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GST - Case Laws
Showing 101 to 120 of 13886 Records
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2024 (11) TMI 600
Seeking direction to the respondents to make payment of the difference in the rate of GST - respondent no.6-PIU submits that the requisite would be released to the petitioner in case the CCL has been received, as claimed by the counsel appearing for respondent no.4 - HELD THAT:- The petitions filed by the petitioner are disposed of - The respondent no.6 is directed to release the amount to the petitioner within a period of one week from the date of this order.
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2024 (11) TMI 599
Challenge to assessment order - opportunity of personal hearing not provided to the petitioner - violation of principles of natural justice - HELD THAT:- Admittedly, no such opportunity of personal hearing was provided to the petitioner.
The provision of Section 75(4) of the GST Act mandates that if an adverse order is going to be passed, it is mandatory to provide an opportunity of personal hearing to the Assessee. However, in the case on hand, though the impugned assessment order was passed against the petitioner by confirming the demand, the respondent had failed to provide an opportunity of personal hearing as per the terms of Section 75(4) of the GST Act. Thus, it is clear that the impugned order was passed in violation of principles of natural justice as well as in contravention of provision of Section 75(4) of the GST Act and hence, the same is liable to be set aside.
The impugned order dated 26.04.2024 is set aside and remanded back to the respondent for re-adjudication - Petition allowed by way of remand.
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2024 (11) TMI 598
Constitutional Validity of Rule 86A of the Central Goods and Service Tax Act / State Goods and Service Tax Rules, 2017 - blocking the Electronic Credit Ledger (ECL) - pre-decisional hearing was not provided to the petitioner nor does the impugned order contain any reason to believe as to why it was necessary to block the Electronic credit ledger - violation of principles of natural justice - HELD THAT:- In K-9-ENTERPRISES, KWALITY METALS, K-9-INDUSTRIES VERSUS THE STATE OF KARNATAKA, THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES, BELAGAVI. [2024 (10) TMI 491 - KARNATAKA HIGH COURT] it was held that 'The aforesaid facts and circumstances are sufficient to come to the unmistakable conclusion that in the absence of valid nor sufficient material which constituted ‘reasons to believe’ which was available with respondents, the mandatory requirements/pre-requisites /ingredients/parameters contained in Rule 86A had not been fulfilled/satisfied by the respondents-revenue who were clearly not entitled to place reliance upon borrowed satisfaction of another officer and pass the impugned orders illegally and arbitrarily blocking the ECL of the appellant by invoking Rule 86A which is not only contrary to law but also the material on record and consequently, the impugned orders deserve to be quashed.'
In the instant case, since no pre-decisional hearing was provided/granted by the respondents before passing the impugned order, coupled with the fact that the impugned order invoking Section 86A of the CGST Rules by blocking of the Electronic credit ledger of the petitioner does not contain independent or cogent reasons to believe except by placing reliance upon the reports of Enforcement authority which is impermissible in law, since the same is on borrowed satisfaction as held by the Hon’ble Division Bench of this Court, the impugned order deserves to be quashed.
It is also pertinent to note that in the impugned order except stating that “respondent received a letter dated 04.12.2023 reporting that the registered taxpayer M/s. Mazhar Enterprises was found to be a bill trader involved in issuance/availment in fake invoices", no other reasons are forthcoming in the impugned order. On this ground also, the impugned order dated 06.05.2024 deserves to be quashed.
Impugned order dated 06.05.2024 at Annexure-A is hereby quashed - The petition is hereby allowed.
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2024 (11) TMI 590
Disallowance of Input Tax Credit - filing of returns prescribed under Section 39 of the CGST Act, 2017 - HELD THAT:- In view of Clause (5) of Section 16 inserted by the Finance (No. 2) Act, 2024, with effect from 01.07.2017, the respondents are directed to allow the petitioner to take Input Tax Credit in respect of delayed returns filed for the Financial Year 2019-20, and the interest and penalty levied on the petitioner by the respondents shall be refunded with 6% p.a. interest from the date of such collection till the date of repayment.
This writ petition stands disposed of.
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2024 (11) TMI 589
Challenge to proceedings initiated u/s 129 of the CGST Act read with Section 20 of the IGST Act - penalty order - movement of goods without proper documents - HELD THAT:- The facts are not in dispute that the documents in question which were accompanied the goods, were dated 01.10.2024 and at the time of interception of the vehicle, the requisites were found. The notice issued by the respondents indicated the fact of the registration being suspended by the jurisdictional authorities at Bihar on 03.10.2024, based on which, the penalty has been imposed under provisions of Section 129(1)(b) of the Act.
