|
Advanced Search Options
GST - Case Laws
Showing 1 to 20 of 11535 Records
-
2024 (5) TMI 921 - ALLAHABAD HIGH COURT
Rejection of appeal of petitioner - Delay in submission of Appeal - no opportunity of hearing was granted to the petitioner - violation of principles of natural justice - HELD THAT:- From the facts, it is clear that the no opportunity of hearing was granted to the petitioner.
Reliance placed in the case of BBCL INFRASTRUCTURE VERSUS STATE OF U.P. AND 2 OTHERS [2022 (12) TMI 958 - ALLAHABAD HIGH COURT] where it was held that 'The appellate authority should follow the principle of natural justice by affording opportunity of hearing to the assessee before taking any decision. The appeal should not be dismissed without due consideration of the ground taken in the appeal and the delay condonation application'.
The issue involved in the present case is squarely covered by the above judgement and accordingly, this Court quashes and sets aside the impugned order and directs the appellate authority to pass a reasoned order after granting an opportunity of hearing to the petitioner. The entire exercise should be completed within a period of two months from date.
This writ petition is disposed of.
-
2024 (5) TMI 920 - ALLAHABAD HIGH COURT
Imposition of tax and penalty u/s 129(3) of the Uttar Pradesh Goods and Services Act, 2017 - expired e-way bill - e-way bill had expired nine hours and thirty minutes prior to interception - sufficient reason for delay in extending time period of the e-way bill - mens rea to evade tax or not - HELD THAT:- This Court in M/S. HINDUSTAN HERBAL COSMETICS VERSUS STATE OF U.P. AND 2 OTHERS [2024 (1) TMI 282 - ALLAHABAD HIGH COURT] and M/S FALGUNI STEELS VERSUS 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 order dated February 27, 2020 passed by the Assistant Commissioner and the order dated November 27, 2020 passed by the Additional Commissioner are quashed and set aside.
Petition is allowed.
-
2024 (5) TMI 919 - CALCUTTA HIGH COURT
Violation of principles of natural justice - non-application of mind - the learned Judge failed to take into consideration the fact that relevant documents submitted by the appellant had not been considered by the Principal Commissioner, CGST, Bolpur Commissionerate - HELD THAT:- The finding of adjudicating authority clearly demonstrates non-application of mind by the adjudicating authority to the documents submitted by the appellant claiming exemption with regard to the services which were the subject matter of adjudication. This amounts to a manifest error apparent on the face of the records which has rendered the decision making amenable to judicial review. Existence of alternative remedy is a self-imposed restriction and does not divest a Court of its extraordinary powers under Articles 226 of the Constitution of India.
As the documents submitted by the appellant assessee had not been considered, he submits in the event the assessee deposits 7.5% of the tax assessed in the impugned order, the order may remain suspended and the matter be remanded for fresh reconsideration in light of the documents furnished by the assessee.
There is a manifest error on record which has affected the fairness of the decision making process.
It is directed that in the event appellant/assessee deposits 7.5% of the tax assessed in the impugned order within four weeks from date, impugned order shall remain suspended and the matter shall be remanded to the adjudicating authority who shall decide the matter afresh in accordance with law in light of the documents submitted before the authority after giving opportunity of hearing to the appellant.
Appeal disposed off.
-
2024 (5) TMI 918 - ALLAHABAD HIGH COURT
Maintainability of petition - availability of remedy of appeal under Section 107 of the Act denial of opportunity of hearing to the assessee - violation of Section 75(4) of the Act - principles of natural justice - HELD THAT:- It is basic to procedural law under taxing statutes that opportunity of personal hearing must be provided to an assessee before any assessment/adjudication order is passed against him - It transpires from the record, neither the adjudicating authority issued any further notice to the petitioner to show cause or to participate in the oral hearing, nor he granted any opportunity of personal hearing to the petitioner.
Before any adverse order passed in an adjudication proceeding, personal hearing must be offered to the noticee.
The impugned order cannot be sustained in the eyes of law. It has been passed in gross violation of fundamental principles of natural justice. The self imposed bar of alternative remedy cannot be applied in such facts. If applied, it would be of no real use. In fact, it would be counter productive to the interest of justice. Here, it may be noted, the appeal authority does not have the authority to remand the proceedings.
