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Showing 121 to 140 of 13886 Records

• 2024 (11) TMI 522
  

  Validity of the impugned Press Release dated 15.07.2020, by which the Ministry of Finance, Union of India, purporting to exercise its executive powers, virtually issued a fiat to the adjudicatory judicial and quasi-judicial authority to classify all alcohol-based hand sanitisers as “disinfectants” attracting a GST rate of 18% - HELD THAT:- The impugned Press Release, does not indicate that the same is relatable to either Article 73 or Article 77 of the Constitution. Though that, by itself, may not be a ground to strike down the impugned Press Release, still, in the absence of any such indication or compliance with the provisions of Article 77 of the Constitution, we cannot simply accept that the impugned Press Release is indeed an instance of the exercise of executive power by the Union. In the absence of any compliance with the requirements of Article 77, the burden was on the Respondents to establish this aspect. The Respondents have failed to discharge this burden.

  However, even though it is assumed that the impugned Press Release is an instance of the exercise of executive power by the Union still, the question is whether, in the purported exercise of such executive power, the Union is competent to direct judicial and quasi-judicial authorities to decide the issue of classification of products in a particular manner - Though there may not be a very distinct line separating legislative and executive functions, still the line separating the judicial functions from the executive and legislative functions is fairly clear. The executive cannot transgress on the functions within the exclusive province of the judicial or even quasi-judicial authorities.

  In the STATE OF JHARKHAND AND ANR VERSUS GOVIND SINGH [2004 (12) TMI 667 - SUPREME COURT] the Hon’ble Supreme Court has explained that after enacting a law or Act, the Legislature becomes functus officio so far as that particular Act is concerned, and it cannot itself interpret it. No doubt, the Legislature retains the power to amend or repeal the law so made and can also declare its meaning, but that can be done only by creating another law or statute after undertaking the whole lawmaking process.

  The issue of whether a product falls within a particular class after the law is already enacted and the classification is already made falls within the province of the judicial and quasi-judicial authorities created under the Act. Such powers must be exercised by the judicial and quasi-judicial authorities independently and without any goading from any party, including the executive. Any press release or executive instruction meant to influence or, worse still, require the judicial or quasi-judicial authorities under the Act to exercise their judicial or quasi-judicial functions in a particular manner would interfere with their judicial or quasi-judicial functions. This cannot be allowed. The executive powers of the Union do not extend to this.

  The impugned Press Release virtually expresses a firm view on the classification of alcohol-based hand sanitisers as “disinfectants” and not “medicaments”. The impugned Press Release urges the authority to levy tax at 18% based on the premise that alcohol-based hand sanitisers are “disinfectants” and not “medicaments”. Though we do not propose to quash the impugned show cause notice cum demand notice dated 17.04.2023 because such a show cause notice could have as well been issued by the Respondents in the absence of the impugned Press Release or independent of the impugned Press Release.

  The Petitioner has made out a case for quashing the impugned Press Release so that the judicial and quasi-judicial authorities under the Act can decide on the issue of classification and, consequently, the rate of tax independently without even remotely being influenced by the impugned Press Release - this petition partly allowed by setting aside the impugned Press Release dated 15.07.2020.

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• 2024 (11) TMI 521
  

  Challenge to interim order directing the release of goods upon depositing Rs. 4 lakhs - HELD THAT:- Considering the order passed by the learned Single Judge and also the fact that the liability of a sum of Rs. 22,35,932/- has been determined on the respondent No. 1 and also according to the learned counsel appearing for the respondent No. 1 that, the total goods value is of Rs. 12,83,354/-, it is deemed appropriate to dispose of the appeal by upholding the order passed by the learned Single Judge and additionally directing the respondent No. 1 herein to furnish a Bank Guarantee (from a Nationalised Bank) for an amount of Rs. 8,83,354/- in favour of the Joint Commissioner of Commercial Taxes (Vigilance) and keep the same valid during the pendency of the writ petition and also furnishing a personal bond, in terms of the format to be furnished by the appellants, of Mr. Chikka Aanjibabu, Proprietor of respondent No. 1, within two days to enable the appellants release the goods and conveyance in terms of the direction given by the learned Single Judge. The same shall be subject to the outcome of the writ petition.

  Appeal disposed off.

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• 2024 (11) TMI 520
  

  Challenge to assessment order - Disallowance of Input Tax Credit - denial only on the ground that the claims have been lodged beyond the period prescribed under Section 16(4) of the GST Acts - HELD THAT:- The impugned order passed by the respondent dated 27.07.2022 is set aside. In respect of other issues, the impugned order shall remain undisturbed. The learned assessing adjudicating authority/respondent would re-do the assessment by taking into account the amendment. The petitioner may submit their objection by way of reply, within a period of three weeks from the date of receipt of a copy of this order along with the amendment and other details.

