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GST - Case Laws

Showing 161 to 180 of 13886 Records

• 2024 (11) TMI 438
  

  Maintainability of petition - availability of statutory remedy of appeal under CGST/OGST Act due to non-constitution of 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 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.

  Petition disposed off.

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• 2024 (11) TMI 437
  

  Maintainability of petition - availability of statutory remedy of appeal under CGST/OGST Act due to non-constitution of 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 his statutory remedy of Appeal and the corresponding benefit of subsections-8 & 9 of section 112 of the said Acts.

  Taking into account the 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.

  Petition disposed off.

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• 2024 (11) TMI 436
  

  Maintainability of petition - availability of statutory remedy of appeal under CGST/OGST Act due to non-constitution of 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 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.

  Petition disposed off.

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• 2024 (11) TMI 380
  

  Challenge to order whereby adjudication order was passed against the petitioner - no Appellate Forum was available due to pendency of a SPA No. 123 of 2022, Vinod Kumar Vs. State of Uttarakhand [2024 (10) TMI 1296 - UTTARAKHAND HIGH COURT] - It is contended by learned counsel for the State that the petitioner has already filed an appeal before the Appellate Authority against the order impugned in the present writ petition - HELD THAT:- The writ petition stands disposed-off. The Appellate Authority is directed to decide the appeal of the petitioner filed under Section 107 of the Act of 2017 against the impugned order dated 07.06.2022 (annexure no. 1), within a period of three months, from the date of production of certified copy of this order.

  Petition disposed off.

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• 2024 (11) TMI 379
  

  Seizure order under section 129(3) of the GST Act - non-generation of e-way bill leading to penalty and interest imposition - HELD THAT:- It is admitted between the parties that the goods in question were transported along with all relevant documents, except e-way bill. It is also not in dispute that the eway bill was produced before the seizure order could be passed. The said fact is evident from the pleading before the authorities below as well as in paragraph nos. 12 & 13 of the writ petition, which have not been denied in the counter affidavit filed on behalf of the State. The record further shows that no finding has been recorded with the regard to intention to evade legitimate amount of tax.

  This Court in M/s Falguni Steels [2024 (1) TMI 1150 - ALLAHABAD HIGH COURT] has taken the view that even if the e-way bill was not generated at the time of interception of goods, but the same was produced before passed the seizure order as well as in absence of any ground with regard to intention to evade payment of tax, the impugned order cannot be sustained.

  The impugned order dated 20.11.2020 passed by the respondent no. 5 as well as the impugned order dated 27.07.2021 passed by the respondent no. 4 under section 129(3) of the GST Act cannot be sustained in the eyes of law. The same are hereby quashed - Petition allowed.

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• 2024 (11) TMI 378
  

  Levy of GST on Royalty paid by a Mineral Concession Holder for any mining concession granted by the State - Constitutional validity of N/N. 11/2017-Central Tax (Rate) dated 28.06.2017, N/N. 1/2017-Central Tax (Rate) dated 28.06.2017 (Annexure P-2), Himachal Pradesh Govt. N/N. 11/2017 dated 30.06.2017, Himachal Pradesh Govt. N/N. 1/2017 dated 30.06.2017, N/N. 27/2018-Central Tax (Rate) dated 31.12.2018 and Himachal Pradesh Govt. N/N. 27/2018 dated 31.12.2018 - HELD THAT:- It is not in dispute that the judgment rendered in INDIA CEMENT LIMITED VERSUS STATE OF TAMIL NADU [1989 (10) TMI 53 - SUPREME COURT] has now been overruled by Nine-Judge Bench of the Hon’ble Supreme Court in MINERAL AREA DEVELOPMENT AUTHORITY & ANR. VERSUS M/S STEEL AUTHORITY OF INDIA & ANR ETC. [2024 (7) TMI 1390 - SUPREME COURT (LB)], wherein it has been held that royalty is not a tax. Therefore, the respondents are well within their rights to levy GST on the royalty paid by the mineral concession holder for any mining concession granted by the State.

  The orders impugned herein i.e. notice dated 16.02.2024 (Annexure P-11) and summon dated 15.03.2024 (Annexure P-15) are upheld and the instant petition is accordingly dismissed.

