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GST - Case Laws
Showing 121 to 140 of 11692 Records
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2024 (5) TMI 1134 - PATNA HIGH COURT
Condonation of delay in filing appeal - appeal rejected for being beyond the statutory time limit - extension of time for filing appeals u/s 73 and 74 of the BGST Act - HELD THAT:- An appeal against an order under Section 73 or 74 has to be filed on or before 31.01.2024, and any appeal filed which is pending before the authority could also be considered as properly filed, even if there is delay in such filing.
In the present case, the appeal was filed and was dismissed by the first Appellate Authority. In such circumstances, it is only proper that the appeal be restored to the files of the Authority subject to the conditions under paragraph no. 3 being satisfied - Hence the petitioner would be entitled to satisfy paragraph no. 3 of the aforesaid Notification by paying up the deficient amounts as would be required to maintain the appeal under the notification.
The impugned order dated 03.05.2023 at Annexure-4 is set aside on condition of the assessee satisfying the aforesaid conditions before the time stipulated in Notification; i.e. 31.01.2024, in which event, the appeal would be taken up and considered on merits - petition disposed off.
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2024 (5) TMI 1126 - DELHI HIGH COURT
Cancellation of GST registration of petitioner - excess claim of Input Tax Credit or not - demand u/s 73 with penalty - order passed solely on the ground that there was no response received from the petitioner - HELD THAT:- Perusal of the order shows that the same has been passed solely on the ground that there was no response received from the petitioner. Petitioner has annexed the copies of certain account statements as well as invoices to contend that the petitioner had not availed Input Tax Credit, contrary to its entitlement.
Keeping in view the peculiar facts and circumstances of the case, one opportunity should be granted to the petitioner to file a response to the Show Cause Notice. Thereafter, the Show Cause Notice shall be re-adjudicated in accordance with law.
The impugned order dated 21.12.2023 is set aside. The Show Cause Notice is restored on the file of proper officer - Petition disposed off.
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2024 (5) TMI 1122 - RAJASTHAN HIGH COURT
Detention of goods - e-way bill had expired 44 minutes ago - evasion of tax or not - HELD THAT:- This Court considers it appropriate to reproduce the relevant portion of the judgment rendered by a Division Bench of the Hon’ble Madhya Pradesh High Court in the case of M/s. Daya Shaker Singh vs. State of Madhya Pradesh [2022 (8) TMI 814 - MADHYA PRADESH HIGH COURT] where it was held that 'In the instant case, the delay of almost 4:30 hours before which E-way Bill stood expired appears to be bona fide and without establishing fraudulent intent and negligence on the part of petitioner, the impugned notice/order could not have been passed.'
This Court further observes that the only fault lying with the petitioner was that the e-way bill with regard to the goods that were being transported had expired 44 minutes before the inspection took place due to the delay caused resulting from the tyre puncture for no fault of either of the petitioner or the driver of the truck, thus it cannot be said that there existed an intention to evade tax or any fraudulent intention on part of the petitioner; the only issue lied with expiry of the e-way bill and not renewing the same. It is not in dispute that all taxes under the regime of CGST/ SGST were paid for.
This Court further observes that the impugned notice was issued and the impugned order dated 01.03.2021 was passed under Section 129 (3) of the CGST Act, 2017, the same being completely unjustified in the eye of law as the issue was not one of there not being an e-way bill, but one of the existing e-way bill having expired during transit, thus imposition of such a heavy penalty for a minor offence is unacceptable and the penalty imposed should have been as per Section 122 of the CGST Act, 2017 of Rs. 10,000/-, as there is no apparent case of tax evasion.
This Court is of the opinion that the impugned notice and the impugned orders dated 01.03.2021 and 24.05.2021 deserve to be quashed and set aside and the same are hereby quashed and set aside - Petition allowed in part.
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2024 (5) TMI 1091 - MADHYA PRADESH HIGH COURT
Direction to release/ provide the original copy of documents seized by the Respondent from the premises of the Petitioner during various searches conducted - cross-examination of witnesses whose evidence has been relied upon in the SCN - opportunity to provide personal hearing to the Petitioner - violation of principles of natural justice - HELD THAT:- It is apparent from bare perusal of Section 67 (3) of the CGST Act and Rule 27 of the Central Excise Rules 2017 that it is the duty of Respondent to release the non-relied upon documents within a period of 30 (thirty) days from the issuance of the show cause notice - Provided that the Principal Commissioner of Central Excise or Commissioner of Central Excise, as the case may be, may order for the retention of such books of accounts or documents, for reasons to be recorded in writing and the Central Excise Officer shall intimate to the assessee or such person about such retention.”
