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GST - Case Laws
Showing 21 to 40 of 11477 Records
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2024 (5) TMI 408 - KARNATAKA HIGH COURT
Refund of GST paid deposited by the Vendor on advance paid by the appellant since no supply was made - Return/refund of the entire advance amount - vendor did not supply goods under the contract to the petitioner and the contract was cancelled - order rejecting refund is unreasoned, cryptic, non-speaking order without assigning any reasons as to why the refund application was rejected - violation of principles of natural justice - HELD THAT:- It is relevant to note that respondent No. 1 has come to the conclusion that supplier/vendor was the person ought to have issued credit note and thereafter, it was open for the petitioner to seek refund and without doing so, the petitioner is not entitled to seek refund of the GST. Respondent No. 1 has also come to the conclusion that it is for the vendor to file an appropriate application before the respondents/authorities seeking refund and only thereafter, the grievance of the petitioner can be addressed for the purpose of refund.
In the facts and circumstances of the instant case viz., the payment of sum of Rs. 14,08,79,262/- paid by the petitioner to the vendor, payment of Rs. 2,53,58,268/- towards GST by the vendor to respondents and refund of entire amount of Rs. 14,08,79,262/- by encashment of the bank guarantee by the petitioner and other material on record would cumulatively indicate that there was no GST liability either by the petitioner or his vendor were concerned and by applying doctrine/principles of unjust enrichment and restitution and since the aforesaid GST amount is lying with the respondents, who are retaining the same without there being any GST liability either by the petitioner or the vendor, it is deemed just and appropriate to set aside the order dated 06.09.2021 passed by respondent No. 2 as well as impugned order dated 30.09.2023 passed by respondent No. 1/Appellate Authority and direct the concerned respondents to refund entire GST amount of Rs. 2,53,58,268/- back to the petitioner within a stipulated time frame.
Refund application filed by petitioner allowed.
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2024 (5) TMI 406 - ALLAHABAD HIGH COURT
Provisional attachment of bank account - HELD THAT:- The cause of action does not appear to exist, insofar as the revenue authorities have realised that provisional attachment order dated 16.2.2023 does not survive.
It appears to be a common mistake being caused by revenue authorities where provisional attachment orders may never continue for more than one year are allowed to exist beyond that end date. Such error on the part of the revenue authorities leaves the assessee with no option but to approach this Court for effective direction on the revenue authorities to actually lift the provisional attachment.
In face of the statutory provision being unequivocally clear, the revenue authorities when called upon by this Court, take a stand as has been noted in the present facts. Thus, the provisional attachment orders are actually lifted only upon the revenue authorities being questioned about the illegality of their action, by this Court.
Once the statutory law admits of no doubt and the revenue authorities do offer correction to the error committed by them upon being pointed out by this Court, it is found that such litigation whenever it arises to be wholly avoidable - petition disposed off.
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2024 (5) TMI 405 - ALLAHABAD HIGH COURT
Cancellation of GST registration of petitioner - time limitation - HELD THAT:- In the present case, the facts are similar to one in SURENDRA BAHADUR SINGH VERSUS STATE OF U.P. THRU. PRIN. SECY. COMMERCIAL TAX (GST) LKO. AND 2 OTHERS [2023 (8) TMI 1262 - ALLAHABAD HIGH COURT], wherein the appeal was barred by time under Section 107 of the Act. However, the Division Bench in Surendra Bahadur Singh's case took into consideration the original order and set aside the same being non-reasoned and allowed the petitioner therein to file reply to the show cause notice.
The orders impugned herein are liable to be set aside. Accordingly, the order in original dated May 13, 2020 and the appellate order dated April 3, 2024 are quashed and set aside - the writ petition is allowed.
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2024 (5) TMI 404 - ALLAHABAD HIGH COURT
Refund claim - non-availability of proper / correct bank account details of the taxpayers - Rule 97A of the CGST Rules, 2017 - HELD THAT:- While it is observed that such a dispute should never have arisen before this Court and the respondent-authorities ought to have addressed the grievance efficiently, in real time as may not require present petition to be filed by the petitioner, needlessly, at the same time in view of further fact that at present the refund has been paid out, the cause of action brought by the petitioner does not survive.
