|
Advanced Search Options
GST - Case Laws
Showing 221 to 240 of 13886 Records
-
2024 (11) TMI 43
Seeking release of amount resumed/seized by respondent no. 2 - power to seize cash under Section 67 of the CGST Act - it was held by High Court that 'The present petition is required to be allowed and the respondents are liable to refund the money seized' - HELD THAT:- In view of the submission that there is a conflict between the interpretation adopted by the Delhi High Court and the Madhya Pradesh High Court, issue notice on the application seeking condonation of delay as well as on the Special Leave Petition.
-
2024 (11) TMI 42
Maintainability of petition - availability of alternative remedy of appeal - Reimbursement of extra GST amount paid @ 6% from 01.01.2022 to 30.09.2022 along with interest - grievance of the petitioner is that despite the aforesaid enhancement in the rate of GST bu N/N. 15/2021 CT(R) dated 18.11.2021, from 01.01.2022, the respondents are paying the running bills with 12% GST and the petitioner is paying 18% GST - HELD THAT:- Needless to say that no disputed question of facts are involved in this case, therefore, the petitioner cannot be relegated to the Dispute Resolution Form as provided under the agreement - Respondent No.4 is a State GST Department, according to which also the rate of GST has been enhanced from 12% to 18% and same is liable to be paid by respondent No.2 which is a Government Entity.
The respondent No.2 is directed to pay the difference of GST amount to the petitioner @ 6% from 01.01.2022 to 30.09.2022 with a period of three months from the date of receipt of certified copy of this order, failing which the petitioner shall be entitled for interest @ 6% per annum from the date of entitlement - petition disposed off.
-
2024 (11) TMI 41
Principles of natural justice - Entitlement to personal hearing under Section 75 of GST Act - after receipt of the show-cause notice, petitioner chose not to appear before the authority to file a reply or to make a request for personal hearing - HELD THAT:- Sub-section (4) of Section 75 of GST Act says that an opportunity of hearing shall be granted where a request is received in writing from the person chargeable with the tax or penalty or any adverse decision is contemplated against such person. The Division Bench of this Court has held that the opportunity of hearing means persons opportunity of hearing and if such personal opportunity of hearing is not provided then the order is unsustainable and liable to be set aside.
As per sub-Rule 4 an opportunity of personal hearing shall be granted where a request is received in writing from a person chargeable with the tax or penalty. Even if the request is not received in writing, the oral request is also liable to be accepted provided the person appears and makes a request for grant of an opportunity of hearing, then only he can plead or claim an opportunity of personal hearing. When the person after receipt of the show-cause notice choose not to appear before the authority to file a reply or to make a request for personal hearing, then after passing the final order, he cannot allege that an opportunity of hearing has been denied to him.
This Writ Petition stands dismissed.
-
2024 (11) TMI 40
Violation of principes of natural justice - Challenge to SCN - SCN challenged on the ground that the impugned show cause notices are in nature of final order and the order-in-original is passed without giving an opportunity of hearing - Availment of ITC from fictitious firm i.e. M/s. Magnifico Minerals Private Limited - contravention of provisions of Section 16(2) of the GST Act - HELD THAT:- On perusal of the show cause notices dated 24.11.2023 and 28.12.2023, it is apparent that the respondent No. 2 has predetermined the demand while issuing the show cause notice on the basis of the reply filed by the petitioner and pursuant to the intimation, the tax ascertained is payable under Section 75 (4) of GST Act in FORM GST-DRC-01A. It is pertinent to note that in the grounds of show notice, there is no mention with regard to the word “show cause notice” except on the front page FORM DRC-01 is printed - the impugned show cause notices are issued by the respondent No. 2 in form of the order-in-original which cannot be sustained in the eye of law.