This court is of the considered opinion that, besides the certified copies of relied documents which goes without saying are necessary for filing reply and preparing defence, the petitioner is entitled to receive original copies of non-relied documents so as to enable him to prepare his defence/reply as fair hearing requires that petitioner is given due opportunity to raise all defences which are available to him under the law on the basis of the documents, facts, circumstances and the legal provisions as the petitioner deems appropriate.
Right of petitioner to conduct cross-examination of witnesses whose evidence has been relied upon in the SCNs during adjudication proceedings - HELD THAT:- This court is of the considered opinion that right of fair hearing and personal hearing requires that the petitioner be given right to cross examine witnesses whose evidence has been relied upon in the show cause notices dated 08.06.2022 and 03.08.2022 and it is expected from the adjudicating authority that the said right to cross-examine would be afforded to the petitioner at appropriate stage of proceedings, as principles of natural justice are required to be adhered to while conducting adjudication proceedings.
It is deemed appropriate to direct the Respondents to handover all the original documents to petitioner which have been seized by them and not relied on by Respondents while issuing Show Cause notices dated 08.06.2022 and 03.08.2022, so that the petitioner is enabled in submitting his reply - petition allowed.
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2024 (5) TMI 1090 - CALCUTTA HIGH COURT
Maintainability of petition - appealable order - Cancellation of registration of the petitioner - non-filing of return for consecutive six months - HELD THAT:- In the instant case, the petitioner has not preferred any appeal. This allows the revenue to raise the point of alternative remedy for which the writ petition is not maintainable.
It is also correct that during March, 2020 and 28th February, 2022, the situation in the country owing to pandemic was not normal. The business entities have suffered commercial loss during this period for lack of business, at the same time filing of the returns have become irregular owing to prevailing condition at the relevant point of time. The petitioner’s default took place during the pandemic and, as such, a sympathetic consideration is required to be given keeping in mind that by retaining the order of cancellation, the petitioner will be deprived of carrying on his business which will ultimately result into the loss to the Government exchequer.
The justice will be sub-served, if, it is directed that the order impugned dated 25th January, 2022 be set aside particularly when the default in filing the return for six consecutive months being the only ground for cancellation. The order dated 25th January, 2022 cancelling the petitioner’s registration is set aside and the registration is restored back to its original position. The department is directed to permit the petitioner to file the return for the period from December, 2020 till date. If the petitioner fails to file the return within a period of three weeks from date, the restoration of the registration will be again automatically cancelled.
The petition is disposed off.
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2024 (5) TMI 1089 - ANDHRA PRADESH HIGH COURT
Maintainability of petition - availability of statutory alternative remedy - Rejection of refund of tax - relevant date - rejection on the ground that the taxpayer failed to meet the deadline for submitting the application on 29.02.2024 - whether the petitioner’s application was within the period of two years from the relevant date or not? - HELD THAT:- The petitioner has got the statutory alternative remedy of appeal against the order of rejection of claim for refund. The argument as advanced, is not such an argument, which cannot be taken before the appellate authority. The ‘relevant date’ requires determination in view of Section 54 (14), explanation 2 (a) (i) of the Act on consideration of the documents, as submitted, filed by the petitioner, to arrive a conclusion, on what date the ship in which goods were loaded left India.
In the exercise of the writ jurisdiction, this Court considers it not appropriate, at this stage to determine such question which is a disputed question of fact and requires for its determination the evidence. The said exercise, can be done effectively by the appellate authority. Consequently, we are not inclined to entertain the writ petition.
This Writ Petition is dismissed, on the ground of availability of statutory alternative remedy.
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2024 (5) TMI 1088 - ANDHRA PRADESH HIGH COURT
Maintainability of petition - availability of alternative remedy - ITC of the GST on the job work manufacturing service - applicability of circular dated 17.07.2023 - HELD THAT:- The aspect of applicability of Circular dated 17.07.2023 to the petitioner’s case, can be looked into by the Appellate Authority if such a plea is raised before the Appellate Authority. It is not such a ground which cannot be taken in appeal.
Any plea of the order being without jurisdiction, or in violation of the principles of natural justice or in violation of the Fundamental Rights has not been raised before us during arguments. There is also no challenge to the vires of any statutory provisions - Any judgment on the point has not been placed before us to take a view contrary to the prima facie view taken in the order dated 02.04.2024 on entertainability of the writ petition in the presence of statutory alternative remedy of appeal.
The writ petition is dismissed only on the ground of availability of the statutory alternative remedy.