The writ petition is dismissed as infructuous.
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2024 (5) TMI 403 - ALLAHABAD HIGH COURT
Maintainability of petition - availability of alternative remedy - Violation of principles of natural justice - no opportunity of personal hearing was granted - SCN does not provide any date, place and time of hearing despite the same being mandatory procedure.
Availability of alternative remedy of appeal - HELD THAT:- The Court thereafter observed that the stand taken by the respondents that the petitioner has alternative remedy of appeal under Section 107 of the Act cannot be accepted. Insofar as it is settled law that availability of alternative remedy, is not a complete bar to entertain a writ petition under Article 226 of the Constitution of India and has referred to exceptions that have been carved out to alternative remedy by the Hon'ble Supreme Court with regard to three cases i.e. (i) where there is complete lack of jurisdiction in the officer or authority to take the action or to pass the order impugned; or (ii) where vires of an Act, Rules, Notification or any of its provisions has been challenged; or (iii) where an order prejudicial to the writ petitioner has been passed in total violation of principles of natural justice.
Opportunity of personal hearing - HELD THAT:- The action taken against the petitioner under Section 74(9) of the Act does not provide for personal hearing to be given to the concerned person chargeable with tax or penalty. It only states that the proper officer shall after considering the representation, if any, made by the person chargeable with tax determine the amount of tax, interest and penalty due from such person and issue an order.
It has been argued that sub-clauses of Section 75 of the Act relate to the procedure to be followed by the Officer after remand of the matter by the appellate authority or tribunal or the court and sub-section (4) should be read in that context and it requires that an opportunity of hearing shall be granted where a request is received in writing from the person chargeable with tax or penalty or where an adverse decision is contemplated against such person - the petitioner has also argued that Section 75(4) of the Act would be otiose as if this Court comes to the conclusion that the argument raised by the learned counsel for the State-respondents is liable to be accepted as Section 74(1) of the Act also contemplates issuance of a notice and calling for a reply.
This Court having considered the submissions made by the learned counsel for the parties has gone through the leading judgment in the case of BHARAT MINT AND ALLIED CHEMICALS VERSUS COMMISSIONER COMMERCIAL TAX AND 2 OTHERS [2022 (3) TMI 492 - ALLAHABAD HIGH COURT] and find that the said judgment although has read into the language of Section 75(4) of the Act and the right of "personal" hearing, it has not mentioned any causes omissus on the part of the legislature reading into the statute words like "personal" hearing" as the Act itself only states that an opportunity of hearing shall be given.
Order is reserved - Till pronouncement of the judgement, the impugned orders passed by the assessing authority shall remain stayed.
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2024 (5) TMI 402 - MADRAS HIGH COURT
Challenge to summary order passed against the petitioner under Section 74 of the Tamil Nadu Value Added Tax Act, 2017 - petitioner has not enclosed the copy of the detailed order passed against the petitioner on the same day - opportunity of personal hearing not provided - violation of principles of natural justice - HELD THAT:- As per the decision of the Hon'ble Supreme Court in the case of Assistant Commissioner (CT) LTU, Kakinadu and others Vs. Glaxo Smith Kline Consumer Health Care Limited [2020 (5) TMI 149 - SUPREME COURT], this Writ Petition, at this distant point of time, is not maintainable. In any event, the fact remains that the petitioner has initiated proceedings for rectifying the returns filed under Section 139 of the Income Tax Act, 1961. However, the petitioner has not secured any order from the Assessing Officer to rectify the return filed by him for the relevant Assessment Year, based on which, the impugned assessment order has been passed under the provisions of the TNGST Act, 2017.