A coordinate Bench of this Court in the case of Halder Enterprises [2023 (12) TMI 514 - ALLAHABAD HIGH COURT], wherein, the goods were intercepted on 03.10.2023 and the suspension took place on 06.10.2023 w.e.f. 18.09.2023, after referring to the orders of this Court in M/s Sahil Traders v. State of U.P. and another, [2023 (6) TMI 360 - ALLAHABAD HIGH COURT] and M/s Sanjay Sales Agency v. State of U.P. and another, 2023 [2023 (10) TMI 641 - ALLAHABAD HIGH COURT], and provisions of Section 129 came to the conclusion that once the goods were found with proper tax invoice and E-way bill belonging to the petitioner, the circular dated 31.12.2018 would apply and the petitioner would be deemed to be owner of the goods and the same was to be released in terms of Section 129 (1) (a) of the CGST Act.
In the present case also, as noticed hereinbefore this is not the case of the respondents that the goods were not accompanied with proper tax invoice and E-way bill and only on account of the fact that the registration was suspended on 03.10.2024 that the action has been initiated and the order impugned has been passed as such the issue stands covered.
The impugned order is set aside - petition allowed.
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2024 (11) TMI 588
Challenge is to the SCN issued by the respondent under the provisions of the Central Goods and Services Tax Act, 2017 (CGST Act), Integrated Goods and Services Tax Act, 2017 (IGST Act) and Maharashtra Goods and Services Tax Act, 2017 (MGST Act) - Jurisdiction of SCN - HELD THAT:- In most of these petitions, the petitioners have questioned the impugned show cause notices cum tax demands without participating in the adjudication process in pursuance of the impugned show cause notices. In one of the petitions, leave is sought to amend by challenging the order made on the impugned show cause notice during the petition's pendency. In yet another petition, the challenge is to the order made after adjudication of the show cause notice, among other things, on the ground that the show cause notice was itself without jurisdiction.
he main contention is that taxes have been demanded for services in relation to functions entrusted to the MCGM under Article 243W of the Constitution, even though the exemption notifications exempt or precisely impose only a nil tax rate on such services. No case is made out to establish that such a contention cannot be considered by the adjudicating authorities or the appellate authorities should the adjudication be complete and the adjudication orders affect any parties adversely.
The contention that these petitions involve no disputed questions of fact cannot be accepted. The factual element regarding each of the demands will have to be examined and evaluated against the backdrop of the exemption or the nil tax rate notifications relied upon by the petitioners. The adjudicating authority will also have to determine whether the activities or services regarding which tax is demanded relate to any functions entrusted to the MCGM under Article 243W of the Constitution.
In Whirlpool Corporation [1998 (10) TMI 510 - SUPREME COURT], the Hon’ble Supreme Court explained that Writ Petitions may be entertained against show cause notices where the petitioners seek enforcement of any fundamental rights, where there is a violation of principles of natural justice or where the order or proceedings are wholly without jurisdiction or where the vires of the Act is itself challenged. None of these circumstances are made out in the present batch of petitions. Simply alleging that the impugned show cause notices are without jurisdiction because, according to the petitioners’ perception, the exemption covers them, or the nil tax rate notification is insufficient. The usual adjudicatory process, where such a matter can be effectively adjudicated upon, cannot be scuttled by rushing to the writ court and securing stays on the adjudicatory process.
In the present petitions, the issue of whether the petitioners’ cases are covered by the exemption notification or the nil tax rate notification is debatable. The petitioners themselves accept that some of the services in the SCN may attract exemption and others may not. Ordinarily, SCNs cannot be split or quashed, especially where there are arguable issues on either side. In any case, the resolution would require examination into several factual aspects. In such situations, the contention of the SCN being wholly without jurisdiction cannot be accepted.
Thus, no case has been made by any of the petitioners to bypass the statutory alternate remedies and insist upon the entertainment of these petitions. No case is also made to grant the petitioner in Writ Petition No. 3624/2024 leave to amend the Writ Petition and challenge the order dated 30 April 2024 - petition dismissed.