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2024 (5) TMI 1043 - SC ORDER
Search and seizure - Gold Flake Super Star cigarettes - illicit trade/supply - jurisdiction of CGST Delhi North Commissionerate - reasonsto believe - Whether or not, requisite statutory ingredients were present to enable the concerned respondents to exercise the power vested upon them under Section 67(2) of the CGST Act? - it was held by High Court that 'the search and seizure conducted by CGST Delhi North Commissionerate are declared unlawful' - HELD THAT:- It is not required to interfere with the impugned judgment and order passed by the High Court. However, question of law is kept open. The observations made in the writ petition will not have a bearing on the adjudication proceedings.
The Special Leave Petition is dismissed.
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2024 (5) TMI 1042 - DELHI HIGH COURT
Suspension of GST registration of the petitioner - it is submitted that new address had already been uploaded on the GST portal, which was not noticed by the Anti Evasion Cell - HELD THAT:-The petitioner is directed to appear before the Anti Evasion Cell on 28.05.2024 at 12 Noon and shall also appear before the Proper Officer on 29.05.2024 at 12 Noon.
Thereafter, the said authorities shall pass appropriate orders on the request of the petitioner for recalling the suspension within a maximum period of two weeks.
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2024 (5) TMI 1041 - ALLAHABAD HIGH COURT
Time limitation of appeal - Whether the appeal filed by the Petitioner under Section 107 of the UPGST Act was within the statutory time limit? - HELD THAT:- Limitation provisions in the UPGST Act set clear timelines for various actions, such as filing returns, making payments, or initiating appeal. By imposing time limits on actions, limitation provisions discourage delay and procrastination. Taxpayers are incentivized to fulfil their obligations promptly, which contributes to the smooth functioning of the tax administration system. Limitation provisions ensure equal treatment of taxpayers by establishing uniform deadlines for compliance. This prevents unfair advantages for non-compliant taxpayers and promotes a level playing field in the taxation process.
It is evident that that the petitioner received the order in original on July 12, 2022 and filed the appeal on November 10, 2022. In light of the same, three months period would have begun on July 13, 2022 and expired on October 12, 2022 and the extended period would have expired on November 12, 2022. In light of the same, it appears that the calculation done by the authorities below is incorrect which warrants the exercise of writ jurisdiction.
The presence of errors apparent on record provides a valid ground for the exercise of writ jurisdiction by the courts. When administrative authorities commit mistakes that are evident from the records of the case, aggrieved parties have the right to seek judicial intervention to rectify such errors and ensure justice.
This Court directs the first appellate authority to allow the delay in filing the appeal and thereafter hear the appeal on merits and decide the same expeditiously, preferably within a period of two months from the date of production of a certified copy of this order before it.
Application disposed off.
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2024 (5) TMI 1040 - DELHI HIGH COURT
Appeal dismissed solely on the ground that the same is barred by limitation - Cancellation of GST registration of the Petitioner with retrospective effect - no reasons for cancellation given - violation of principles of natural justice - HELD THAT:- The impugned order dated 27.06.2019 passed on the Show Cause Notice dated 02.03.2019 does not give any reasons for cancellation. It merely states that the registration is liable to be cancelled for the following reason “Whereas no reply to notice to show cause has been submitted”. However, the said order in itself is contradictory - There is no material on record to show as to why the registration is sought to be cancelled retrospectively.
The Show Cause Notice and the impugned order are bereft of any details. Neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation. Accordingly, the same cannot be sustained.
In terms of Section 29(2) of the Act, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so - Merely, because a taxpayer has not filed the returns for some period does not mean that the taxpayer’s registration is required to be cancelled with retrospective date also covering the period when the returns were filed and the taxpayer was compliant.
In view of the fact that the Petitioner does not wish to carry on business or continue with the registration, impugned order dated 27.06.2019 is modified to the limited extent that registration shall now be treated as cancelled with effect from 27.06.2019 i.e., the date when the order cancelling the GST registration of the Petitioner was issued. Petitioner shall make the necessary compliances as required by Section 29 of the Central Goods and Services Tax Act, 2017.
Petition disposed off.
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2024 (5) TMI 1039 - DELHI HIGH COURT
Violation of principles of natural justice - non-application of mind - impugned order does not take into consideration the reply submitted by the Petitioner and is a cryptic order - order u/s 73 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The impugned order after recording the narration records that the reply uploaded by the taxpayer is devoid of merits without any justification or proper reconciliation.
The reply filed by the petitioner gave full particulars with regard to the tax paid on outward supplies under declared on reconciliation of data in GSTR-09 through DRC-03 as pointed out by the department by the impugned order. The demand towards the taxes on the output supplies which were alleged to be under declared have been dropped.