  Petition disposed off.

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• 2024 (11) TMI 519
  

  Cancellation of registration of GST - violation of Section 29(2)(a) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Admittedly, respondent no. 2 is the proper person as envisaged under the said section and he has the necessary jurisdiction to make inquiry regarding the cancellation or suspension of registration of GST and he is also authorised to pass necessary orders. It is possible in the course of his work, a notice might have been issued under erroneous provision of law. Petitioner no. 1 is having the liberty to reply to the said notice. Petitioner no. 1 is also having the liberty to take up such contention including the jurisdictional aspect in its reply before respondent no. 2. Petitioner no. 1 can also plead any amendments which are required for the existing trade name. If petitioner no. 1 is able to show that the authorised person is not proceeding under the correct provision of law, the authorised person also has the liberty to initiate appropriate proceedings in accordance with law.

  What has been issued in the instant case is only a show cause notice, requesting petitioner no. 1 for clarification and supporting documents regarding the allegations made against it. It is for the authorities concerned (respondent no. 2) to hear the party concerned and pass orders in accordance with law. It would be premature for this Court to interfere in the said proceedings at this particular stage itself.

  Petition disposed off.

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• 2024 (11) TMI 518
  

  Challenge to impugned Notices on account of the fact that the same purport to club / consolidate / group the demand for more than one financial year i.e., for the tax period from 2017 to 2023 - HELD THAT:- The said issue came up for consideration in the case of M/S. BANGALORE GOLF CLUB VERSUS ASSISTANT COMMISSIONER OF COMMERCIAL TAXES, KORAMANGALA, BENGALURU [2024 (10) TMI 116 - KARNATAKA HIGH COURT], in which, the co-ordinate Bench of this Court held 'This Court concludes that the show cause notices issued by the respondent are fundamentally flawed. The practice of issuing a single, consolidated show cause notice for multiple assessment years contravenes the provisions of the CGST Act and established legal precedents.'

  As is clear from the aforesaid judgment of this Court, the issue in controversy involved in the present petition is directly and squarely covered by the aforesaid judgment and consequently, the impugned Notices deserve to be quashed by reserving liberty in favour of the respondents to issue separate / independent Notices for each assessment year in terms of Section 73 of the CGST Act, 2017.

  The impugned Notices at Annexures-A and B both dated 05.08.2024 and all further proceedings pursuant thereto are hereby quashed - Petition allowed.

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• 2024 (11) TMI 517
  

  Condonation of delay in filing the revocation application - compliance with all the requirements of paying the taxes, interest, late fee, penalty etc. due - HELD THAT:- The delay in Petitioner’s invoking the proviso to Rule 23 of the Odisha Goods and Services Tax Rules (OGST Rules) is condoned and it is directed that subject to the petitioner depositing all the taxes, interest, late fee, penalty etc. due and complying with other formalities, the petitioner’s application for revocation will be considered in accordance with law.

  Petition disposed off.

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• 2024 (11) TMI 516
  

  Maintainability of petition - availability of statutory remedy of Appeal - non-constitution of the Appellate Tribunal - HELD THAT:- It is not at all in dispute that the order impugned in this writ petition, which has been passed by the Authority under the Central Goods and Services Tax Act, 2017 (CGST Act)/Odisha Goods and Services Tax Act, 2017 (OGST Act) is appealable under Section 112 of the CGST/OGST Act, 2017. It is also not in dispute that because of non-constitution of the Appellate Tribunal as required under section 109 of the said Acts, the petitioner is deprived of its statutory remedy of Appeal and the corresponding benefit of subsections-8 & 9 of section 112 of the said Acts.

  Taking into account the aforesaid Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 03.12.2019 issued by the Government of India and subsequent clarification issued by the Central Board of Indirect Taxes and Customs (GST Policy Wing) vide Circular No.132/2/2020 dated 18th March, 2020, it is deemed proper in the interest of justice to dispose of this writ petition subject to fulfilment of terms imposed, with the consent of the parties.

  Subject to verification of the fact of deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, or deposit of the same, if not already deposited, in addition to the amount deposited earlier under Sub Section (6) of Section 107 of the CGST/OGST Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the CGST/OGST Act, for the petitioner cannot be deprived of the benefit, due to non constitution of the Tribunal by the respondents themselves - petition disposed off.