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2024 (11) TMI 587
Rejection of TRANS-1 claim for Central Excise Duty due to wrong filing in wrong Column, i.e. 6(A) instead of Column 5(A)/7(A) - HELD THAT:- Copy of the petition has been served on the counsel representing the respondents, who have raised objection about the delay in filing the petition as the order impugned was passed on 24.02.2023 and the petition has been filed on 23.10.2024 without any explanation in this regard. On the merit of the case, reliance was placed in UNION OF INDIA VERSUS BHARTI AIRTEL LTD. & ORS. [2021 (11) TMI 109 - SUPREME COURT], however, presently no submission has been made on the plea raised pertaining to availability of credit to the tune of Rs. 30,20,268.52.
Issue notice to respondents - As the respondents are duly represented, no need to issue fresh notice.
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2024 (11) TMI 586
Dismissal of application moved by the petitioner for summoning official of GST Department, Ludhiana along with record of GST 3B return - HELD THAT:- Admittedly and evidently, the complaint filed by the respondent and pending before the learned trial Magistrate is at the stage of producing evidence of the respondent. No doubt, the petitioners have a right to cross-examine the respondent-complainant and the witnesses to be produced by her. Simultaneously, it is the right of the petitioners to confront the respondent-complainant or her witnesses with some document. However, that does not make the petitioners entitled to summon any witness at the stage when the respondent-complainant is availing her right to produce her own evidence. More so, as reflected, it was only some document in the form of GST 3B return which the petitioners want to be produced on record so that the same can be put to the respondent-complainant or the witnesses to be examined by her. Such a document can even otherwise be put to the respondent-complainant by the petitioners and not by way of summoning a witness from GST Department.
The learned trial Magistrate after taking all these facts and circumstances into consideration and by passing a speaking and well-reasoned order, had dismissed the application moved by the petitioners and in view of the discussion as made above, there are no reason to come to any contrary conclusion.
Accordingly, finding no merit, the petition is dismissed.
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2024 (11) TMI 585
Vires of Section 17 (5) (c) & (d) of Central Goods and Service Tax Act, 2017 - eligibility to claim input tax credit on GST paid on the purchase of land and constructions done - HELD THAT:- The issue raised in this petition is no longer res integra and is covered by the decision of Supreme Court in Chief Commissioner of Central Goods and Service Tax & Ors. Versus M/s Safari Retreats Private Ltd. & Ors. [2024 (10) TMI 286 - SUPREME COURT] where Supreme Court held 'challenge to the constitutional validity of clauses (c) and (d) of Section 17 (5) and Section 16(4) of the CGST Act is not established.'
The issue in the present petition on merits is that the petitioner wants to avail input tax credit on GST paid on the purchase of land and constructions done thereon.
The Supreme Court has upheld the vires of Section 17 (5)(c) & (d) of CGST Act. The petitions are disposed of with liberty to the petitioners to file the claim before the respondents for availing the ITC and same shall be considered in accordance with law.
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2024 (11) TMI 584
Online betting - The role of GST Intelligence and its proceedings - offences under Sections 120B and 420 of the IPC and Section 66D of the Information Technology Act, 2000 - seeking more time to investigate into the matter - whether the allegations would meet the ingredients of Section 415 of the IPC and Section 66D of the Act? - HELD THAT:- Section 415 of the IPC mandates that ‘whoever by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person’. Therefore, there should be a person who has been deceived and the deception should be from the inception, all with an dishonest intention to commit fraud.
A perusal at the complaint would not indicate any person complaining against the petitioners. Therefore, there has been no person who has been deceived. Unless there is any person who has been hoodwinked, the ingredients under Section 415 of the IPC cannot be met. Interpretation of the offence of cheating under Section 415 of the IPC need not detain this Court for long or delve deep into the matter as the Apex Court in plethora of judgments has elucidated what is necessary for an offence under Section 415 of the IPC, for it to become punishable under Section 420 of the IPC.
The Apex Court in the case of VIJAY KUMAR GHAI AND OTHERS v. STATE OF WEST BENGAL AND OTHERS [2022 (3) TMI 1527 - SUPREME COURT] reiterated the entire spectrum of law with regard to criminal breach of trust and cheating and has held 'Having gone through the complaint/FIR and even the charge sheet, it cannot be said that the averments in the FIR and the allegations in the complaint against the appellant constitute an offence under Section 405 & 420 Penal Code, 1860. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making promise being absent, no offence under Section 420 IPC can be said to have been made out. In the instant case, there is no material to indicate that Appellants had any mala fide intention against the Respondent which is clearly deductible from the MOU dated 20.08.2009 arrived between the parties.'