Both the show cause notices are worded identical based on the same facts and therefore, it would be in the interest of justice to quash the same and remand the matter back to the respondents-authorities. Consequently the order dated 29.12.2023 passed by the respondents also would not survive as show cause notice are quashed, so as to enable the respondent No. 2 to issue the fresh show cause notice - impugned show cause notices and SCN set aside - matter is remanded back to the respondent No. 2 to initiate the fresh proceedings in accordance with law within a period of twelve weeks from the date of receipt of copy of this order.
Petition allowed by way of remand.
-
2024 (11) TMI 39
Constitutional validity of section 17 (2) of the CGST Act - ultra vires Article 14 of the Constitution of India to the extent it restricts the refund under the inverted duty structure - vested right of the petitioner to claim refund of accumulated Input Tax Credit of goods and services on account of inverted duty structure under first proviso to section 54 (3) of the CGST Act - restrictions imposed on the petitioner on availment of credits used for exempted services under section 17 (2) of the CGST Act and claiming refund of taxes on inputs and input services under the first proviso to section 54 (3) of the CGST Act - right to avail Input Tax Credit - benefit of taxes paid on both inputs and input services - permission to apply for registration and file GST returns with effect from 1st July 2017 to avail Input Tax Credit - HELD THAT:- Sub-clause (ii) of sub-section (3) clearly stipulates that the refund of the input tax credit could not be payable even when the credit has accumulated on account of credit of tax or inputs being higher than the rate of tax on output supplies other than fully exempt supplies. Admittedly, the education service provided by the petitioner and other educational institution falls in category of fully exempt supply and therefore, the petitioner would not be entitled to the input tax credit. Sub-clause (ii) of section (3) applies to the inverted rate structure only whereas, in the zero rated supply, Nil Rated supply or exempted supply, the same would not be applicable as the very basis of inverted rate structure would not be applicable as the entire GST paid on the inputs would be liable to be refunded in such cases.
The legislature has rightly provided that the tax credit which has accumulated on account of rate of tax on inputs being higher than the output tax would not cover the supplies having Nil rate or exempted supplies to entitle the service provider or the manufacturer to avail the refund of the input tax credit.
When the provisions of Section 54 (3) of the GST Act provides for refund in terms of the first proviso to section 54 (3) categories which are governed by clauses (i) and (ii) and there is no constitutional entitlement to seek a refund as in clause (i) of the first proviso allowed a refund of the unutilized ITC in the case of zero-rated supplies made without payment of tax where as under clause (ii) of the first proviso, refund of unutilized ITC is available where the credit has accumulated on account of the rate of tax on inputs being higher than the rate of tax on output supplies other than inputs utilised for output having Nil rate or exempted. Therefore, when there is neither a constitutional guarantee nor a statutory entitlement to refund, the claim of the petitioner to grant refund of ITC on output service exempt from tax cannot be accepted.
Thus, no interference is called for by granting any relief as prayed for and the petition is accordingly dismissed.
-
2024 (11) TMI 38
Refund of double tax paid by the petitioner along with interest for the month of November and December, 2020 - non-filing of GSTR-3B for the period of July 2020 to December, 2020 - HELD THAT:- It is for the petitioner to claim the refund by making appropriate application before the appropriate authority in respect of the amount of tax paid by IRP as the IRP had obtained the GST registration number as per the Notification No. 11/2020 in the name of the petitioner only which has now been suspended.
So far as levy of interest and penalty is concerned, it is an admitted position that the petitioner was not served with any show-cause notice as required by section 126 (3) of the Act to provide an opportunity of hearing. Therefore, the impugned order so far as confirms levy of interest and penalty upon the petitioner is concerned, the same is hereby quashed and set aside and the matter is remanded back to the adjudicating authority i.e. respondent No. 2 to issue a fresh show-cause notice to the petitioner so as to enable the petitioner to avail opportunity of hearing as provided under sub-section (3) of section 126 of the GST Act. Such exercise shall be completed within a period of Twelve weeks from the date of receipt of copy of this order.
Petition disposed off by way of remand.