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• 2024 (11) TMI 377
  

  Levy of GST on Royalty paid by a Mineral Concession Holder for any mining concession granted by the State - Constitutional validity of N/N. 11/2017-Central Tax (Rate) dated 28.06.2017, N/N. 1/2017-Central Tax (Rate) dated 28.06.2017 (Annexure P-2), Himachal Pradesh Govt. N/N. 11/2017 dated 30.06.2017, Himachal Pradesh Govt. N/N. 1/2017 dated 30.06.2017, N/N. 27/2018-Central Tax (Rate) dated 31.12.2018 and Himachal Pradesh Govt. N/N. 27/2018 dated 31.12.2018 - HELD THAT:- It is not in dispute that the judgment rendered in INDIA CEMENT LIMITED VERSUS STATE OF TAMIL NADU [1989 (10) TMI 53 - SUPREME COURT] has now been overruled by Nine-Judge Bench of the Hon’ble Supreme Court in MINERAL AREA DEVELOPMENT AUTHORITY & ANR. VERSUS M/S STEEL AUTHORITY OF INDIA & ANR ETC. [2024 (7) TMI 1390 - SUPREME COURT (LB)], wherein it has been held that royalty is not a tax. Therefore, the respondents are well within their rights to levy GST on the royalty paid by the mineral concession holder for any mining concession granted by the State.

  The orders impugned herein i.e. notice dated 15.02.2024 and summon dated 15.03.2024 are upheld and the instant petition is accordingly dismissed.

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• 2024 (11) TMI 376
  

  Levy of GST on Royalty paid by a Mineral Concession Holder for any mining concession granted by the State - Constitutional validity of N/N. 11/2017-Central Tax (Rate) dated 28.06.2017, N/N. 1/2017-Central Tax (Rate) dated 28.06.2017 (Annexure P-2), Himachal Pradesh Govt. N/N. 11/2017 dated 30.06.2017, Himachal Pradesh Govt. N/N. 1/2017 dated 30.06.2017, N/N. 27/2018-Central Tax (Rate) dated 31.12.2018 and Himachal Pradesh Govt. N/N. 27/2018 dated 31.12.2018 - HELD THAT:- It is not in dispute that the judgment rendered in INDIA CEMENT LIMITED VERSUS STATE OF TAMIL NADU [1989 (10) TMI 53 - SUPREME COURT] has now been overruled by Nine-Judge Bench of the Hon’ble Supreme Court in MINERAL AREA DEVELOPMENT AUTHORITY & ANR. VERSUS M/S STEEL AUTHORITY OF INDIA & ANR ETC. [2024 (7) TMI 1390 - SUPREME COURT (LB)], wherein it has been held that royalty is not a tax. Therefore, the respondents are well within their rights to levy GST on the royalty paid by the mineral concession holder for any mining concession granted by the State.

  The orders impugned herein i.e. notices (Annexure P-17) dated 15.12.2022 17), (Annexure P-19) dated 22.06.2023, (Annexure P-20) dated 12.10.2023, (Annexure P-27) dated 30.10.2023 and summons (Annexure P-26) dated 23.10.2023 are upheld and the instant petition is accordingly dismissed.

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• 2024 (11) TMI 375
  

  Levy of GST on Royalty paid by a Mineral Concession Holder for any mining concession granted by the State - Constitutional validity of N/N. 11/2017-Central Tax (Rate) dated 28.06.2017, N/N. 1/2017-Central Tax (Rate) dated 28.06.2017 (Annexure P-2), Himachal Pradesh Govt. N/N. 11/2017 dated 30.06.2017, Himachal Pradesh Govt. N/N. 1/2017 dated 30.06.2017, N/N. 27/2018-Central Tax (Rate) dated 31.12.2018 and Himachal Pradesh Govt. N/N. 27/2018 dated 31.12.2018 - HELD THAT:- It is not in dispute that the judgment rendered in INDIA CEMENT LIMITED VERSUS STATE OF TAMIL NADU [1989 (10) TMI 53 - SUPREME COURT] has now been overruled by Nine-Judge Bench of the Hon’ble Supreme Court in MINERAL AREA DEVELOPMENT AUTHORITY & ANR. VERSUS M/S STEEL AUTHORITY OF INDIA & ANR ETC. [2024 (7) TMI 1390 - SUPREME COURT (LB)], wherein it has been held that royalty is not a tax. Therefore, the respondents are well within their rights to levy GST on the royalty paid by the mineral concession holder for any mining concession granted by the State.