In the light of the elucidation by the Apex Court as afore-quoted and the facts obtaining in the case at hand, in the considered view of this Court, it would not meet the necessary ingredients of Section 415 of the IPC for it to become punishable under Section 420 of the IPC for permitting further proceedings to continue. Therefore, the offence under Section 420 of the IPC is loosely laid against these petitioners.
It is the categorical statement of the State who has investigated the matter for the last 42 months – three years and 6 months. No victim has come forward to complain or give evidence against these petitioners. The defence is that, the petitioners have managed. It is highly improbable that the petitioners can manage any persons, if they are aggrieved. Therefore, if further proceedings are permitted to continue against these petitioners, it would become an abuse of the process of the law.
It is apposite to refer to the judgment of the Apex Court in the case of STATE OF HARYANA V. BHAJAN LAL [1990 (11) TMI 386 - SUPREME COURT] - The Apex Court holds that the Court exercising jurisdiction under Section 482 of the Cr.P.C., can quash the FIR on certain circumstances. Three of the circumstances are undoubtedly present in the case at hand. Therefore, to prevent the proceedings becoming miscarriage of justice, it is deemed appropriate to obliterate the crime. It is made clear that the observations made in the course of the order is for only consideration of the petition under Section 482 of the Cr.P.C. and it would not influence or bind any pending proceedings.
The criminal petition is allowed.
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2024 (11) TMI 583
Seeking withdrawal of petition - input tax credit on the purchases made from Bharat Petroleum has been wrongly blocked - HELD THAT:- The writ petition is dismissed as withdrawn, as prayed, with liberty to take recourse to an appropriate statutory remedy, albeit, as per law.
Liberty is also given to the petitioner to move an application for decision concerning the ITC which stands presently blocked. If such an application is moved, the concerned authority, in the first instance shall render a decision on the same.
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2024 (11) TMI 582
Validity of a SCN which purports to initiate proceedings for cancellation of its registration under the Goods and Services Tax, Act 2017 - no reasons on the basis of which the purported action is proposed to be initiated - violation of principles of natural justice - HELD THAT:- Since the notice is clearly bereft of any reasons on the basis of which the purported action is proposed to be initiated, the same cannot be sustained.
The impugned Show Cause Notice dated 20 September 2024 set aside - petition allowed.
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2024 (11) TMI 581
Blocking of the Electronic Credit Ledger (ECL) under Rule 86A of the Central Goods and Services Tax Rules, 2017 - pre-decisional hearing was not provided to the petitioner nor does the impugned order contain any reason to believe as to why it was necessary to block the Electronic credit ledger - violation of principles of natural justice - HELD THAT:- In K-9-Enterprises’s case [2024 (10) TMI 491 - KARNATAKA HIGH COURT], the issue was answered in favour of the petitioner-assessee, where it was held that 'in the absence of valid nor sufficient material which constituted ‘reasons to believe’ which was available with respondents, the mandatory requirements/pre-requisites/ingredients/parameters contained in Rule 86A had not been fulfilled/satisfied by the respondents-revenue who were clearly not entitled to place reliance upon borrowed satisfaction of another officer and pass the impugned orders illegally and arbitrarily blocking the ECL of the appellant by invoking Rule 86A which is not only contrary to law but also the material on record and consequently, the impugned orders deserve to be quashed.'
Thus, in the instant case, since no pre-decisional hearing was provided/granted by the respondents before passing the impugned order, coupled with the fact that the impugned order invoking Section 86A of the CGST Rules by blocking of the Electronic credit ledger of the petitioner does not contain independent or cogent reasons to believe except by placing reliance upon the reports of Enforcement authority which is impermissible in law, since the same is on borrowed satisfaction as held by the Hon’ble Division Bench of this Court, the impugned order deserves to be quashed.
It is also pertinent to note that in the impugned orders except stating that “a registered supplier who has been found to be non-existent or not to be conducting business from his place of registration", no other reasons are forthcoming in the impugned orders. On this ground also, the impugned orders dated 28.02.2024 and 16.02.2024 deserves to be quashed.
The impugned orders are set aside - petition allowed.
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2024 (11) TMI 580
Challenge to SCN issued by respondent no. 4 - parallel investigations by the State Excise and Central Excise Authorities - HELD THAT:- The matter requires further examination.