The matter is remitted to the respondent no.2-Deputy Commissioner, Commercial Tax Department, Sikandrabad, Bulandshahar to pass a fresh order, in accordance with law, after affording due opportunity of hearing to the petitioner - Petition disposed off by way of remand.
-
2024 (5) TMI 917 - ALLAHABAD HIGH COURT
Rejection of appeal filed by the petitioner - time limitation - appeal rejected on the ground that the same were time barred, as the self-certified copy of the decision or order was not made available within time as per proviso to Rule 108 of the Central Goods and Services Tax Rules, 2017 - appeal has been filed electronically within the time frame prescribed - HELD THAT:- Various High Courts have held that when an assessee files a memo of appeal in the GST Portal, non submission of certified copy would be treated as mere technical defect and the appeal should not be dismissed on the sole ground of non submission of certified copy within time.
The Orissa High Court in the case of M/S. ATLAS PVC PIPES LIMITED VERSUS STATE OF ODISHA & OTHERS [2022 (7) TMI 130 - ORISSA HIGH COURT] held 'Since the petitioner has enclosed the copy of impugned order as made available to it in the GST portal while filing Memo of Appeal, non-submission of certified copy, as has rightly been conceded by the Additional Standing Counsel appearing on behalf of CT&GST Organisation, is to be treated as mere technical defect.'
Furthermore, the High Court of Madras in the case of M/S. PKV AGENCIES, REPRESENTED BY ITS PARTNER P. VIGNESH VERSUS THE APPELLATE DEPUTY COMMISSIONER (GST) (APPEALS) , VELLORE, THE STATE TAX OFFICER (CIC) , VELLORE. [2023 (2) TMI 932 - MADRAS HIGH COURT] where it was highlighted that the requirement to furnish a certified copy within seven days of filing an appeal is procedural and can be condoned. The court stressed that failure to submit the certified copy within the stipulated time frame should not automatically result in the dismissal of the appeal.
Keeping in mind the judgments passed by these High Courts and upon examination of Section 107 of the Central Goods and Services Tax Act, 2017 read with Rule 108 of the Central Goods and Service Tax Rules, 2017, mere non filing of the certified copy of the decision within a period of seven days, when the appeal has been filed electronically within the time frame prescribed, that is, three months, the authority should not dismiss the appeal on the ground that the certified copy of the decision was not filed within time.
The impugned order is set aside - petition allowed.
-
2024 (5) TMI 916 - ALLAHABAD HIGH COURT
Seeking grant of bail - claiming fake input tax credits, without actually supplying goods - admission by statements given by applicant, which was subsequently retracted - HELD THAT:- Statement of the applicant is shown to have been recorded on 21st, 22nd, 23rd and 27th March, 2024 and he is shown to have confessed his guilt in the process of issuance of fake invoices to obtain input tax credits without supplying any goods. Initially, the applicant is shown to have confessed his involvement in registration of 20 firms for Deepanshu Srivastava, but during the course of investigation, it was found that the applicant was actively involved in selling of as many as 77 fake firms and creating other 20 firms for Deepanshu Srivastava which have been used by Deepanshu Srivastava for issuing fake invoices to avail illegal input tax credits without supplying any goods. The illegal input tax credits obtained by the applicant for Deepanshu Srivastava amounts to Rs. 144.14 Crore.
The admission of the applicant, which according to learned Senior Advocate appearing for the applicant has been retracted, would show that shelf-companies have been created by the applicant using someone else’s KYC documents and were sold to the main accused- Deepanshu Srivastava at the cost of Rs. 35000-50000 each for a commission of Rs. 2000-3000. The allegations which are emerging in the confessional statements of the applicant are also showing him in close association with the co-accused- Deepanshu Srivastava so as to help him in sharing ID password of the firms and also in issuing fake invoices/bills and creation of supply chain.
The role of the instant applicant in the alleged crime is much lesser than the role of co-accused- Deepanshu Srivastava who has already been enlarged on bail by this court. Nothing has been canvassed by the Department before this court which may suggest the necessity of the further detention of applicant in the prison in the background that no request for custodial interrogation has been made by the Department at the time of remand of the applicant, before Magistrate.