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• 2024 (11) TMI 515
  

  Challenge to assessment orders relating to assessment year 2017-18 and 2018-19, respectively - unaware about the issuance of the intimation, show cause notice and assessment orders because the same were posted on the portal but not otherwise communicated to him - violation of principles of natural justice - HELD THAT:- In view of the statutory mandate, the respondent cannot be faulted for posting the notices and orders on the GST portal. At the same time, it should be recognized that a small business person has been adversely affected without being provided an opportunity to contest the respective tax demand. The assessee has remitted 10% of the disputed tax amount under each assessment order, and this is the pre-deposit requirement even for a statutory appeal.

  The orders impugned herein are quashed and the matters are remanded for re-consideration. The petitioner is permitted to file a reply to the show cause notice within a maximum period of three weeks from the date of receipt of a copy of this order - Petition disposed off.

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• 2024 (11) TMI 514
  

  Seeking review of the Judgment and Order - interest for delayed filing of the returns - error apparent on the face of record or not - 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.

  Review does not mean rehearing or appeal. There has to be finality to a litigation. This Court, based on the submissions, documents and evidences, has rendered the Judgment sought to be reviewed. Therefore, 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 513
  

  Provisional attachment of cash credit accounts of the petitioners - maximum period for attachment of cash credit accounts in terms of Section 83(2) of the CGST Act - HELD THAT:- In view of the admitted position that the order, subject matter of these proceedings has ceased to operate, the petition is disposed of reserving the right of the petitioner to impugn the fresh attachment order dated 13.12.2023 in accordance with law. The question of validity of repeated issuance of attachment orders under Section 83 of the CGST Act is left open.

  Petition disposed off.

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• 2024 (11) TMI 512
  

  Cancellation of registration due to the petitioner's delay in availing the appellate remedy provided under Section 107 of the Bihar Goods and Services Tax Act, 2017 - HELD THAT:- Section 107 of the Bihar Goods and Services Tax Act, 2017 (BGST Act) permits an appeal to be filed within three months and also apply for delay condonation with satisfactory reasons within a further period of one month. Here, the order impugned in the appeal was dated 14.03.2022. An appeal was to be filed on or before 13.06.2022 and if necessary with a delay condonation application within one month thereafter. The appeal is said to have been filed only on 03.12.2023, after about one year five months.

  There are no reason to invoke the extraordinary jurisdiction under Article 226, especially since it is not a measure to be employed where there are alternate remedies available and the assessee has not been diligent in availing such alternate remedies within the stipulated time. The law favours the diligent and not the indolent.

  The petitioner does not have any case that the show cause notice was not received by him, which is not produced herein. Further, the Government had come out with an Amnesty Scheme by Circular No. 3 of 2023, by which the registered dealers, whose registrations were cancelled were permitted to restore their registration on payment of all dues between 31.03.2023 to 31.08.2023. The petitioner did not avail of such remedy also.

  Petition dismissed.

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• 2024 (11) TMI 511
  

  Levy of GST under the reverse charge mechanism on the seigniorage paid by the petitioner to the Government - HELD THAT:- 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 510
  

  Provisional attachment of cash credit accounts of the petitioners - maximum period for attachment of cash credit accounts - HELD THAT:- In view of the admitted position that the order, subject matter of these proceedings has ceased to operate, the petition is disposed of reserving the right of the petitioner to impugn the fresh attachment order dated 13.12.2023 in accordance with law. The question of validity of repeated issuance of attachment orders under Section 83 of the CGST Act is left open.

  Petition disposed off.

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• 2024 (11) TMI 509
  

  Levy of GST under the reverse charge mechanism on the seigniorage paid by the petitioner to the Government - HELD THAT:- 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 508
  

  Seeking a direction for the disposal of rectification application - errors apparent on the face of the record - HELD THAT:- Since a rectification application was filed on 28.11.2023, it is just and necessary that the same be disposed of expeditiously.

  Therefore, without expressing any opinion on the merits of the rectification application, the petition is disposed of by directing the respondent to consider and dispose of rectification application dated 28.11.2023 in accordance with law with in a maximum period of six weeks from the date of receipt of a copy of this order. Before issuing orders, a reasonable opportunity shall be provided to the petitioner.

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• 2024 (11) TMI 463
  

  Seeking grant of bail - input tax credit - offence punishable under section 132 (1) (a), (f) (h) and (l) of the Central Goods and Service Tax Act, 2017 - HELD THAT:- From the complaint it is revealed that the allegation against the accused petitioner is of issuing fake invoices in the names of nine fake firms which led to evasion of GST by claims of input tax credit on the basis of such fakes invoices. In the complaint the respondent-Department has asserted that there are nine fake firms and in para 13.1 of the complaint they have given the details of the firms and the reasons for declaring them to be fake. It has been stated in the complaint that the addresses as mentioned in the GST registration of such firms is non-traceable and the proprietor of the firms could not be traced.

