|
Advanced Search Options
Case Laws
Showing 1 to 20 of 425041 Records
-
2025 (2) TMI 368
Challenge to impugned Assessment cum penalty cum Interest Order - violative of the principles of natural justice - it was held by High Court that 'Having found that the petitioner filed this writ petition against the impugned assessment order without availing the alternative remedy available to him, without expressing the views on the merits of the case, the writ petition is disposed off affording opportunity to the petitioner to approach the appellate authority.'
HELD THAT:- This Special Leave Petition by permitting the petitioner herein to avail the alternative remedy.
SLP disposed off.
-
2025 (2) TMI 367
Seeking permission to withdraw the present special leave petition - It is stated that all pleas and contentions will be raised in the reply to the show cause notice, and may be considered by the authorities deciding/adjudicating upon the show cause notice - HELD THAT:- In view of the statement made, the special leave petition is dismissed as withdrawn with liberty as prayed.
-
2025 (2) TMI 366
Dismissal of appeals on the ground of limitation as per Section 107 of the Central and Goods Services Tax Act, 2017 - power of Appellate Authority under Section 107 (4) of the CGST Act to condone the delay in filing an appeal beyond one month after the expiration of the three-month period specified in Sub-section (1) of Section 107 for filing an appeal against a decision or order issued by an adjudicating authority under the CGST Act - HELD THAT:- An assessee aggrieved by an order passed by the Adjudicating Authority may appeal to the Appellate Authority within three months from the date on which the said decision or order is communicated to such person. Sub-Section (4) of Section 107 of the CGST Act provides discretion to the Appellate Authority to entertain an appeal if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the prescribed three-month period, provided the appeal is presented within an additional period of one month.
It is well settled that once a statute prescribes a specific period of limitation, the Appellate Authority does not inherently hold any power to condone the delay in filing the appeal by invoking the provisions of Section 5 or 29 of the Limitation Act, 1963.
Reference can be invited to the decision of the Chhattisgarh High Court in Nandan Steels & Power Ltd. v. State of Chhattisgarh [2022 (8) TMI 631 - CHHATTISGARH HIGH COURT] wherein it was held that the statutory timeline for filing an appeal under Section 107 (1) of the CGST Act is three months from the date the decision or order is communicated to the appellant. However, Section 107 (4) provides a limited extension of one additional month, at the discretion of the appellate authority, if sufficient cause is demonstrated. The Court observed that the Legislature, while allowing an extension in specific instances, did not intend for the Limitation Act to apply to proceedings under the CGST Act.
Conclusion - The power to condone delay caused in pursuing a statutory remedy would always be dependent upon the statutory provision that governs. The right to seek condonation of delay and invoke the discretionary power inhering in an appellate authority would depend upon whether the statute creates a special and independent regime with respect to limitation or leaves an avenue open for the appellant to invoke the general provisions of the Limitation Act to seek condonation of delay. The facility to seek condonation can be resorted provided the legislation does not construct an independent regime with respect to an appeal being preferred. Once it is found that the legislation incorporates a provision which creates a special period of limitation and proscribes the same being entertained after a terminal date, the general provisions of the Limitation Act would cease to apply.
Each of the appeals was filed beyond the prescribed period of limitation provided by Sections 107 (1) and 107 (4) of the CGST Act, the aforesaid writ petitions lack merit and are accordingly dismissed.
-
2025 (2) TMI 365
Challenge to SCN issued under Section 74 of the Central Goods and Services Tax Act, 2017/State Goods and Services Tax Act, 2017 - HELD THAT:- Section 74 (1) of the CGST Act/SGST Act authorises the proper officer to issue a notice to show cause. Sub-Section (2) of Section 74 envisages that such notice shall be issued six months prior to the time limit specified under sub-Section (10) of Section 74 - It is also the mandate of the statute that the proper officer shall issue the order under sub-Section (9) of Section 74 within a period of five years from the due date of submission of the annual return.
The power of the High Court under Article 226 of the Constitution of India cannot be invoked by the assessee, who is faced with a notice under Section 74 seeking a part adjudication of the lis, which is pending before the proper officer. Of course, in a given situation, when it is alleged that there is a total lack of jurisdiction in issuance of the show cause notice, the High Court may exercise its discretion in entertaining the writ petition. But, as a general rule, the writ petition against the issuance of a show cause notice under Section 74 of the CGST Act/SGST Act cannot be entertained.