Issue notice. Mr. Sushant Kaprate, learned Additional Advocate General, accepts notice on behalf of respondents no. 1 to 3, while Mr. Vijay Arora, learned counsel, accepts notice on behalf of respondent no. 4.
List the matter on 14th October 2024.
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2024 (11) TMI 579
Legality of Sub-section (4) to Section 16 of the Central Goods and Service Tax Act, 2017 and the Karnataka Goods and Service Tax Act, 2017 - input tax credit in the books of account of the Petitioner is the date of availment of ITC - HELD THAT:- A perusal of the material on record will indicate that the issue in controversy involved in the present petition is directly and squarely covered by the judgment of this Court in the case of M/s. Sadhana Enviro Engineering Services vs. Joint Commissioner of Central Tax & Others [2024 (9) TMI 1648 - KARNATAKA HIGH COURT], where it was held that 'The respondents are directed to unblock and release the credit balance of the petitioner in their ITC Ledger / Account, if not already released, immediately / forthwith upon receipt of a copy of this order without any delay.'
The present petition also deserves to be allowed and disposed of.
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2024 (11) TMI 578
Seeking review of the Judgment and Order - error apparent on the face of the record - HELD THAT:- Review jurisdiction is to be exercised in a very limited manner where there an is error apparent on the face of the record. This Court has considered each and every document and the submissions while rendering the Judgment HARBOUR HOTELS [2023 (11) TMI 1305 - KERALA HIGH COURT]. Furthermore, these documents were not part of the pleadings. Review does not mean rehearing or appeal.
There are no error apparent on the face of the record which warrants this Court to reconsider this Judgment under review - There is no substance in this review petition and the same is hereby dismissed.
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2024 (11) TMI 577
Challenge to SCN in FORM GST MOV-07 - petitioner is ready to pay the applicable tax and penalty under section 129(1)(a) of the CGST Act, 2017 - HELD THAT:- In view of the fact that the petitioner has come forward to pay the applicable tax and penalty under section 129(1)(a) of the CGST Act, 2017, the third respondent is hereby directed to calculate the applicable tax and penalty under Section 129(1)(a) of the CGST Act, 2017 within three days from the date of receipt of the certified copy of this order.
Upon receipt of the applicable tax and penalty, the Assistant Commissioner of Commercial Taxes (Enforcement), Bidar is directed to release the seized goods and the vehicle bearing Registration No. KA-07-8529 - It is made clear that payment of applicable tax and penalty under section 129(1)(a) of the CGST Act, 2017 is subject to the outcome of the final order that would be passed by the Assistant Commissioner of Commercial Taxes (Enforcement), Bidar on impugned notice.
Petition disposed off.
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2024 (11) TMI 576
Imposition of GST under the reverse charge mechanism on the seigniorage paid by the petitioner to the Government - HELD THAT:- Reliance placed in the recent judgment of the Division Bench of this Court in a batch of writ petitions, TVL. A. VENKATACHALAM VERSUS THE ASSISTANT COMMISSIONER (ST) [2024 (2) TMI 488 - MADRAS HIGH COURT] where it was held that 'It is made clear that there shall be no recovery of GST on royalty until the Nine Judge Constitution Bench takes a decision.'
In view of the above judgment, this petition is liable to be disposed of on the same terms.
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2024 (11) TMI 575
Maintainability of petition - availability of alternative remedy - petitioner accepts the legal position that the petitioner has an alternative remedy of appeal under Section 107 of the OGST Act, 2017 - HELD THAT:- As the petitioner has an effective statutory remedy of appeal against the impugned order, it is not required to entertain this writ petition filed under Article 226 of the Constitution of India.
This writ petition stands disposed of with a liberty to the petitioner to prefer an appeal, if so advised, against the impugned order in accordance with law.
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2024 (11) TMI 523
Valuation - Section 67 - Associated enterprises - lease rent equalisation shown in Balance sheet - it was held by CESTAT that 'The amount shown in the balance sheet is not an 'income' for the purposes of computing Tax under the Income Tax Act. In the result it is also not a 'payment' actually received or receivable, and therefore neither 'consideration' nor the 'gross amount charged' in terms of clauses (a) and (c) respectfully of the explanation to Section 67 of the Act. Hence the appellant is not liable to pay Service Tax on the amount of lease rent equalisation shown in the balance sheet.'
HELD THAT:- It is not required to interfere with the impugned order passed by the Customs, Excise & Service Tax Appellate Tribunal.
The Civil Appeal is dismissed.
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