  After completion of investigation, the complaint was submitted against the accused petitioner on the basis of evidence collected so far during investigation. There is nothing on record that who claimed how much input tax credit on the basis of alleged fake invoices said to have been issued by the accused petitioner.

  The maximum punishment for the offences alleged against the accused petitioner is five years and the present accused petitioner has already suffered the custody of more than seven months as he was arrested on 16.03.2024 in the matter. The alleged offences as per the provisions of law are compoundable and triable by Magistrate. The trial of the case is likely to take considerable time.

  This Court without expressing any opinion on the merits and demerits of the case deems just and proper to release the accused-petitioner on bail - bail application of accused-petitioner namely; Manoj Kumar Jain S/o Late Shri Anil Kumar Jain is allowed and it is directed that the accused-petitioner shall be released on bail provided he furnishes a personal bond in the sum of Rs. 1,00,000/- together with two sureties in the sum of Rs. 50,000/- each to the satisfaction of the trial Court with the stipulation that he shall appear before the trial Court or any other Court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so.

  Bail application allowed.

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• 2024 (11) TMI 462
  

  Violation of principles of natural justice - non-application of mind to the material on record - non-speaking order - HELD THAT:- It is trite law that when any quasi-judicial order, which results in adverse consequences, must be made in compliance with the principles of natural justice. Reasoning is the heart-beat of every conclusion, absence of reason would vitiate the proceedings - In the case on hand, the impugned order does not reflect any reasoning. What is stated therein is that the reply is not acceptable and documents are not filed. The Assessing Officer has not dealt with the objections of the petitioner at all.

  This Court is of the view that the impugned order suffers from the vice of being a non-speaking order and thus violates principles of natural justice - the impugned order is set aside - Petition allowed.

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• 2024 (11) TMI 461
  

  Challenge to order passed under Section 73 of the Karnataka Goods and Services Tax Act, 2017 - discrepancy in the returns - non-payment of GST - attachment of bank account of petitioner - unaware of issuance of the notice - violation of principles of natural justice - HELD THAT:- It is the responsibility of the petitioner to keep a valid E-mail ID for communication purposes. If she changes the E-mail ID, she is required to update the same in the GST portal. Admittedly, the petitioner had not done it at the time of issuance of the said notice. No fault can be found with the authorities concerned in passing the impugned order pursuant to the issuance of the recovery notice.

  However, taking into consideration that the petitioner did not have an opportunity of participating in the proceedings, this Court is of the opinion that interest of justice would be met, if an opportunity is given to the petitioner to participate in the proceedings by setting aside the impugned order at Annexure-D and summary of the order at Annexure-E and consequently, the recovery notice at Annexure-F to the writ petition subject to imposing cost on the petitioner and remanding the matter back to respondent no.1.

  Petition allowed by way of remand.

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• 2024 (11) TMI 460
  

  Constitutional validity of provision of Rule 86A of the Central Goods and Service Tax Act / State Goods and Service Tax Rules, 2017 (CGST / SGST) - violation of of Article 14 and 19(1)(g) of the Constitution of India - blocking of Input Tax Credit (ITC) - no pre-decisional hearing was provided/granted by the respondents before passing the impugned order - violation of principles of natural justice - HELD THAT:- In view of the dictum of the Hon’ble Division Bench of this Court in K-9-Enterprises’s case [2024 (10) TMI 491 - KARNATAKA HIGH COURT], it is opined that 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 ITC 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 “a registered person/s who has been found non-existent or not to be conducting any business from any place for which registration has been obtained in contravention of the above provisions", no other reasons are forthcoming in the impugned order. On this ground also, the impugned order dated 09.07.2024 deserves to the quashed.

  Impugned order dated 09.07.2024 at Annexure-A is hereby quashed - The concerned respondents are directed to unblock the ITC of the petitioner immediately upon the receipt of copy of this order, so as to enable the petitioner to file returns forthwith - petition allowed.

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• 2024 (11) TMI 459
  

  Condonation of delay in filing the revocation application - compliance with all the requirements of paying the taxes, interest, late fee, penalty etc. due - HELD THAT:- In that view of the matter, the delay in Petitioner’s invoking the proviso to Rule 23 of the Odisha Goods and Services Tax Rules (OGST Rules) is condoned and it is directed that subject to the Petitioner depositing all the taxes, interest, late fee, penalty etc. due and complying with other formalities, the Petitioner’s application for revocation will be considered in accordance with law.

  The writ petition is disposed of.

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