Keeping in view the fact that the applicant had appeared before the Department and his statements had been recorded on 21st, 22nd, 23rd and 27th March, 2024 and thereafter he was arrested on 28th March, 2024 and was produced before the Magistrate and no request for custodial interrogation was made by the Department at that point of time and also keeping in view the fact that the applicant is in jail in this case since 29.03.2024 and investigation appears to have reached at an advanced stage and nothing has been shown before this court which may justify the further detention of the applicant in prison, a case of bail is emerging in favour of the applicant - apprehension of the Department pertaining to non-cooperation of the applicant in investigation while on bail may be taken care of by placing adequate conditions upon the applicant.
Let the accused/applicant- Mohit Kumar, involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to fulfilment of conditions imposed - bail application allowed.
-
2024 (5) TMI 915 - CALCUTTA HIGH COURT
Detention of goods - time limitation - appeal rejection due to technical glitch - power of appellate authority to condone delay - HELD THAT:- Although, it appears that the appellate authority by placing reliance on section 107 (4) of the said Act observed that the appellate authority is competent to condone the delay in preferring the appeal, provided the same is filed within one of the time prescribed, the said issue had already been decided by the Hon’ble Division Bench of this Court in the case of S.K. Chakraborty and sons v. Union of India & Ors., [2023 (12) TMI 290 - CALCUTTA HIGH COURT]. In the aforesaid judgment this Hon’ble Division Bench while interpreting the provisions of the said Act having regard to Section 29(2) of the Limitation Act, 1963 has held that since there is no expressed or implied exclusion of Section 5 of the Limitation Act, 1963, by virtue of Section 29 (2) of the Limitation Act, 1963, Section 5 of the Limitation Act, 1963 stands attracted.
The present case is, however, still more peculiar. In this case although, the petitioner’s appeal was filed within time, by reasons of technical glitches the same was rejected. When the petitioner preferred the second appeal, as there is no option to seek review of the first appeal, the second appeal was rejected on the ground that there is no provision under Section 107 of the said Act to entertain the second appeal - considering the peculiar facts of the case, the petitioner’s statutory right to challenge the order passed under Section 129 (3) of the said Act cannot be defeated by reason of technical glitches.
The appeal filed by the petitioner is restored by setting aside the orders of rejection dated 30th June, 2023 and 19th September, 2023. The appellate authority is directed to hear out both the appeals by treating the same to be a composite appeal on merit, without insisting for any pre deposit from the petitioner - petition disposed off.
-
2024 (5) TMI 914 - UTTARAKHAND HIGH COURT
Denial of ITC - appellant as the supplier - appellant neither paid the tax nor has filed the returns - the invoices of sale made to the suppliers are with the appellant, and on the basis of the invoices the payments were made - proceedings u/s 74 can be initiated against appellant for availing ITC in a fraudulent manner or not? - HELD THAT:- Keeping in view the provisions of section 107 (6) (d) of the Uttarakhand Goods and Services Tax Act 2017, the order dated is being modified that since the appellant has produced all the invoices from the suppliers, and it was the duty of the suppliers to further file their returns, which they have not done, the order is being modified that appellant will deposit 10% of the amount, which is being demanded by the respondents.
Appeal disposed off.
-
2024 (5) TMI 913 - MADRAS HIGH COURT
Confirmation to tax together with interest under Section 50 of the TNGST Act, 2017 and the penalty under Section 73(9) of the said Act - exemption from GST - health services - difference in the turnover - Tax on testing tax - Tax on RCM towards rent - Tax on other income - Tax on RCM towards professional fees.
Tax on testing tax - Tax on RCM towards rent - Tax on other income - Tax on RCM towards professional fees - HELD THAT:- Prima facie, the petitioner appears to be entitled for exemption under the Notification No.12/2017-CT (Rate) dated 28.06.2017 insofar these services are concerned and under Notification No.13/2017-CT (Rate) dated 28.06.2017
Difference in the turnover - HELD THAT:- The submission of the learned counsel for the petitioner is reasonable as there was an erroneous consideration of the turnover/income in the profit and loss account for the period in dispute which includes the period covered by pre-GST era under the provisions of the Finance Act, 1994.
Considering the fact that this issue would require a proper and detailed consideration by the respondent and considering the fact that many of the grounds which are canvassed before this Court were not taken up by the petitioner before the respondent which has culminated in the impugned order, the impugned order is set aside and the case is remitted back to the respondent to pass a fresh order on merits and in accordance with law, within a period of 8 weeks from the date of receipt of a copy of this order.