With regard to the other issues, the observation in the impugned order dated 24.04.2024 is not sustainable for the reasons that the reply dated 20.02.2024 filed by the Petitioner is a detailed reply with supporting documents.
The impugned order dated 24.04.2024 cannot be sustained and is set aside in respect of the issues that have been held against the Petitioner - Petition disposed off.
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2024 (5) TMI 1038 - ALLAHABAD HIGH COURT
Violation of principles of natural justice - Non-speaking order by the adjudicating authority - replies have been ignored - application of rate of tax on the commodities dealt with by the petitioner - HELD THAT:- The impugned order is wholly non-speaking both with respect to rejection of the explanation furnished by the petitioner and also with respect to application of rate of tax on the commodities dealt with by the petitioner.
No discussion exists in the impugned order to consider any of the materials relied upon by the petitioner. Such approach adopted by the adjudicating authority is unacceptable. Once explanation was furnished to the show cause notice, irrespective of its worthiness in the eyes of the adjudicating authority, it remained obligated in law to deal with the same by affording adequate reasons. Merely describing a claim as unacceptable or false or rejected would not fulfill the requirements of a proper adjudication proceeding.
The reason to reach such conclusion is the essence of fairness of an adjudication proceeding. Unless such reasons are given in black and white, the adjudication order may remain laconic. Second, assuming for the sake of submission that the adjudicating authority had chosen to reject the explanation submitted by the petitioner and such rejection may have been valid, another fatal error has been committed in the adjudication proceedings, insofar as no reason had been assigned by the adjudicating authority in taxing the turn over on best judgement basis - the adjudicating authority has not assigned any reason to submit such turnover at the highest rate of tax i.e. @ 28%. In doing that he has acted unmindful of the fact that it was the further claim of the petitioner arising from the same books of accounts and that part of turnover was exempt.
In the present case, the petitioner was not at fault for the delay in the proceedings. The notice was issued late. The petitioner responded in writing and submitted his application. That has been rejected without assigning any reasons. The adjudication order is clearly laconic - even if the petitioner was relegated to the forum of the appeal, irrespective of the fate in that appeal, the petitioner may never have any opportunity before the adjudicating authority. Therefore, that layer of the proceeding would remain practically ex parte against the petitioner to the extent his replies would remain from being considered by the adjudicating authority.
The matter is remitted to the adjudicating authority to pass a fresh reasoned order as expeditiously as possible preferably within a period of three months after hearing the petitioner - The writ petition is allowed by way of remand.
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2024 (5) TMI 1037 - DELHI HIGH COURT
Violation of principles of natural justice - ex-parte demand created u/s 73 of CGST Act, 2017 - Lack of response to Show Cause Notice - excess claim of ITC and scrutiny of ITC availed - HELD THAT:- The only reason for passing the impugned order is that petitioner had not filed any reply to the Show Cause Notice. In view of the stand of the Respondents that there is no Annexure-B, we are of the view that one opportunity needs to be granted to the Petitioner to respond to the Show Cause Notice.
The impugned order dated 12.12.2023 is set aside. The Show Cause Notice is remitted to the Proper Officer for re-adjudication - Petition disposed off by way of remand.
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2024 (5) TMI 1036 - ALLAHABAD HIGH COURT
Levy of penalty u/s 129 of GST Act - wrong mention of number of Vehicle, through which the goods were in transit, in the E-ay bill - HELD THAT:- It is not in dispute that goods were being transported by the dealer through stock transfer from its unit at Agra to M/s Rawat sales in Mathura. From perusal of the e-way bill which has been brought on record, it is clear that the vehicle number has been mentioned as UP 80 CT 7024.
As there is no dispute to the fact that it is a case of sale of goods and there is no intention on the part of dealer to evade any tax, the minor discrepancy as to the registration of vehicle in State in the e-way bill would not attract proceedings for penalty under Section 129 and the order passed by the detaining authority as well as first appellate authority cannot be sustained. Moreover, the Department has not placed before the Court any other material so as to bring on record that there was any intention on the part of the dealer to evade tax except the wrong mention of part of registration number of the vehicle in the e-way bill.
The orders are unsustainable in the eyes of law and both the orders are hereby set aside - Petition allowed.
