Authority has committed an error in not noticing the said circular and rejecting the appeal holding that the application was beyond time. Accordingly, said order is not sustainable and is set aside. The appeal is restored to its original number on the record of the Appellate Authority. The Appellate Authority is directed to consider and dispose of the appeal on merits in accordance with law.
Petition is allowed in the above terms.
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2024 (4) TMI 997
Validity of adjudication order - without any application of mind - Rejection of application seeking refund - Show Cause Notice issued by an incompetent officer - HELD THAT:- We are of the view that the course adopted by the Appellate Authority is not sustainable for the reason that once the Appellate Authority comes to the conclusion that the Show Cause Notice was issued by an officer who was not competent; reply was also considered by an incompetent authority and the Competent Authority had not applied its independent mind, the Appellate Authority could not have assumed original jurisdiction and proceeded further with the matter. The Appellate Authority could have only quashed the Show Cause Notice and the proceedings emanating therefrom while reserving the right of the Proper Officer to initiate appropriate proceedings in accordance with law.
In view of the above and particularly in view of the fact that the course adopted by the Appellate Authority is not acceptable in law, the impugned order dated 17.04.2023 is set aside to the extent that it decides the claim of the petitioner on merits. The finding returned by the Appellate Authority that the Show Cause Notice has been issued by an incompetent authority and the adjudication order has been passed without any application of mind are not interfered with. The sequitur to that is that the Show Cause Notice dated 25.11.2021 adjudication order dated 14.12.2021 are not sustainable in law and are consequently set aside.
Petition is allowed in the above terms. The appropriate authority shall consider the application of the petitioner seeking refund for the period April, 2022 to June, 2022 expeditiously in accordance with law.
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2024 (4) TMI 996
Cancellation of GST Registration retrospectively - Defective Show Cause Notice - No opportunity for personal hearing - HELD THAT:- We notice that Show Cause Notice and the impugned order are also bereft of any details. Accordingly, the same cannot be sustained. Neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the taxpayer during such period. Although, we do not consider it apposite to examine this aspect but assuming that the respondent’s contention in required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer's registration can be cancelled with retrospective effect only where such consequences are intended and are warrant.
In view of the fact that the Petitioner does not seek to carry on business or continue the registration and since no application for cancellation of registration appears to have been filed, the impugned order dated 27.12.2021 is modified to the limited extent that registration shall now be treated cancelled with effect from 02.09.2021 i.e., the date of the issue of the Show Cause Notice.
Petition is accordingly disposed of in the above terms.
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