Petition allowed by way of remand.
-
2024 (5) TMI 878 - SC ORDER
Interest on the delayed disbursal of amount of Budgetary Support already sanctioned - Budgetary Support Scheme - it was held by CESTAT that 'The petitioner are no entitled to interest on the amount disabused to it under the Scheme' - HELD THAT:- It is not required to interfere in the matter. The Special Leave Petitions are hence dismissed.
-
2024 (5) TMI 877 - CALCUTTA HIGH COURT
Validity of assessment order u/s 74 of the West Bengal Goods and Services Tax Act, 2017 - the order of the adjudicating authority as well as the appellate authority is based on a report filed by the Irrigation and Waterways Directorate, Govt. of West Bengal - non-compliance with the principles of natural justice - HELD THAT:- When the report of the Irrigation and Waterways Directorate formed the foundation of the adjudication, it was incumbent upon the Revenue to supply a copy thereof to the writ petitioner so that he could effectively address the substance of the report.
In view of that non-compliance with the principles of natural justice in this matter, the order dated April 13, 2023 passed by respondent no. 2 is set aside.
The respondent no. 2 is directed to rehear the appeal after supplying the petitioner, a copy of the said report dated January 3, 2020 upon the writ petitioner. The appellate authority shall conclude the entire exercise within a period of one month from the date of communication of this order.
-
2024 (5) TMI 876 - AUTHORITY FOR ADVANCE RULING, WEST BENGAL
Maintainability of advance ruling application - Scope of Advance Ruling - HELD THAT:- In terms of clause (a) of section 95 of the GST Act, an advance ruling means a decision provided by this authority or the appellate authority, as the case may be, on matters or any questions specified in sub section (2) of section 97 or sub section (1) of section 100 of the GST Act in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant. An application for obtaining an advance ruling is to be made on the common portal in FORM GST ARA-01.
However, in the instant case, no question is found to have been raised by the applicant against the specified column of the application in FORM GST ARA-01. The applicant has enclosed an annexure with the application. The applicant, even in the said document so annexed, has not stated any questions on which the advance ruling is sought. The said document is found to be a statement on “Auditors‟ comments on Emphasis of Matter in Independent Auditors‟ Report for Financial Year 2021-2022 and Management Reply against the comment thereto.”
There cannot be any reason to admit the application. The application, therefore, is rejected.
-
2024 (5) TMI 875 - MADRAS HIGH COURT
Validity of assessment order and bank attachment notice - no personal hearing provided - petitioner asserts that the intimation notice and show cause notice did not contain particulars as to how the liability was arrived at - violation of principles of natural justice - HELD THAT:- The documents on record disclose that the petitioner was not heard before the order was issued. It also appears that only the summary of the assessment order was uploaded on the GST portal. In those circumstances, the impugned orders call for interference subject to putting the petitioner on terms.
The impugned assessment order and the consequential attachment notice are quashed subject to the condition that the petitioner remits 10% of the disputed tax demand within a maximum period of two weeks from the date of receipt of a copy of this order. Subject to fulfilment of the said condition, the assessing officer is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh assessment order within a period of two months from the date of receipt of 10% of the disputed tax demand.
The writ petition is disposed of.
-
2024 (5) TMI 872 - ALLAHABAD HIGH COURT
Cancellation of registration of the petitioners' proprietorship concern - Time limitation - unreasoned order - total non application of mind by the authority concerned while cancelling the G.S.T registration of the petitioner - HELD THAT:- The appeal filed against the order has been dismissed on the ground of limitation only.
Bar of limitation may bar the remedy of appeal but it does not bar the petitioner's right to seek his constitutional remedy under Article 226 of the Constitution of India, particularly when the impugned order affects valuable rights of the petitioner and the same has been passed without assigning any reason.
The writ petition is disposed of.
-
2024 (5) TMI 869 - ANDHRA PRADESH HIGH COURT
Time Limitation - Rejection of appeal filed by the petitioner - appeal was filed with a delay beyond the condonable period - Physical copies being submitted on 24.04.2023, beyond the condonable period while electronic filing was within the time limit - HELD THAT:- On perusal of the copy of the screen shot filed along with the material papers, there are some force in the submission of learned counsel. Since admittedly the copy of the assessment order dated 20.07.2022 was already placed on the department website, the petitioner gave the reference of the said order while filing the appeal electronically. Therefore, there are force in the submission that the requirement was substantially met. Therefore, the 1st respondent ought to have taken the date of filing of the appeal as 26.09.2022 for all practical purposes. However, the 1st respondent took the date of filing as 24.04.2023, as on the date the appeal was filed along with the documents physically.