In D.P. Maheswari v. Delhi Administration & Ors [1983 (9) TMI 317 - SUPREME COURT] the Supreme Court has clearly delineated the jurisdiction of the High Court in entertaining the writ petition against preliminary issues. Though the Supreme Court was considering the power of the labour courts and the industrial tribunals under the Industrial Disputes Act, 1947 on deciding the preliminary issues raised before it, we find that the principle laid down by the Supreme Court can very well be applied to taxation laws as well. We thus hold that the jurisdiction of the High Court under Article 226 of the Constitution of India cannot be allowed to be exploited by those who can afford to wait to the detriment to those who cannot afford to wait by dragging the latter to the court for adjudication on peripheral issues, avoiding decision on the issues more vital to them.
Conclusion - Going by the time limit prescribed under sub-Section (10) of Section 74 of the CGST Act/SGST Act, the adjudication has to be completed by 8.2.2025. However, in view of the interim order passed in the writ petition staying further proceedings under Section 74, which was in operation for a period of seven days, the Revenue will get the benefit of the stay and the period of adjudication will expire only on 15.2.2025.
Appeal allowed.
-
2025 (2) TMI 364
Valid pre-deposit for the purpose of filing an appeal against the order-in-original or not - payment made by the petitioner through Form GST DRC-03 - HELD THAT:- In this case, due to non-availability of facilities to pay the pre-deposit through online for filing an appeal against the original order, the petitioner has voluntarily made the said payment of pre-deposit through Form GST DRC-03 on 19.03.2024 and filed their appeal on 20.03.2024. Subsequently, Form GST DRC-03A was introduced vide Notification dated 10.07.2024. Under these circumstances, the appeal filed by the petitioner was rejected by the respondent vide impugned order dated 26.07.2024 by stating that no pre-deposit was made through Form GST DRC-03A.
A perusal of Circular No.224/18/2024-GST dated 11.07.2024 makes it clear that the said circular talks about the difficulties faced by the Assesee in payment of pre-deposit and on that aspect, the clarification has been issued by the Department to the extent that the voluntary payment made in Form GST DRC-03 shall be consider as pre-deposit paid through Form GST DRC- 03A. Accordingly, the petitioner made the payment of pre-deposit through Form GST DRC-03.
Though this Court has already adjourned this matter during the 7 earlier occasions, till date, no verification was made by the respondent. Further, it was submitted by the petitioner that the said amount is still lying in Form GST DRC-03. In such case, if at all if there is any discrepancies, the same shall be verified and reported before this Court by the respondent.
Conclusion - The appeal filed by the petitioner was rejected by the respondent vide impugned order dated 26.07.2024 by stating that no pre-deposit was made through Form GST DRC-03A.
The rejection order dated 26.07.2024 is set aside and the appeal filed by the petitioner is restored. The amount paid by the petitioner through Form GST DRC-03 shall be considered as pre-deposit for filing the appeal - Petition disposed off.
-
2025 (2) TMI 363
Principles of natural justice - petitioner was not granted sufficient time either for filing reply manually or appear for personal hearing - receipt of advancesale transaction that took place outside the State - HELD THAT:- If, according to the respondent, the reply filed/uploaded by the petitioner was not visible clearly, atleast, they ought to have granted sufficient time to the petitioner, so as to enable them in filing reply manually by sending notice through RPAD or any other mode of communication, which the petitioner could have easy access. Often the Officials attached to the respondent-Department not only in the present case, but also in umpteen numbers of case are continuously in the habit of merely uploading the Notice calling forth assessee’s reply/Notice of Personal Hearing, automatically under the view 'Additional Notice Column'', which assessee’s are failing to notice, (as the assessee’s could not be expected to view the Online portal every now and then. Hence, this Court feels that the Officials attached to the respondent-Department could adopt the practice of sending Notice calling forth assessee’s reply/Notice of Personal Hearing, by way of RPAD and by doing so, the assessee’s cannot take advantage of pleading ignorance of such notices and the precious time of the respondent- Department would not get wasted.