The case of the petitioner that no personal hearing was given to the petitioner also cannot be countenanced as the petitioner was indeed given an opportunity of being hearing by issuance of a personal hearing notices dated 22.11.2022 and 19.12.2022 before the impugned order dated 30.12.2022 was passed. It appears that the petitioner however did not opt to appear before the respondent before the impugned order was passed. The impugned order however considered the reply filed by the petitioner on 19.11.2022 and 12.12.2022.
In any event, the fact remains that the petitioner has still not obtained any order under Section 154 of the Income Tax Act, 1961 rectifying the return filed by him under Section 139 of the Income Tax Act, 1961. Therefore, even if the petitioner had participated in the proceedings for personal hearing, it would have been merely an empty formality - a partial relief can be granted to the petitioner by permitting the petitioner to file a statutory appeal before the Appellate Authority i.e., Deputy Commissioner-ST (Appeal), Madurai, Tirunelveli Division, under Section 107 of the TNGST Act, 2017, within a period of 30 days from the date of receipt of a copy of this order, subject to the petitioner pre-depositing the amount as is contemplated under Section 107 of the TNGST Act, 2017 along with the proposed appeal.
The writ petition is disposed off.
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2024 (5) TMI 401 - KARNATAKA HIGH COURT
Liability to pay the differential GST amount (being the difference between GST and VAT) for each the works contract / composite supply executed by the petitioner - works contract - HELD THAT:- The issue involved in the present writ petitions would fall under category KVAT regime as is enunciated in SRI CHANDRASHEKARAIAH, M/S. GOVINDE GOWDA AND SONS, M/S. D.K. CONSTRUCTIONS, M/S. SRI AYYAPPA CONSTRUCTIONS, M/S. ANNAPOORNESHWARI CONSTRUCTIONS, M/S. BHOOMIKA BUILDERS, VERSUS THE STATE OF KARNATAKA, THE UNION OF INDIA, THE GOODS AND SERVICES TAX COUNCIL, PRINCIPAL COMMISSIONER OF CENTRAL TAX, COMMISSIONER OF COMMERCIAL TAXES, CAUVERY NEERAVARI NIGAMA LIMITED, AND OTHER [2023 (6) TMI 93 - KARNATAKA HIGH COURT] where it was held that 'I find considerable force in the submission made by the learned Senior counsel for the petitioners that the tax component is an independent component which the petitioners do not retain as a profit and is a statutory payment to be made.'
When there is a concluded contract and rate has been fixed in KVAT regime for the work contract as per schedule rate, petitioners cannot be directed to pay the Goods and Service Tax for the work that they have completed and received payment.
SCN in respect of the writ petitioners are without any basis - Petition allowed.
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2024 (5) TMI 400 - MADRAS HIGH COURT
Rejection of rectification petition - turnover of the petitioner was erroneously reported in the GSTR 1 return - petitioner states that the correct turnover was reported in the GSTR 3B return and the entire tax liability is on account of an inadvertent error committed while filing the GSTR 1 return - HELD THAT:- The petitioner's reply dated 05.02.2024 has been placed on record. In such reply, the petitioner asserted that the correct turnover was Rs. 92,28,895/- and not Rs. 9,22,89,895/- as wrongly reported in the GSTR 1 return. Since the petitioner did not file the annual return for the relevant assessment period, it appears that the petitioner did not rectify this error in the annual return. A tax liability of Rs. 1,48,20,834/- was imposed on the petitioner under the impugned assessment order. Prima facie, it appears that such tax liability had arisen only on account of the turnover reported in the GSTR 1 return.
The interest of justice warrants that the petitioner be provided an opportunity to establish that the genuine turnover was only Rs. 92,28,895/- and not Rs. 9,22,89,895/-. Solely for such reason, the impugned order calls for interference - the impugned order dated 20.12.2023 is quashed and the matter is remanded for reconsideration.
Petition disposed off by way of remand.