This approach of the 1st respondent cannot be accepted. Electronical filing of the appeal is a facilitation given to the assessees. That being so, the copy of the impugned order which was already available on the web can be mentioned for easy reference.
The appeal filed by the petitioner in electronic mode is held as well within time and the matter is remitted back to the 1st respondent to register the appeal and decide the same in accordance with the governing law and rules expeditiously - Petition allowed by way of remand.
-
2024 (5) TMI 867 - ALLAHABAD HIGH COURT
Cancellation of registration of petitioner - Time Limitation - non-application of mind - violation of principles of natural justice - HELD THAT:- In the present case, the facts are similar to one in Surendra Bahadur Singh's case [2023 (8) TMI 1262 - ALLAHABAD HIGH COURT], wherein the appeal was barred by time under Section 107 of the Act. However, the Division Bench in Surendra Bahadur Singh's case took into consideration the original order and set aside the same being non-reasoned and allowed the petitioner therein to file reply to the show cause notice.
The orders impugned herein are liable to be set aside - Petition allowed.
-
2024 (5) TMI 866 - ALLAHABAD HIGH COURT
Cancellation of registration of petitioner - non-application of mind - time limitation - HELD THAT:- In the present case, the facts are similar to one in Surendra Bahadur Singh's case [2023 (8) TMI 1262 - ALLAHABAD HIGH COURT], wherein the appeal was barred by time under Section 107 of the Act. However, the Division Bench in Surendra Bahadur Singh's case took into consideration the original order and set aside the same being non-reasoned and allowed the petitioner therein to file reply to the show cause notice.
The orders impugned herein are liable to be set aside. Accordingly, the order in original dated March 2, 2022 and the appellate order dated April 1, 2024 are quashed and set aside - The writ petition is allowed.
-
2024 (5) TMI 865 - ALLAHABAD HIGH COURT
Cancellation of registration of petitioner - order for cancellation of registration has been passed without any application of mind - violation of principles of natural justice - HELD THAT:- In the present case, the facts are similar to one in Surendra Bahadur Singh's case [2023 (8) TMI 1262 - ALLAHABAD HIGH COURT], wherein the appeal was barred by time under Section 107 of the Act. However, the Division Bench in Surendra Bahadur Singh's case took into consideration the original order and set aside the same being non-reasoned and allowed the petitioner therein to file reply to the show cause notice.
The orders impugned herein are liable to be set aside. Accordingly, the order in original dated February 22, 2023 and the appellate order dated April 4, 2024 are quashed and set aside - the writ petition is allowed.
-
2024 (5) TMI 827 - DELHI HIGH COURT
Violation of principles of natural justice - the impugned order does not take into consideration the reply submitted by the Petitioner and is a cryptic order - demand including penalty - HELD THAT:- The observation in the impugned order dated 29.12.2023 is not sustainable for the reasons that the reply dated 25.10.2023 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 incomplete, not duly supported by adequate documents, unable to clarify the issue 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 dated 29.12.2023 cannot be sustained and is set aside. The Show Cause Notice is remitted to the Proper Officer for re-adjudication - Petition disposed off.
-
2024 (5) TMI 826 - DELHI HIGH COURT
Violation of principles of natural justice - impugned order notes that as neither any reply was received from the noticee nor any one attended the hearing - HELD THAT:- As conceded by the respondent that a reply was filed but the same was not taken into account by the Adjudicating Authority while passing the impugned order. The impugned order is accordingly set aside. The show cause notice is restored on the record of the Adjudicating Authority. The Adjudicating Authority shall decide the show cause notice in accordance with law after giving one opportunity of personal hearing to the petitioner.
It is clarified that in case petitioner once again fails to appear pursuant to the hearing being granted, the Adjudicating Authority would be at liberty to proceed further with the adjudication of the show cause notice ex-parte. However, after taking into consideration the reply filed by the petitioner.
The petition is disposed off.
........
|