Further, in the present case, it is seen that by virtue of the Reminder Notice No.3, dated 22.04.2024, the petitioner was called upon to appear for the personal hearing within 24 hours (i.e. on 23.04.2024) and file reply manually within 48 hours (24.04.2024) and within another 24 hours, the impugned order came to be passed i.e. 25.04.2024. Had the real intention of the respondent is to provide fair opportunity of hearing to the petitioner-assessee to put forth their defence, the same should be extended to the petitioner-assessee and it should not be a nominal one. Thus, in the present case, under the guise of providing opportunity, the petitioner-assessee has been called for to file reply within a short span of time. Therefore, as rightly pointed out by the learned counsel for the respondent, the impugned order is arbitrary, illegal and suffers from violation of principles of natural justice, as the reply filed by the petitioner was not properly appreciated.
Conclusion - The impugned order is arbitrary, illegal and suffers from violation of principles of natural justice, as the reply filed by the petitioner was not properly appreciated. The matter is remanded back to the respondent for reconsideration.
Petition allowed by way of remand.
-
2025 (2) TMI 362
SCN issued within time limitation or not - requirement to carry out assessment in relation to short payment of tax etc - HELD THAT:- The Hon’ble Supreme Court in the case of Himachal Pradesh and Another vs. Himachal Techno Engineers and Another [2010 (7) TMI 875 - SUPREME COURT] were considering the time limit of three months set out in Section 34 of the Arbitration and Conciliation Act, 1996. In that case, the award had been passed, on 05.11.2007, and a petition under Section 34 was filed, on 11.03.2008. The said application was rejected on the ground that the period within which the application should have been filed was three months which would be 90 days reckoned from 11.11.2007 and ending on 10.11.2007 and a further grace period of 30 days which would end on 10.03.2008 whereas the application was filed on 11.03.2008 - the Hon’ble Supreme Court held that the petition filed, on 11.03.2008, was well in time and was not barred by limitation.
Whether the delay of two days in issuing the said notice can be condoned or whether the issue is not relevant as the provision is only directory? - HELD THAT:- Section 75 of the GST Act, stipulates that the tax payer is not only entitled to a notice before any assessment is carried out but also the right of personal hearing, irrespective of whether such personal hearing is requested. When there is a possibility of an adverse order being passed against tax payer, the facility of obtaining at least three adjournments for personal hearing etc. The said provisions, protecting the interest of the tax payer, would be rendered otiose if notice should permitted to be sent without a minimum waiting period. The said protections can then be bypassed by the authorities issuing show cause notice with a week’s time or 10 days and calling upon tax payer to put forth his objections in that shortened time. That does not appear to be intent of the provisions of Section 75 (2) or Section 73 (10) of the GST Act - the time permit set out under 73 (2) of the Act is mandatory and any violation of that time period cannot be condoned, and would render the show cause notice otiose.
Conclusion - The time limit set out in Section 73 (2) is mandatory and any violation of this period renders the show cause notice void.
Petition allowed.
-
2025 (2) TMI 361
Stay on impugned appellate order pending the constitution of the Appellate Tribunal - reliance placed on Circular No.224/18/2024-GST dated 11th July, 2024 - recovery of outstanding dues in cases wherein first appeal has been disposed of, till Appellate Tribunal comes into operation - HELD THAT:- Having considered the materials on record as also taking note of the fact that the Appellate Tribunal is yet to be constituted, the petition should be heard.
Since, the petitioners have been able to make out a prima facie case, there shall be an unconditional stay of the demand of the Appellate order dated 31st May, 2024 for a period of two weeks from date.
In the event, the petitioners make payment of 10% of the balance amount of tax in dispute, in addition to the amount already deposited in terms of Section 107(6) of the said Act, within two weeks from date, the interim order passed herein, shall continue till the disposal of the writ petition or until further order, whichever is earlier.
-
2025 (2) TMI 360
Challenge to Summary of SCN - extension of time limit for recovery of tax not paid or what paid or short paid or of input tax credit wrongly availed or utilized - HELD THAT:- Issue notice, returnable in 4 [four] weeks.