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2024 (5) TMI 399 - AUTHORITY FOR ADVANCE RULING, TAMILNADU
Exemption from GST - residential dwelling for use as residence services or not - hostel accommodation being provided by the applicant to students and working women - eligibility for GST exemption in terms of Entry No. 12 of Notification No. 12/2017-Central Tax (Rate), dated 28-6-2017 - HELD THAT:- It is clear that the purpose and objective of the notification is nothing but to avoid taxing residential properties taken on rent by family or individuals and the benefit of exemption is not extended to the premises which do not qualify as residential dwelling for use as residence. Further, unless the twin conditions of ‘renting of residential dwelling’ for ‘use as residence,’ being inter-twined and inseparable, are not met, the exemption is not available. As per settled position in taxation laws, especially when exemptions or concessions or benefits are to be availed, the interpretation is to be literally and strictly construed and not in liberal terms. In effect, the place rented out is neither a residential dwelling nor being rented out for use as residence - Hence, it is clear that hostel accommodation is not equivalent to residential accommodation and hence the services supplied by the applicant would not be eligible for exemption under Entry 12 of Exemption Notification No. 12/2017-C.T. (Rate), dated 28-6-2017 and under the identical Notification under the TNGST Act, 2017, and also under Entry 13 of Exemption Notification No. 9/2017-I.T. (Rate), dated 28-6-2017, as amended.
Requirement for registration - HELD THAT:- The applicant’s service of providing hostel accommodation is not eligible for exemption under Entry 12 of Exemption Notification No. 12/2017-C.T. (Rate), dated 28-6-2017 as amended, the applicant is very much be required to take registration under the GST Enactments, as the arrangement between the applicant and the hostel occupants is liable to be classified as transaction in the course of furtherance of business and hence, as per Section 7(1)(a) of CGST Act, 2017 read with Entry No. 2(b) of the Second Schedule to the CGST Act, the said transaction constitutes “supply” - the applicant is required to get themselves registered in the State of Tamil Nadu, if their aggregate turnover in a financial year exceeds twenty lakh rupees.
Classification of service - providing hostel accommodation - rate of tax - HELD THAT:- The hotels are meant for a temporary stay (2-5 days) and have lot of facilities and staff, but hostels are used for a longer period and have basic facilities with minimal staff required by the inmates to stay at a reasonable rate. Therefore, hostel services cannot be equated to a hotel accommodation and hotel GST rates cannot be applied to a hostel. Therefore, supply of hostel accommodation services (Tariff Heading 9963) is taxable @ 9% CGST + 9% SGST under Sl. No. 7(vi) of the above Notification [Sl. No. 7(ix) as per original notification].
Taxability - composite supply or not - activity of supply of in-house food to the inmates of the hostel amounts to providing services in a composite manner and the hostel accommodation services provided by the applicant, being the principal supply - HELD THAT:- In the event of the hostel accommodation being an exempt activity, whether the incidental activity of supply of in-house food to the inmates of the hostel would also be exempt being in the nature of a composite exempt supply - As per Section 8 of the CGST Act, 2017, for a Composite supply, the tax rate on the principal supply will be treated as the tax rate on the given composite supply. Since the applicant provides a number of services in a composite manner, the hostel accommodation services provided by the applicant, being the principal supply, which is taxable @ 18%, will be tax rate for the composite supply provided by them.
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2024 (5) TMI 363 - CALCUTTA HIGH COURT
Detention of goods alongwith penalty - e-way bill in the present case had expired on the date when the vehicle-in-question along with the goods were intercepted - HELD THAT:- There is no reference to the ground of non-evasion of tax or deliberate delay.
Simply because there was no extension of the e-way bill, the same does not pre-supposes that there was an intention to evade tax. There is no finding either by the adjudicating officer or by the appellate authority as regards the intent of evasion of tax. There appears to be no material available to conclude evasion of Tax.
Hon’ble Supreme Court in the case of Vardan Associates [2024 (2) TMI 189 - SUPREME COURT] had been pleased to observe that the appellant cannot shirk from its responsibilities to comply with the requirements in law to generate a fresh e-way bill or to seek extension thereof. But the observations made by the Hon’ble Supreme Court in the said judgment are in relation to a challenge as regards payment of tax and penalty and not in relation to the factum of presumption being drawn on the intention to evade tax on the non-extension of the validity of the e-way bill.