-
2024 (11) TMI 37
Rejection of condonation of delay - main order does not contain any reasons - violation of principles of natural justice - HELD THAT:- It is well settled legal position that affidavit-in-reply cannot supplement the main order, which is under challenge by assigning the reasons when the main order does not contain any reasons.
The Hon’ble Apex Court in various decisions has emphasized the need for giving reasons by the Court or quasi-judicial or administrative authority so as to see that when such order is challenged before the higher Forum or before the Court, then the Court can consider such reasons and justification for passing such order - reliance can be placed in SANT LAL GUPTA VERSUS MODERN CO-OPERATIVE GROUP HOUSING SOCIETY LTD. [2010 (10) TMI 194 - SUPREME COURT].
The impugned order, dated 12.06.2023 which is bereft of any reason is liable to be quashed and set aside and is accordingly quashed and set aside. The matter is remanded back to the respondent to pass afresh order giving detailed reasons in support of the decision, which may be taken in accordance with law - petition disposed off by way of remand.
-
2024 (11) TMI 36
Exemption claim - composite service offered to the consumers - whether the exemption granted to transmission or distribution of electricity by an electricity transmission or distribution utility company would take in the ancillary services offered to its consumers? - stay on penalty proceedings - HELD THAT:- The writ petitions stand closed, leaving the parties to abide by the Hon'ble Supreme Court judgment and status quo be maintained with respect to the payments and also the penalty proceedings till judgment is delivered by the Hon'ble Supreme Court in C.A. No. C.A. No. 006278 of 2019.
The penalty proceedings will stand stayed till the final decision of the Hon'ble Supreme Court in the matter of exemption regarding ancillary services, and if the issue is held against the assessee, then necessarily penalty will have to be independently considered, on the basis of principles governing imposition of penalties.
Petition disposed off.
-
2024 (10) TMI 1613
Grant of Regular Bail - evasion of GST - offences punishable under Sections 132 (1) (d), etc. of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The allegations against the applicant are that he caused a loss of Rs. 8.90 crore, an amount collected as GST from various firms, which he did not deposit with the Government. The procedure for the recovery of such tax is governed by the provisions of the Central Goods and Services Tax Act, 2017, Chapter XV. Section 76 specifies that if tax is collected but not paid to the Government, then the Act itself prescribes the procedure and mode for initiating recovery proceedings. The applicant has already deposited 60 Lakh Rupees before the authority. The applicant has expressed his willingness to deposit 10% of the alleged amount. In this regard, an undertaking has been filed on his behalf stating that the applicant is ready to deposit Rs. 90,00,000/- (Ninety Lakh Rupees) within a period of seven days.
This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of SANJAY CHANDRA VERSUS CBI [2011 (11) TMI 537 - SUPREME COURT] as well as in the case of GUDIKANTI NARASIMHULU AND ORS. VERSUS PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH [1977 (12) TMI 143 - SUPREME COURT]. Obviously, the conclusion of trial will take time and keeping the accused behind the bars is nothing but amounts to pre-trial conviction and therefore, considering the celebrated principle of bail jurisprudence is that “bail is a rule and jail is exception” as well as the concept of personal liberty guaranteed under Article 21 of the Constitution of India, present application deserves consideration.
Considering the nature of the allegations made against the applicant/s in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant/s on regular bail. Hence, the present application is allowed. The applicant/s is/are ordered to be released on regular bail on fulfilment of conditions imposed - bail application allowed.
-
2024 (10) TMI 1612
Direction for release of goods - opportunity of hearing provided or not - violation of principles of natural justice - HELD THAT:- It appears that the petitioner has challenged the order dated 09.01.2023 before the respondent No. 3-Deputy Commissioner of State Tax Appeals-8 (Surat) and the same is pending - During the pendency of the petition, it appears that the respondent No. 3 has granted the opportunity of hearing to the petitioner from time to time.