  The orders impugned herein i.e. notices (Annexure P-15) dated 09.12.2022 & (Annexure P-16) dated 09.01.2023 and summons (Annexure P-17) dated 06.01.2023 & (Annexure P-18) dated 12.04.2023, are upheld and the instant petition is accordingly dismissed.

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• 2024 (11) TMI 374
  

  Jurisdiction of authorities to seize goods not in transit - HELD THAT:- The issue decided by the Supreme Court in The State of Punjab Vs. M/s Shiv Enterprises and others [2023 (1) TMI 842 - SUPREME COURT] where the Apex Court accordingly came to the conclusion that it is not for this Court to opine anything whether there was any evasion of tax or not while not interfering in the orders releasing the goods in question.

  The petition is dismissed.

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• 2024 (11) TMI 373
  

  Seeking quashing of FIR - maintainability of second SCN - forgery and fraudulent acts - clandestine manufacture and supply of cement clinker and cement without issue of invoices and without accounting for the same - HELD THAT:- In the considered opinion of this Court the contention of the learned Counsel for the Petitioner that the present FIR could not have been registered as GST Act itself provides for penalties for offences under Sections 122, 132 of the GST Act cannot be accepted because the offence under GST Act would not include misappropriation of funds and conversation of those funds for the personal use of the Petitioners herein which resulted in wrongful loss to the Company and its shareholders. It, therefore, cannot be said that both the FIRs arise out of the same cause of action or that the issue raised in the second FIR, i.e. FIR No.47/2024 can be dealt with under the provisions of the GST Act. There are specific allegations in the Show Cause Notice that the sale proceeds of such clandestine supply/sale of goods were collected in cash that has been utilized for purchase of unaccounted raw material like lime stone, packing material (PP bags), jewellery, paintings and other articles and also used for meeting travel expenses etc.

  It is pertinent to mention that FIR No. 24/2024 is primarily regarding fabrication of documents for ousting the Complainant and other class-I heir of Late KJS Ahluwalia from the Company by forging and fabricating the documents. Whereas the present FIR pertains to misappropriation of funds of the Company for personal use - The allegation in the present FIR is regarding misappropriation of funds of the Company and any person who has interest in the company can give the information to the Police and since these allegations constitute a cognizable offence, the Police has to investigate into the allegations. Material on record also indicates that there are several proceedings pending before the NCLT regarding transfer of shares of the Company and, therefore, it cannot be said that the Complainant does not have any locus standi to initiate the proceedings under IPC.

  It is well settled that High Court should be slow in interfering with the criminal proceedings at the initial stage. The Apex Court in SANAPAREDDY MAHEEDHAR AND ANOTHER VERSUS STATE OF ANDHRA PRADESH AND ANOTHER [2007 (12) TMI 497 - SUPREME COURT], has observed 'The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of FIR or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. However, if the High Court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 CrPC.'

  Thus, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.

  The investigation is at a nascent stage. This Court is of the opinion that the second FIR, i.e. FIR No.47/2024, which is sought to be quashed is based on different set of facts and facts which have come to light after filing of FIR No. 24/2024, which are not covered in the earlier FIR. This Court is of the opinion that the scope of both the FIRs are different and only background facts in the two FIRs, which trace the history of the dispute, are common. The fact that there is some over-lap between the two FIRs does not mean that they arise out of same cause of action and, therefore, the second FIR would not be maintainable.

  The Petition is dismissed along with the pending application.

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• 2024 (11) TMI 372
  

  Direction to petitioner to pay 5% penalty of the prevailing plot cost, for the belated period in implementation of project - HELD THAT:- As per Clause 2.1.2.(a) of O.O.No.30 of 2020 dated 31.07.2020, all the existing allottees who have completed 30 months from the date of allotment, shall be checked for minimum 50% plot utilization. If the allottees fail to have a minimum 50% of plot utilization (non-commencement of production or commencement of production with less than 50% plot utilization), deman notices for a penalty of 5% of the prevailing plot cost for the unutilized extent shall be issued on 01.10.2020.