As all the respondents have appeared and accepted notices through the learned counsel, issuance of formal notices to the respondents stands dispensed with. However, the learned counsel for the petitioner shall furnish requisite nos. of extra copies of the writ petition along with annexures to the learned counsel for the respondents within 2 [two] working day from today.
As an ad-interim measure, that there shall not be any coercive action against the petitioner pursuant to the impugned Order dated 30.08.2024 [Annexure-1 to the writ petition] till the returnable date.
List the case after 4 [four] weeks.
-
2025 (2) TMI 359
Principles of natural justice - no proper and prior SCN prescribed under sub-section [1] of Section 73 of the Assam Goods and Services Tax Act, 2017 - HELD THAT:- Non-issuance of a proper and prior Show Cause Notice, as contemplated under sub-section [1] of Section 73 of AGST Act, 2017 and issuance of only Summary of Show Cause Notice and Attachment to Determination of Tax cannot be said to be in compliance with sub-section [1] of Section 73 and sub-rule [1] and Rule 142 of the AGST Rules, 2017. A Summary of Show Cause Notice is held to be not a substitute of a Show Cause Notice, contemplated by the provisions of sub-section [1] of Section 73 to set the proceeding in motion.
From the provisions of Section 73, it emerges that the Show Cause Notice is required to be issued by the proper officer, the statement under Section 73 [3] is to be issued by the proper officer as well as the Order under Section 73 [9] is required to be issued by the proper officer. Compliance of the provisions contained in sub-section [1] to sub-section [8] and sub-section [10] to sub-section [11] of Section 73 and sub-rule [1] of Rule 142 are conditions precedent to term an Order passed under sub-section [9] of Section 73 as a valid one.
Having regard to the fact that a proper and prior Show Cause Notice under sub-section [1] of Section 73 of the AGST Act, 2017 was not issued along with the Summary of Show Cause Notice in Form GST DRC-01 [Annexure-B to the writ petition] and the Attachment to Determination of Tax [Annexure-B to the writ petition], and in terms of the observations made in the common Judgment and Order in CONSTRUCTION CATALYSERS PRIVATE LIMITED [2024 (10) TMI 279 - GAUHATI HIGH COURT], the impugned Order is found not sustainable in law and the same deserves to be set aside and quashed.
Petition disposed off.
-
2025 (2) TMI 358
Seeking to call for the records relating to the impugned order - goods detained on the ground of non-generation of e-invoice - HELD THAT:- Snce the impugned order has been passed without taking into consideration of the Circular No.10/2019 dated 31.05.2019, whereby, according to the petitioner the benefit available under the said Circular has not been given effect to by the respondent in entirety, this Court is inclined to set aside the impugned order and remand the matter back to the respondent for re-consideration.
Petition disposed off by way of remand.
-
2025 (2) TMI 357
Seizure of vehicle and the goods of the petitioner - E-way Bill was not present with the goods - HELD THAT:- It is admitted to the State-respondents that during the period from 01.02.2018 to 31.03.2018, the goods which were being transported by the petitioner were not covered with the requirement of the E-way bill.
This view was taken by the Division Bench of this Court in M/S Godrej and Boyce Manufacturing Co. Ltd. Vs. State of U.P. & Others [2018 (9) TMI 1261 - ALLAHABAD HIGH COURT], wherein it has been held that the goods were not covered with the requirement of E-way bill during 12.02.2018 to 13.02.2018.
The impugned demand made against the petitioner is bad and, therefore, set aside by this Court - Petition allowed.
-
2025 (2) TMI 356
Principles of natural justice - first respondent, without waiting for the petitioner's reply, and without hearing the petitioner, passed the impugned orders, which are nothing but ex parte orders - HELD THAT:- On perusal of records, it is crystal clear that the impugned orders came to be passed against the petitioner, behind their back, as the respondent-Department has not taken any steps to serve any notices/communications, which culminated in the impugned orders directly through physical mode of service and made it available only in the GST Portal under the ''View of additional notices and orders' column, which, the petitioner was not aware and ultimately, the impugned orders came to be passed against the petitioner without even affording any opportunity of hearing to the petitioner, which is in total violation of principles of natural justice. Therefore, this Court is of the view that the impugned orders are nothing but an ex parte orders and the same have to be set aside.