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2024 (5) TMI 1035 - BOMBAY HIGH COURT
Provisional attachment under Section 83 of the MGST Act - Mandate of forming an opinion before passing the order of attachment - Petitioner has failed to discharge the liability without any justification - HELD THAT:- The Hon’ble Supreme Court in M/S RADHA KRISHAN INDUSTRIES VERSUS STATE OF HIMACHAL PRADESH & ORS. [2021 (4) TMI 837 - SUPREME COURT] has opined that the power to order a provisional attachment [under Section 83] of the property of the taxable person, including a bank account, is draconian in nature and the conditions which are prescribed by the statute for a valid exercise of the power must be strictly followed. The Hon’ble Supreme Court has further opined that the exercise of the power for ordering a provisional attachment must be preceded by the formation of an opinion by the Commissioner that “it is necessary so to do” for the purpose of protecting the interest of the Government revenue.
The expression “necessary so to do for protecting the government revenue” implicates that the interests of the government revenue cannot be protected without ordering a provisional attachment. Once this is the law laid down by the Hon’ble Supreme Court, and which we find applies with full force to the facts of the present case, we have no hesitation in quashing the impugned attachments and the order passed under Section 83.
The petition is allowed.
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2024 (5) TMI 1034 - MADRAS HIGH COURT
Challenge to tax demand - lack of reasonable opportunity for contesting the order - Violation of principles of natural justice - HELD THAT:- The petitioner has placed on record the bank statement. Such statement discloses that a sum of Rs. 3,09,574/- was appropriated from the petitioner's bank account. This amount appears to correspond to the entire demand towards tax, interest and penalty. Consequently, at this juncture, revenue interest is fully secured. Since the petitioner asserts that he is in a position to explain the discrepancy between his GSTR 3B returns and the auto populated GSTR 2B, it is just and appropriate that an opportunity be provided to the petitioner.
The impugned order dated 01.09.2023 is set aside and the matter is remanded for reconsideration - petition disposed off by way of remand.
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2024 (5) TMI 1033 - PATNA HIGH COURT
Validity of demand notice and assessment order - failure to file appeal within statutory period - availability of alternative remedy - HELD THAT:- The petitioner had a statutory remedy by way of an appeal under Section 107 (4) of the Bihar Goods and Services Tax Act. The aforesaid provision requires an appeal to be filed within a period of three months and upon delay, to be filed within a further period of one month; which could also be considered if there is satisfactory explanation for the delay occasioned. The petitioner has not availed the remedy and at this point of time, cannot seek to avail the appellate remedy for reason of the limitation period having expired long prior.
The Hon’ble Supreme Court in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2022 (1) TMI 385 - SC ORDER], due to the pandemic situation, limitation was saved between 15.03.2020 till 28.02.2022. It was also directed that an appeal could be filed within ninety days from 01.03.2022. Hence, an appeal could have been filed on or before 30.05.2022, which provision was not availed by the petitioner herein. The Hon’ble Supreme Court also declared that if a longer period than 90 days is provided in a Statute, then that longer period will apply. Hence, a delayed appeal could also have been filed on or before 30.06.2022.
The present writ petition is filed on the demand notice being issued, which is not permissible when there was an alternate efficacious remedy, which was not availed by the petitioner for reason of his own default. There are specific contours for invocation of the extra ordinary remedy under Article 226 of the Constitution of India, as has been delineated in the STATE OF HP. AND OTHERS VERSUS GUJARAT AMBUJA CEMENT LTD. AND ANOTHER (AND OTHER APPEALS) [2005 (7) TMI 353 - SUPREME COURT].
No ground exists and in any event the attempt of the petitioner to bypass the appellate remedy, which he chose to not avail of, cannot be countenance - petition dismissed.
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2024 (5) TMI 1032 - MADRAS HIGH COURT
Validity of summons issued u/s 70 of the Central Goods and Services Tax Act, 2017 - abuse and threat in course of a search of the premises - HELD THAT:- It is only in exceptional circumstances that interference with a summons would be justified an exercise of discretionary jurisdiction.
In the case at hand, the petitioner urges such interference largely on the ground that a police complaint was lodged earlier against the fifth respondent. On instructions, learned standing counsel for respondents 1 to 4 submits that the relevant file was transferred from the fifth respondent and, therefore, the petitioner would be submitting a reply to and appearing before a different officer. In these circumstances, the apprehension of the petitioner is misplaced.
Petition disposed off.
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2024 (5) TMI 1031 - RAJASTHAN HIGH COURT
Challenge to SCN/assessment orders issued by the respondent - GST Department - demand of GST on royalty paid to the respondent - Mining Department towards mining lease - HELD THAT:- As per the statement of Mr. Sunil Bhandari and Mr. Rajvendra Saraswat, learned counsel for respondents, the present writ petition along with the stay petition is also dismissed.
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