From the case proceedings placed on record by the learned Assistant Government Pleader, it appears that the petitioner did not remain present on 23rd October, 2024 and therefore, the respondent No. 3 has granted another opportunity of hearing by letter dated 24.10.2024 to the petitioner to remain present for further hearing as the learned advocate for the petitioner who appeared before the respondent No. 3 on 26.09.2024 prayed for further hearing through video conference.
The petitioner is disposed of so as to enable the respondent No. 3 to pass the appropriate order in accordance with law in the Appeal filed by the petitioner.
-
2024 (10) TMI 1611
Validity of SCN u/s 74 (1) of the CGST Act, 2017 read with section 20 of the IGST Act, 2017 - evasion and concealment of tax - parallel proceedings conducted by the DGGI and the Haryana State GST Intelligence Unit as well as Assistant Commissioner, CGST - HELD THAT:- It is found that the contentions raised by the petitioner are wholly misconceived. Issuance of notice under section 73 of the Act and dropping the same would not prevent the authorities from independently initiating proceedings under section 74 of the Act. The said proposition has also been accepted by the Allahabad High Court in HCL INFOTECH LTD VERSUS COMMISSIONER, COMMERCIAL TAX AND ANOTHER [2024 (9) TMI 1644 - ALLAHABAD HIGH COURT].
So far as the question raised by the petitioner with regard to parallel proceedings being conducted by the DGGI and the Haryana State GST Intelligence Unit as well as Assistant Commissioner, CGST is concerned, it is found that while the Assistant Commissioner, CGST issued a letter dated 10.03.2023 to the petitioner requesting him to deposit the tax liability, the office of the DGGI only issued notice seeking certain queries. However, none of the authorities, either of the CGST or the DGGI have proceeded or initiated proceedings under section 74 of the Act.
it is apparent that the allegations against the petitioner are that while he is stated of having availed excess to the tune of Rs. 8,84,57,976/- under head IGST; Rs. 23,44,08,735/- in CGST and Rs. 23,43,95,663/- under SGST, however, same is not appearing in GSTR-2A which reflects that the taxpayer has not deposited the tax liability in the Government treasury and has availed the same wrongfully. Resultantly, the notice has been issued to the petitioner.
The proceedings under section 74 of the Act are comprehensively and completely laid down under the provisions of the Act, and this Court would not in any manner cause hindrance in the disposal of the proceedings.
The writ petition cannot be entertained for the said purposes, more so when prima facie the show cause notice specifically reflects the allegations which the tax authorities feel to reflect of a fraud having been committed by the petitioner. The case and facts of HCL Infotech Ltd. are found to be different from the present case and it cannot be said that the notice does not reflect the allegations.
Petition dismissed.
-
2024 (10) TMI 1610
Violation of principles of natural justice - assessment order passed without affording an opportunity of personal hearing - prayer to remand the matter back to the first respondent on condition that the petitioner shall pay 10% of the disputed tax amount - HELD THAT:- As far as this case is concerned, without providing an opportunity of personal hearing to the petitioner, the first respondent has passed the impugned assessment order. Therefore, this Court is of the opinion that the impugned assessment order passed by the first respondent is liable to be quashed and it is just to afford an opportunity of personal hearing to the petitioner to put forth his case.
The Assessment Order bearing Ref.No.ZD330424197172H dated 25.04.2024 passed by the first respondent and the Communication dated 25.09.2024 addressed to the second respondent by the first respondent are quashed and the matter is remanded back to the first respondent for fresh consideration on condition that the petitioner shall pay 10% of the disputed tax amount to the first respondent, within a period of four weeks from the date of receipt of a copy of this order. After making such payment, the petitioner shall produce the payment proof before the first respondent - Petiiton disposed off by way of remand.
-
2024 (10) TMI 1609
Challenge to impugned orders, recovery notices and bank attachment notice - mismatch of GSTR-3B and GSTR-2A - HELD THAT:- According to the petitioner, there was an error crept while filing the Form GSTR-3B. In this regard, a certificate was also obtained by the petitioner and the same was perused and accepted by the learned Government Advocate appearing for the respondent.