The matters are remanded back to the first respondent for fresh consideration.
-
2025 (2) TMI 355
Seeking to quash a letter and to restrain the Respondents from proceeding with a SCN - Whether Petitioner should have paid GST on the supply of textbooks, which are typically tax-exempt, as they were part of a composite supply with platform solution services? - HELD THAT:- This Writ Petition is disposed off by directing that when Respondent No. 3 adjudicates the Show Cause Notice, he shall also take into account the contentions of the Petitioner regarding the non-availment of the ITC and what would be the effect thereto. In other words, the adjudicating authority shall also, at the time of adjudicating the Show Cause Notice, also decide whether the Petitioner is entitled to ITC, if they are held liable to pay tax as alleged in the Show Cause Notice.
Since the time period to pass an Order on the Show Cause Notice expires on 5th February, 2025, the time to pass the Order extended by a further period of eight weeks from today. Before passing the Order, Respondent No. 3, on the limited aspect of Input Tax Credit, shall also give a hearing to the Petitioner and allow them to file the necessary documents.
Petition disposed off.
-
2025 (2) TMI 354
Legality of recovering amount towards the Petitioner’s alleged tax liability including interest - entitlement of refund of amount deposited - validity of provisional attachment orders freezing the Petitioner's bank accounts - HELD THAT:- The account No. 02402560000407 in HDFC Bank Limited shall be unfrozen.
The bank account No. 10072848146 in State Bank of India shall be unfrozen only to the extent of Rs. 70 Lacs. In other words, from this bank account only an amount of Rs. 70 Lacs will be allowed to be utilized. The debit freeze order will continue for any amount above Rs. 70 Lacs.
Application disposed off.
-
2025 (2) TMI 353
Maintainability of petition - availability of alternative remedy - violation of principles of natural justice - HELD THAT:- The appeal was presented out of time. It was preferred against an order passed in the period of pandemic. There is no provision in Odisha Goods and Services Tax Act, 2017 by section 107, for enlarging the period of prescribed time for an appeal to be entertained. As such, revenue’s stand that dismissal of the appeal on ground of delay cannot be interfered with bears substance.
Consequence of petitioner having lost his right of appeal is for petitioner to be rendered remediless. This is not contemplated in law.
Impugned order is set aside and the matter restored to the Assessing Officer (AO) - petition disposed off by way of remand.
-
2025 (2) TMI 352
Refund of pre-deposited amounts - Rejection on the ground of being time barred - whether the application for refund made beyond a period of 2 years should be entertained or not or if it is time barred? - HELD THAT:- There is no dispute to the effect that once refund is by way of statutory exercise, the same cannot be retained neither by the State, nor by the Centre, that too by taking aid of a provision which on the face of it is directory, inasmuch as, the language couched in Section 54 is “may make an application before the expiry of 2 years from the relevant date”.
The word ‘may’ has been interpreted by the Hon’ble Apex Court in numerous cases and the Hon’ble Apex Court has opined that the word ‘may’ as would appear in different statutes, is normally directory in nature and not mandatory.
Recently, the Hon’ble Apex Court in the matter of Muskan Enterprises & Anr. vs. State of Punjab & Anr. [2024 (12) TMI 1528 - SUPREME COURT] has interpreted the word ‘may’ and while dealing with the statute the Negotiable Instrument Act, 1881, has been inter alia pleased to hold that 'Law is well-settled that user of the verbs ‘may’ and ‘shall’ in a statute is not a sure index for determining whether such statute is mandatory or directory in character. The legislative intent has to be gathered looking into other provisions of the enactment, which can throw light to guide one towards a proper determination. Although the legislature is often found to use ‘may’, ‘shall’ or ‘must’ interchangeably, ordinarily ‘may’, having an element of discretion, is directory whereas ‘shall’ and ‘must’ are used in the sense of a mandatory provision. Also, while the general impression is that ‘may’ and ‘shall’ are intended to have their natural meaning, it is the duty of the court to gather the real intention of the legislature by carefully analysing the entire statute, the section and the phrase/expression under consideration. A provision appearing to be directory in form could be mandatory in substance. The substance, rather than the form, being relevant, ultimately it is a matter of construction of the statute in question that is decisive.'