  Admittedly, the petitioner complied the said clause by utilizing more than 65% of the plot. Even then as directed by this Court, the petitioner had paid the entire penalty amount. Further the petitioner had commenced its production even before raising the invoice. That apart, the pharmaceutical bulk drugs and chemicals were packed and despatched on 18.11.2022 itself, after complying with other conditions such as, QC product specification of the customer. Therefore, even before the despatch of goods, the petitioner company had started the production of the goods. Therefore, after having been paid the penalty amount to the tune of Rs. 55,66,001/- including SGST and CGST as 5% of the total cost of the plots, once against the petitioner cannot be directed to pay penalty of 5% of the prevailing plot cost.

  This Court finds infirmity and illegality in the impugned order passed by the first respondent and it can not be sustained and liable to be quashed. Accordingly, the impugned order dated 12.08.2023 passed by the first respondent in letter No.I/17051/2023, is hereby quashed - Petition allowed.

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• 2024 (11) TMI 371
  

  Challenge to SCN demanding GST on annuity payments - Constitutional validity of Circular No.150/6/2021 GST dated 17.06.2021 - contravention to Sl. No.23-A of Notification No. 12/2017-CT(Rate) dated 28.06.2017 (as amended) and the 22nd recommendations of the GST Council - HELD THAT:- By the contents of the circular, the Entry of 23A in the Notification that the GST is exempt on service falling under Service Code 9967, by way of access to a road or a bridge on payment of annuity has been reaffirmed. Additionally, explained that the service code covers (a) supporting services in transport (b) operation services of National Highways, State Highways, Express Highways, Roads and streets, (c) bridges and tunnel operation services, by way of access to a road or bridge on payment of toll under Entry 23 of the Notification. In substance, the services enumerated in 23 and 23A for providing access to roads or bridges are exempted, whether the consideration is in the form of tolls or annuities.

  The clarification of the 43rd GST Council saved exemption to the service under 9967 in entry No.23A and held that the exemption does not cover any deferred/annuity payment for construction service. Therefore it has been announced that the construction of roads simplicitor is taxable service, though the payment is in full or annuity to the concessionaire. The council’s reiteration preserved the exemption of the Service under the Code 9967 and enunciated that the taxable Service fall within the scope of heading 9954. A close reading of notification Nos. 12, 32 and 33 of 2017 in no way suggests that the entries 23 or 23A or 24A exempts the services under 9954 i.e. construction service of the highways, bridges, and so on - there is no intersection or overlap or contradiction of direction in the resolutions of the 22nd and the 43rd GST Council vis-à-vis Notifications Nos. 12, 32 and 33 of 2017 and the impugned circular.

  In the present case, so many factors need determination to positively conclude the petitioner’s claims and in the absence of any specific tenable ground demonstrating lack or error in the jurisdiction of the respondent department in the issuance of show cause notice or any other tenable ground necessitating interference of the Court at the stage of show cause notice and as there is also possibility of dropping the show cause notice considering the reply of the petitioner and on determination of facts, it is opined that interference at this stage is not warranted.

  Keeping open the claims of the petitioner to be presented before the appropriate authority and determination of contested facts, this writ petition is dismissed.

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• 2024 (11) TMI 370
  

  Seeking quashing the Order-in-Original passed by the Resp-4 u/s 73 of the CGST Act, 2017 - quashing the Demand Order in GST 07 by the Resp-4 of the CGST Act, 2017 - no excess claim of ITC for the period 2019-20 as it is already denied for the period 2017-18 - 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 VERSUS THE JOINT COMMISSIONER OF CENTRAL TAX; THE PRINCIPAL COMMISSIONER OF CENTRAL TAX BENGALURU; UNION OF INDIA; STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, BANGALORE [2024 (9) TMI 1648 - KARNATAKA HIGH COURT] where it was held that 'In view of the aforesaid amendment by inserting Section 16 (5) to the CGST / KGST Act, the present petition deserves to be disposed of relegating the parties to the original authority to implement and give effect to the said provisions after providing sufficient and reasonable opportunity to the petitioner and hearing them and proceed further in accordance with law and by issuing certain directions in this regard.'