In such case, this Court is of the view that as contended by the learned Government Advocate appearing for the respondent, it is just and necessary to provide an opportunity to the petitioner to establish their case before the respondent. In such view of the matter, this Court is inclined to set aside the impugned assessment orders.
The four assessment orders dated 19.12.2023 came to be passed by the respondent pertaining to the Assessment Years 2017-18, 2018-19, 2019-20 and 2020-21 are set aside and the matters are remanded to the 1st respondent/The State Tax Officer for fresh consideration on condition that the petitioner shall pay 10% of disputed tax amount to the respondent, in each assessment order, within a period of four weeks from today (19.10.2024) and the setting aside of the impugned orders will take effect from the date of payment of the said amount - Petition disposed off by way of remand.
-
2024 (10) TMI 1608
Challenge to impugned Letter, directing payment through Electronic Cash Ledger, insofar as it has been issued arbitrarily and in violation of Article 14 of the Constitution - compliance with Section 107(6)(b) of the CGST Act using the Electronic Credit Ledger - HELD THAT:- Considering the facts of the present case, the amount paid by the petitioner as pre-deposit in compliance of section 107 (6) (b) of the CGST Act utilizing the amount of Electronic Credit Ledger is required to be considered valid and impugned letter dated 25.04.2023 issued by the respondent No. 2 directing the petitioner to pay pre-deposit amount through Electronic Cash Ledger is therefore, hereby quashed and set aside.
Therefore, the appeal filed by the petitioner is required to be heard on merits by considering the payment of pre-deposit by the petitioner from Electronic Credit Ledger as a sufficient compliance of the provisions of section 107 (6) (b) of the CGST Act.
The petition is accordingly disposed of.
-
2024 (10) TMI 1607
Violation of principles of natural justice - neither the SCN nor the impugned order of assessment has been served by tendering to the petitioner or by registered post, instead it was uploaded in the common portal - mismatch between GSTR-2A and GSTR-3B - 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.
Petition disposed off.
-
2024 (10) TMI 1606
Violation of principles of natural justice - non-applicatjon of mind - petitioner not heard before passing such orders - availment of excess ITC - HELD THAT:- Unfortunately, the petitioner could not file reply immediately to such notice, owing to the fact that the petitioner's Authorized Person, who is taking care of the statutory compliance was not well. However, the excess ITC availed by the petitioner was already rectified/reversed by the petitioner during the monthly returns filed in the subsequent months and to the extent GSTR-3B was also filed, however, the respondent, without considering the said aspect, as if, the petitioner has availed ITC in entirety, passed the impugned orders towards tax liability as well as equivalent amount towards penalty/interest. Though the petitioner filed Applications dated 04.05.2024 and 12.07.2024 setting out such details along with relevant documents and sought for rectification, the respondent, without any application of mind, rejected the Applications by virtue of the impugned orders dated 10.05.2024 and 27.08.2024 respectively.
Therefore, this Court is of the view that the impugned orders are nothing but an outcome of total non application of mind and also suffer from violation of principles of natural justice, as the petitioner has not been heard before passing such orders. Hence, this Court is inclined to set aside the same.
The impugned orders dated 23.04.2024 as well as the Rejection Orders dated 10.05.2024 and 27.08.2024 respectively are set aside - the matters are remanded to the respondent for fresh consideration - petition allowed by way of remand.
-
2024 (10) TMI 1605
Violation of principles of natural justice - valuable right of the petitioner to defend through reply as well as right of personal hearing was taken away - HELD THAT:- The learned counsel for the respondents could not explain the finding given in the portal. The said recording in the portal i.e., ‘Reply furnished, pending for order by tax officer’ makes it clear that the petitioner’s reply to show-cause notice was received by the respondents. Thus, finding given by the Authority in the impugned order that the petitioner failed to submit his reply is factually incorrect and cannot sustain judicial scrutiny. If the reply of the petitioner is not considered, the principles of natural justice were grossly violated. For this singular reason alone, the impugned order cannot sustain judicial scrutiny and the same is liable to be set aside.