Petition disposed off.
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2024 (5) TMI 362 - CALCUTTA HIGH COURT
Reversal of ITC - notice has been issued without causing any verification from the supplier’s end and denying credit to the appellant - violation of principles of natural justice - HELD THAT:- The effect and purport of Form GSTR-2A was explained by the Hon'ble Supreme Court in Bharti Airtel Ltd [2021 (11) TMI 109 - SUPREME COURT]. It was held that Form GSTR-2A is only a facilitator for taking a confirm decision while doing such self-assessment. Non-performance or nonoperability of Form GSTR-2A or for that matter, other forms will be of no avail because the dispensation stipulated at the relevant time obliged the registered persons to submit return on the basis of such self-assessment in Form GSTR-3B manually on electronic platform.
The first respondent without resorting to any action against the fourth respondent who is the selling dealer has ignored the tax invoices produced by the appellant as well as the bank statement to substantiate that they have paid the price for the goods and services rendered as well as the tax payable there on, the action of the first respondent has to be branded as arbitrarily. Therefore, before directing the appellant to reverse the input tax credit and remit the same to the government, the first respondent ought to have taken action against the fourth respondent the selling dealer and unless and until the first respondent is able to bring out the exceptional case where there has been collusion between the appellant and the fourth respondent or where the fourth respondent is missing or the fourth respondent has closed down its business or the fourth respondent does not have any assets and such other contingencies, straight away the first respondent was not justified in directing the appellant to reverse the input tax credit availed by them.
The orders passed in the writ petition is set aside and the order passed by the first respondent namely the Assistant Commissioner, State Tax, Ballygunge Charge, is set aside - Appeal allowed.
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2024 (5) TMI 361 - MADRAS HIGH COURT
Validity of assessment order - challenge to assessment order on the ground that the Petitioner's reply dated 01.03.2023 was not duly taken into account - benefit of Input Tax Credit - HELD THAT:- On perusal of the impugned order, it is evident that two purchase bills that were submitted by the Petitioner as enclosures to the reply dated 05.01.2023 were referred to therein. However, there is no reference therein to the subsequent reply dated 01.03.2023. The Petitioner has approached this Court almost one year after the impugned order was issued. In these circumstances, reconsideration is warranted by putting the Petitioner on terms.
The impugned order dated 09.05.2023 is set aside on condition that the Petitioner remits 15% of the disputed tax demand within a period of two weeks from the date of receipt of a copy of this order. Within the aforesaid period, the Petitioner is permitted to submit a further reply by enclosing all relevant documents - Petition is disposed off.
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2024 (5) TMI 359 - KARNATAKA HIGH COURT
Restraint on levying GST on un-denatured Extra Neutral Alcohol supplied by the petitioner - no written explanation was submitted nor the opportunity to have the personal hearing is sought for by the petitioner - violation of principles of natural justice - HELD THAT:- It is only a show-cause notice issued by respondent No. 4 calling upon the petitioner to submit his explanation. An option was also given to seek personal hearing. Even though, there is no explanation by the petitioner for the reasons best known to him, the petitioner has rushed to this court seeking to quash the show-cause notice on several grounds and such grounds could have been raised by the petitioner in his written explanation as to why said show-cause notice could not have been issued.
The Apex Court in UNION OF INDIA & OTHERS VERSUS COASTAL CONTAINER TRANSPORTERS ASSOCIATION & OTHERS [2019 (2) TMI 1497 - SUPREME COURT] frowned upon practice on approaching this court of issuance of show-cause notice, without giving written explanation to enable the authority to consider his defence and to pass appropriate orders. Therefore, the petitioner has rushed to this court to challenge the show-cause notice without availing the opportunity given to him to submit his written explanation. Therefore, the writ petition is not maintainable.
The writ petition is dismissed.