  In view of the aforesaid facts and circumstances and the judgment of this Court in M/s. Sadhana Enviro Engineering’s case, the present petition also deserves to be allowed and disposed of in terms of the said judgment.

  Petition allowed.

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• 2024 (11) TMI 338
  

  Violation of principles of natural justice - without providing any further opportunity and in violation of the directions issued by this Court in the previous writ petition, the order impugned was passed - HELD THAT:- A perusal of the order impugned and the record of personal hearing indicates that personal hearing was held on 19.02.2024, 20.03.2024, 23.04.2024 and 22.05.2024, the order was passed by this Court on 30.05.2024, whereafter hearing was held on 07.06.2024 and 12.07.2024. On 12.07.2024, a prayer was made on behalf of the petitioner to keep the show cause notice in abeyance, as the matter was under investigation on an FIR lodged by the petitioner qua the bank officials.

  Qua the aspect raised by the petitioner also apparently, no specific finding has been recorded and reliance has been placed by indicating that the Hon'ble Court has acknowledged the fraud in GST whereas a reading of the order passed by this Court, it cannot be said that the Court had indicated anything which can foreclose the argument of the petitioner, the Court had only noticed the allegations regarding fraud as alleged by the petitioner.

  In view of the overall fact situation of the matter, it is apparent that after supply of the documents, the petitioner was not afforded any further opportunity of hearing, the directions issued by this Court in its order dated 30.05.2024, have not been followed and the finding which has been recorded pertaining to the fraud, is ipse dixit.

  The order dated 16.08.2024 (Annexure-14) is quashed and set aside. The matter is remanded back to the Joint Commissioner (Adjudication), Central GST Commissionerate, Ghaziabad, who would provide an opportunity of hearing, follow the directions given by this Court in its order dated 30.05.2024 and deal with the issue of fraud, as alleged by the petitioner appropriately and pass a fresh order.

  Petition allowed by way of remand.

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• 2024 (11) TMI 337
  

  Demand of penalty order under the provisions of CGST/ IGST Act and Rules - HELD THAT:- The denial by the respondents to apply provisions of Section 129(1)(a) of the Act in light of the clarification dated 31.12.2018 and judgments of this Court are based on the finding as indicated by the authority in Para-4 of its order. A perusal thereof indicates that the said finding essentially is factual and only based on the communication received from the CGST, Delhi regarding the initiation of cancellation proceedings. However, apparently, nothing was available on record of Respondent No.2 to indicate as to whether at all proceedings in this regard were initiated by the authority at Delhi. Further the GSTIN status produced by the petitioner indicates a status different form what is being claimed by the authority at Delhi wherein return has been filed on 20.10.2024 by the petitioner.

  The impugned demand of penalty order dated 27.09.2024 (Annexure-1) passed by Respondent No.2 is set aside. The writ petition is allowed. The matter is remanded back to the competent authority to pass a fresh order - Petition allowed by way of remand.

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• 2024 (11) TMI 336
  

  Violation of principles of natural justice - service of notices issued u/s 73 of GST Act - petitioner being unaware of issuance of the notices as well as passing of the order, could neither appear before the authority nor question the validity of the impugned order within the period of limitation - HELD THAT:- In the case of OLA FLEET TECHNOLOGIES PRIVATE LIMITED VERSUS STATE OF UP AND 2 OTHERS [2024 (7) TMI 1543 - ALLAHABAD HIGH COURT] a co-oridiante Bench of this Court inter alia observed that 'At present, it does appear that the petitioner is entitled to a benefit of doubt. No material exist to reject the contention being advanced that the impugned order was not reflecting under the tab "view notices and orders". On merits, as noted in the earlier orders an other dispute exists whether all replies and annexures to the replies as filed by the assessee were displayed to the assessing officer and whether those have been considered. We find, no useful purpose may be served for keeping this petition pending or calling for a counter affidavit or even relegating the petitioner to the available statutory remedy.'