The Writ Petition is disposed of by setting aside the impugned order dated 25.04.2024 and the Authority is directed to consider the reply filed by the petitioner to the show-cause notice dated 27.12.2023 and proceed further in accordance with law from that stage.
-
2024 (10) TMI 1604
Denial of refund of input tax credit debited by the petitioner as a pre-deposit - non-inclusion of the freight and pumping charges collected by the petitioner from its customers into taxable value of the Ready Mix Concrete (RMC) manufactured and supplied by the petitioner to its customers - HELD THAT:- The amount of pre-deposit debited by the petitioner in the returns filed by the petitioner for the respective months for the Assessment Years 2015- 2016 from its input tax credit claimed under the Tamil Nadu Value Added Tax regime is now sought to be denied vide Impugned Intimations all dated 25.11.2021 invoking the Circular No.05/2015/MM3/15440/2013 dated 06.02.2015. The Court is of the view that refund of the aforesaid amounts cannot be denied, since the substantial questions of law now has been answered in favour of the petitioner in terms of the order passed in Tax Case (Revision) Nos.10 and 11 of 2013 dated 13.12.2018.
Further, having accepted the pre-deposit of input tax credit through a debit in the VAT Returns and having considered the Revision Orders passed on 14.09.2021, it is not open for the Commercial Tax Department now to turn around and deny the refund stating that the petitioner had not complied with the Order dated 25.03.2015 passed by this Court.
As per Section 142(6)(a) and (b) of the Tamil Nadu Goods and Services Tax (TNGST) Act, 2017, the amounts paid as pre-deposit has to be refunded back - the Impugned Intimations all dated 25.11.2021 invoking the Circular No.05/2015/MM3/15440/2013, dated 06.02.2015 at this belated point of time seeking to deny refund are liable to be quashed and are accordingly quashed with consequential reliefs.
The respondents are therefore directed to refund the amount to the petitioner within a period of thirty (30) days from the date of receipt of a copy of this order - Petition allowed.
-
2024 (10) TMI 1603
Direction to open the online portal in order to rectify the clerical mistake committed in wrongly filing the detail under Column B2C without mentioning GST number of the recipient instead of Column B2B in the GSTR-1 - Ipetitioner submits that the representation dated 20.09.2021 of the petitioner deserves to be considered and disposed by the respondents - HELD THAT:- The grievance of the petitioner is justified. The petitioner is therefore directed to resubmit the representation strictly in accordance with the Circular No.183/15/2022-GST (F.No.CBIC-20001/2/2022- GST) dated 27.12.2022.
The respondents are directed to consider the revised representation and pass appropriate orders on merits as expeditiously as possible preferably within a period of three months from the date of filing of the revised representation strictly in accordance with Circular No.183/15/2022-GST (F.No.CBIC- 20001/2/2022-GST) dated 27.12.2022.
Petition disposed off.
-
2024 (10) TMI 1602
Violation of principles of natural justice - non-speaking order - objections of the petitioner not dealt - Input mismatch of Input Tax Credit (ITC) on comparison between GSTR-3B & GSTR-2A and GSTR-3B & GSTR-5 - Discrepancy between GSTR-1 and E-Way bill outward supplies - HELD THAT:- The objections of the petitioner have not been dealt with by the respondent while passing the impugned order, the impugned order suffers from the vice of being a non-speaking order and thus, the same is liable to be set aside, more so, when there was a specific direction of this Court in the earlier round of litigation to pass a speaking order.
The impugned order passed by the respondent dated 21.05.2024 is set aside. The respondent/authority shall consider the objections filed by the petitioner and pass speaking order in accordance with law, after affording an opportunity of personal hearing to the petitioner, within a period of twelve (12) weeks from the date of receipt of a copy of this order - Petition disposed off by way of remand.
............
|
9911796707