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2024 (5) TMI 358 - MADRAS HIGH COURT
Violation of principles of natural justice - non-service of SCN - notices that preceded the assessment order and the impugned order were uploaded on the GST portal, but not served on the petitioner through any other mode - cancellation of petitioner's registration - HELD THAT:- The petitioner has placed on record the document indicating the cancellation of registration with effect from 30.03.2019. Since it appears that the registration was cancelled, it cannot be expected that the petitioner should monitor the GST portal in the same manner as a registered person. However, learned Government Advocate submits, on instructions, that the show cause notice was also sent to the petitioner by e-mail. The petitioner has also placed on record the reminder dated 20.12.2023, which indicates that the petitioner accessed the portal.
The petitioner agrees to remit 10% of the disputed tax demand as a condition for remand - it is just and appropriate that the petitioner be provided an opportunity to contest the tax demand, albeit by putting the petitioner on terms.
The impugned order is quashed subject to the petitioner remitting 10% of the disputed tax demand as agreed to within fifteen days from the date of receipt of a copy of this order - Petition disposed off.
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2024 (5) TMI 357 - MADRAS HIGH COURT
Imposition of GST under the reverse charge mechanism on the mining lease amount paid by the petitioner to the Government (royalty) - HELD THAT:- The Division Bench Judgment in a batch of cases where the lead case is A.Venkatachalam v. Assistant Commissioner (ST), Palladam [2024 (2) TMI 488 - MADRAS HIGH COURT] has disposed off the issues with specific directions.
In view of the said judgment, this petition is liable to be disposed of on the same terms. Consequently, the petitioner is permitted to submit his reply to the intimation within a maximum period of four weeks from the date of receipt of a copy of this order. - petition disposed off.
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2024 (5) TMI 356 - ALLAHABAD HIGH COURT
Rejection of refund on the ground of delay - time limitation - HELD THAT:- Undoubtedly the claim for refund should have been made by the petitioner within two years from the relevant date i.e. date of export. The export having been made during the years 2018 and 2019, the refund applications should have been filed by 2020 and 2021. At the same time, it cannot be lost sight that owing to spread of Pandemic Covid-19, first upon orders passed by the Supreme Court, in Public Interest Litigation and then in terms of the Government Notification No.13 of 2022, dated 5th July, 2022, the limitation for the duration 15.2.2020 to 28.2.2022 remained suspended.
The applications for refund were filed by the petitioner not later than 21.6.2021 (for the tax period April, 2018 to March, 2019) and not later than 24.7.2021 (for the tax period April, 2019 to June, 2019).
The matter remitted to respondent No.3 i.e. Assistant Commissioner, CGST, Division- (IV) to proceed to pass fresh orders on the refund applications made by the petitioner, without raising any objection as to delay - Petition disposed off by way of remand.
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2024 (5) TMI 355 - PATNA HIGH COURT
Maintainability of petition - non-constitution of the Tribunal - petitioner is deprived of his statutory remedy under sub-section (8) and sub-section (9) of Section 112 of the BGST Act - HELD THAT:- The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 9/2019-State Tax, S.O. 399, dated 11-12-2019 for removal of difficulties, in exercise of powers under Section 172 of the BGST Act, which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the BGST Act, enters office.
Petition is disposed off subject to deposit of a sum equal to 20 per cent of the remaining amount of tax in dispute, if not already deposited, in addition to the amount deposited earlier under sub-section (6) of Section 107 of the BGST Act, the petitioner must be extended the statutory benefit of stay under sub-section (9) of Section 112 of the BGST Act. The petitioner cannot be deprived of the benefit, due to non-constitution of the Tribunal by the respondents themselves.
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2024 (5) TMI 319 - CALCUTTA HIGH COURT
Time Limitation for filing appeal - condonation of delay - Appellate Authority has the jurisdiction and/or competence to condone the delay beyond the prescribed period of one month provided for filing an appeal under Section 107(4) of the said Act? - HELD THAT:- It is found that the observations made by the Appellate Authority that there is no scope under the provisions of the said Act read with corresponding Chapter and Section of the said Act for condoning the delay beyond four month cannot be sustained. Such finding is set aside.