In terms of the interpretation extended by the Hon’ble Apex Court, as also, taking into consideration that the refund of statutory pre-deposit is a right vested on an assessee after an appeal is allowed in its favour, there are no reason to say that the pre-deposit made by an assessee cannot be forfeited taking aid of section 54 of the Act and the same cannot be the intent of the Act of 2017 - It is not even a case that there is any unjust enrichment on the part of the assessee, inasmuch as, the pre-deposit has been made from the own pocket by an assessee and by restricting the refund in reading the word ‘may’ as ‘shall’ would be unreasonable and would otherwise be arbitrary and in conflict with the Limitation Act, 1963.
When the Constitution of India restricts levy of any tax without authority of law, the retention of the same on the ground of statutory restriction, which is in conflict with the Limitation Act, appears to be being misread by the authorities of the GST Department.
Conclusion - i) Article 137 of the Limitation Act provides a three-year limitation period for filing a Money Suit. If Section 54 were interpreted as mandatory, it would bar an assessee from filing a Money Suit, which cannot be the intent of the GST Act. ii) In terms of the interpretation extended by the Hon’ble Apex Court, as also, taking into consideration that the refund of statutory pre-deposit is a right vested on an assessee after an appeal is allowed in its favour, there are no reason to say that the pre-deposit made by an assessee cannot be forfeited taking aid of section 54 of the Act and the same cannot be the intent of the Act of 2017. iii)The action of the respondents in rejecting the refund application considering it as time barred has no legs to stand in law and accordingly, the rejection order by way of Deficiency Memo dated 06.11.2024, is hereby, quashed and set-aside.
The instant writ application stands allowed.
-
2025 (2) TMI 351
Challenge to impugned order passed by the first respondent - neither the show cause notices nor the impugned order of assessment has been served on the petitioner by tender or sending it by RPAD - mismatch between GSTR-3B and Form 26AS - HELD THAT:- The petitioner shall deposit 25% of the disputed taxes as admitted by the learned counsel for the petitioner and the respondents, within a period of four weeks from the date of receipt of a copy of this order.
The impugned order dated 10.10.2023 is set aside.
Petition disposed off.
-
2025 (2) TMI 350
Challenge to impugned order on the limited ground that the impugned order insofar as the amount of tax demanded in the impugned order is in excess of the amount which was specified in notice under DRC 01 - HELD THAT:- In view of the peculiar facts, it was suggested that Rs. 2 crores may be paid and the matters be remanded back for a fresh consideration, which was agreed to by both the learned counsel for the petitioner as well as for the respondents.
The matters are remanded back to the assessing officer for a de novo consideration subject to the condition the petitioner pays the amount of Rs. 2 Crores within a period of 3 weeks from the date of receipt of a copy of this order. The impugned order of assessment shall be treated as show cause notice and the petitioner shall submit its objections within a period of four (4) weeks from the date of receipt of a copy of this order along with supporting documents/material.
Petition disposed off by way of remand.
-
2025 (2) TMI 349
Cancellation of GST registration of the petitioner - petitioner did not file its return in accordance with law for consecutive six months - HELD THAT:- The issue has already received the attention of the Hon’ble Division Bench in the matter of SUBHANKAR GOLDER VERSUS ASSISTANT COMMISSIONER OF STATE TAX, SERAMPORE CHARGE & ORS. [2024 (5) TMI 1262 - CALCUTTA HIGH COURT]. The Hon’ble Division Bench had observed that 'the appellant can be provided with one more opportunity to remedy the bridge as the appellant being an individual since a small retailer of imitation jewellery, we deem it appropriate that the appellant should be permitted to remedy the bridge.'
The SCN to the writ petition, the order of cancellation of GST registration and the order of the appellate authority to the writ petition stand set aside and quashed subject to petitioner files her GST returns for the entire period of default and pays requisite amount of tax, interest, fine and penalty and/or late fees within four weeks from date. Subject to fulfillment of the above conditions by the petitioner the GST registration of the petitioner shall be restored by the jurisdictional officer.
Petition disposed off.
........
|
9911796707