  In view of the submissions made and the judgement in the case of Ola Fleet Technologies Pvt. Ltd the writ petition filed by the petitioner is allowed. The order impugned dated 23.08.2024 passed by the Deputy Commissioner, State Tax, Azamgarh (Annexure-1 to the writ petition) is quashed and set aside.

  Petition allowed.

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• 2024 (11) TMI 335
  

  Violation of principles of natural justice - neither the show cause notice nor the impugned order of assessment has been served on the petitioner by tender or RPAD, instead it had been uploaded in the common portal under the tab “Additional Notices/Orders” - HELD THAT:- The impugned order is set aside and the petitioner shall deposit 25% of the disputed tax within a period of two (2) weeks from the date of receipt of a copy of this order. On complying with the above condition, 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. If any such objections are filed, the same shall be considered by the respondent and orders shall be passed in accordance with law after affording a reasonable opportunity of hearing to the petitioner.

  The petition is disposed off.

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• 2024 (11) TMI 334
  

  Violation of principles of natural justice - Challenge to impugned order on the premise that the impugned order of assessment traverses beyond the show cause notice and also made without granting the petitioner an opportunity to place on record the documentary evidence in support of their objections/submissions/reply - discrepancy between GSTR-2A and GSTR-3B - Denial of ITC on discounts - finance charges - depreciation.

  Discrepancy between GSTR-2A and GSTR-3B - HELD THAT:- There is merit in the submissions of the learned counsel for the petitioner that the same is made in violation of principles of natural justice, inasmuch as the impugned order of adjudication traverses beyond the show cause notice. It is trite law that show cause notice forms the foundation of the order and an order, which traverses beyond the show cause notice, results in violation of principles of natural justice inasmuch as the party is denied an opportunity to put forth his case.

  Denial of ITC on discounts - finance charges - depreciation - HELD THAT:- The impugned order proceeds on the basis that the reply filed by the petitioner is not supported by documentary evidence. The learned counsel for the petitioner would submit that the petitioner may be granted one final opportunity before the adjudicating authority to enable them to submit the relevant documentary evidence in support of their objection.

  The impugned order is set aside. The petitioner shall deposit the tax liability in respect of other three issues, viz., denial of ITC on discounts, finance charges and depreciation, within a period of four (4) weeks from the date of receipt of a copy of this order. On complying with the above condition, the impugned order of assessment shall be treated as show cause notice and the petitioner shall submit its objections in respect of all the four issues, viz., discrepancy between GSTR-2A and GSTR-3B, denial of ITC on discounts, finance charges and depreciation, along with supporting documents/material, within a period of four (4) weeks from the date of receipt of a copy of this order. If any such objections are filed, the same shall be considered by the respondents and orders shall be passed in accordance with law after affording a reasonable opportunity of hearing to the petitioner.

  Petition disposed off.

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• 2024 (11) TMI 333
  

  Challenge to proceedings of the respondent in Summary of the Order in Form GST DRC-07 dated 29.04.2024 - reversal of ITC availed by the petitioner - petitioner had availed ITC from tax payer, who did not pay tax on outward supply made to the petitioner - respondent, without affording any opportunity of personal hearing to the petitioner, passed the impugned order - violation of principles of natural justice - HELD THAT:- The petitioner, upon receipt of such show cause notice, filed reply dated 16.04.2024 in Form GST DRC-06, however, the respondent, without affording any opportunity of personal hearing to the petitioner, passed the impugned order, thereby, confirming the proposals contained in the show cause notice.

  In terms of Section 75 (4) of the CGST Act, it is mandatory on the part of the respondent to provide an opportunity of hearing to the assessee before passing any adverse order, whereas, in the present case, no such opportunity was granted to the petitioner before confirming the demand made in the show cause notice, therefore, the impugned order is not only against the provisions contemplated under the Section 75 (4) of CGST Act but also suffers from violation of principles of natural justice. Hence, this Court is inclined to set aside the impugned order.

  The impugned order is set aside - the matter is remanded to the respondent for fresh consideration, in which case, the respondent is directed to issue a clear 14 days notice, thereby, affording an opportunity of personal hearing to the petitioner and after considering the reply that has already been filed by the petitioner and hearing the petitioner in full, shall decide the matter in accordance with law - Petition allowed by way of remand.

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