It may be noticed that the petitioner did not file any application for condonation of delay before the Appellate Authority. The petitioner, however, says that before the application under Section 5 of the Limitation Act could be filed the appeal was dismissed on the ground of limitation without giving an opportunity to the petitioner - Be that as it may, since the petitioner has not filed an application for condonation of delay, this Court cannot consider whether there is any sufficient cause for condoning the delay.
Thus, no relief can be granted in favour of the petitioner at this stage - The writ petition is accordingly disposed of.
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2024 (5) TMI 318 - CALCUTTA HIGH COURT
Time Limitation - Refusal on the part of the appellate authority to condone the delay in maintaining the appeal under Section 107 of the West Bengal Goods and Services Tax Act, 2017 - determination under Section 73 of the said Act.
Whether the appellate authority had failed to exercise jurisdiction in rejecting the application for condonation of delay, inter alia, on the ground that the same was filed beyond the maximum period of four months from the date of communication of the order?
HELD THAT:- An identical issue had fell for consideration before the Hon’ble Division Bench of this Court in the case of S.K. CHAKRABORTY & SONS VERSUS UNION OF INDIA & ORS. [2023 (12) TMI 290 - CALCUTTA HIGH COURT]. The Division Bench of this Court, while considering the scope and ambit of Section 107 of the said Act and the applicability of Section 5 of the Limitation Act 1963 on the basis of the provisions contained in Section 29(2) of the Limitation Act 1963, and by placing reliance on the judgment delivered by the Hon’ble Supreme Court in the case SUPERINTENDING ENGINEER/ DEHAR POWER HOUSE CIRCLE BHAKRA BEAS MANAGEMENT BOARD (PW) SLAPPER & ANOTHER VERSUS EXCISE AND TAXATION OFFICER, SUNDER NAGAR/ASSESSING AUTHORITY [2019 (11) TMI 6 - SUPREME COURT]], had concluded that in absence of non obstante clause rendering Section 29(2) of the Limitation Act 1963, non applicable and in absence of specific exclusion of Section 5 of the Limitation Act, 1963, it would be improper to read implied exclusion thereof.
The appellate authority is not denude of its power to condone the delay beyond one month from the prescribed period of limitation as provided for in Section 107(4) of the said Act.
The appellate authority had failed to exercise jurisdiction in refusing to consider the application for condonation of delay in its proper perspective, since the same was filed beyond the prescribed period of four months from the date of communication of the order appealed against - order passed by the Appellate Authority in rejecting the appeal on the ground of delay is set aside - petition disposed off.
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2024 (5) TMI 317 - RAJASTHAN HIGH COURT
Violation of principles of natural justice - notice under Section 46 of the Act has not been given to the petitioner - primary contention of petitioner is that provisions of Section 46 of the Act was not complied with and notice was not given to the petitioner who was a registered person - HELD THAT:- Since there is non-obstante clause under Section 62 of the Act, no proceedings could have taken place under Section 74 of the Act. It is not required to accept the said arguments for the very reason that this is not a case where the registered person failed to furnish the return rather, the petitioner has filed the NIL return. Therefore, there was no requirement to give notice to the petitioner under Section 46 of the Act. The present is a case where search and seizure had taken placed under Chapter XIV of the Act and in pursuance of search and seizure, summons were given under Section 70 of the Act to the petitioner to give evidence.
Consequently, thereupon the evidence of petitioner was recorded and after recording of evidence, petitioner was afforded three opportunities of personal hearing and thereafter, the present assessment order has been passed - there are no violation of principles of natural justice as the petitioner himself has admitted his GST liability in evidence given by him and the person who has himself given evidence, cannot be permitted to be cross-examined by his own counsel.
Since present is a case where there is no violation of principles of natural justice, it is not inclined to entertain the writ petition and the same is accordingly, dismissed.
Petition dismissed.
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