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GST - Case Laws
Showing 381 to 400 of 13886 Records
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2024 (10) TMI 1302
Cancellation of GST registration of petitioner with retrospective effect - attachment of petitioner no. 1’s premises - lack of opportunity for the petitioner to respond and be heard before the cancellation - violation of principles of natural justice - HELD THAT:- It is seen that the impugned SCN does not propose the cancellation of petitioner no. 1’s GST registration with retrospective effect from 01.07.2017. Plainly, if it is the respondents’ contention that petitioner no. 1’s principal place of business has been attached by the secured lenders under the SARFAESI Act, on 14.03.2023, the same cannot lead to the conclusion that petitioner no. 1 did not carry on its business from the said premises since inception.
It is also relevant to note that although the impugned SCN called upon the petitioner to appear for personal hearing before the proper officer, however, no date or time was fixed for personal hearing. Thus, in effect, the petitioners were also not afforded an opportunity of being heard.
The impugned order is set aside as it has been passed in violation of the principles of natural justice. Clearly, petitioner no. 1 had no opportunity to respond as to why its registration be not cancelled from a retrospective date - petition disposed off.
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2024 (10) TMI 1301
Excess claim for input tax credit (ITC) - availment of ITC in respect of supplies from the suppliers, whose GST registration was cancelled retrospectively - HELD THAT:- The petitioner was issued a reminder notice dated 04.12.2023 issued by respondent no. 1. Thereafter, the petitioner had filed another reply dated 15.12.2023, which was on similar lines as earlier reply dated 21.10.2023. The impugned order is ex facie unreasoned and has not considered any of the submissions made by the petitioner. The adjudicating authority has rejected the reply submitted by the petitioner with the observations that it “is found to be vague and miserably fails to counter the demands mentioned in DRC-01”. Additionally, the proper officer noted that no invoices, certificates, or proof of payment had been attached in support of his claim for excess ITC. The petitioner’s contention that it had not claimed any excess ITC and the difference was only on account of a technical glitch, was not addressed.
Since the impugned order is unreasoned, it is considered apposite to set aside the same on the aforesaid ground. It is so directed.
The matter is remanded to the adjudicating authority for considering afresh after affording the petitioner a reasonable opportunity to be heard - petition disposed off by way of remand.
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2024 (10) TMI 1300
Challenge to assessment order - disallowance of Input Tax Credit - disallowed only on the ground that the claims have been lodged beyond the period prescribed under Section 16(4) of the GST Acts - HELD THAT:- The impugned order passed by the respondent dated 24.04.2024 is set aside. The learned assessing adjudicating authority/respondent would re-do the assessment by taking into account the amendment referred supra. The petitioner may submit their objection by way of reply, within a period of three weeks from the date of receipt of a copy of this order along with the amendment and other details.
This Writ Petition is disposed of.
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2024 (10) TMI 1299
Freezing of Bank Accounts u/s 83 (1) of the Central Goods and Services Tax Act, 2017 - whether period of one year has not lapsed since the issuance of fresh orders? - HELD THAT:- A plain reading of the petitions in these cases indicate that the petitioners have not taken any effective steps in ascertaining the reasons as to why the bank accounts have been frozen.
It is considered apposite to direct the respondents to send copies of the respective orders passed under Section 83(1) of the CGST Act/DGST Act for freezing the bank accounts of the petitioners.
Petition disposed off.
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2024 (10) TMI 1298
Non-reversal of Input Tax Credit (ITC) in respect of exempted supplies - impugned order does not indicate the reasons - violation of principles of natural justice - HELD THAT:- It is apparent that the impugned order is unreasoned inasmuch as it does not consider the explanation as provided by the petitioner.
The impugned order is set aside and the matter is remanded to the Adjudicating Authority for considering afresh - Petition allowed by way of remand.
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2024 (10) TMI 1297
Seeking grant of anticipatory bail - offence under Section 132(1)(b) and 132(1)(c) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- On going through the material placed on record but without meaning to make any comment on the merits of the case, this Court is of the considered opinion that the present petition deserves to be allowed keeping in view the fact that the investigation has been completed, a complaint has been filed and the trial has commenced and the petitioner, whose arrest has been stayed on 16.12.2020, has not misused the same.
The petitioner is granted concession of anticipatory in the aforesaid complaint, subject to furnishing personal/surety bonds to the satisfaction of the trial Court and further subject to the compliance of conditions envisaged under Section 438(2) of Cr.P.C.
Petition allowed.
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2024 (10) TMI 1296
Maintainability of petition - non-constitution of Appellate Tribunal - Jurisdiction and authority of the Assistant Commissioner as a "proper officer" and "adjudicating authority." - cancellation of registration of GST of petiitoner - HELD THAT:- Since by order dated 30.06.2017, the Assistant Commissioner of State Tax, State Goods and Services Tax Officer has been assigned the functions of proper officer under the Uttarakhand Goods and Service Tax Act, 2017 by invoking powers conferred under sub Section (1), sub Section (3) of Section 5 read with clause (91) of Section 2 of the Uttarakhand Goods and Service Act, 2007 (Act No. 06 of 2017) and the Rules framed thereunder, which has not been challenged by the writ petitioner in the writ petition, whereby the Assistant Commissioner, who passed the order of cancellation of GST registration, is admittedly is an adjudicating authority as per Section 2(4) of the Act, which excludes the Commissioner and is also a proper officer in terms of Section 29(1) of the Act and hence the Appeal will lie against an order passed by such officer, i.e. Assistant Commissioner to the Commissioner.
Since after the remand order, the writ petition was disposed of by the learned Single Judge on 18.08.2022, which has not been assailed and for a limited purposes the review application has been preferred whether an Appeal will lie before the Commissioner against an order passed by the Assistant Commissioner, therefore, the Review Application is being allowed, in part.
The judgment and order passed by this Court on dated 20.06.2022 is reviewed and modified by holding that since the Commissioner has assigned the functions under the Act to the Assistant Commissioner and due to this assignment, the Assistant Commissioner being an officer under the Act is a proper officer in terms of Section 2(91) and also an adjudicating authority in terms of Section 2(4) of the Act and hence the Appeal will lie against the order passed by the Assistant Commissioner, before the Commissioner.
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2024 (10) TMI 1295
Violation of principles of natural justice - petitioner was unaware of proceedings culminating in the impugned order because GST compliances were entrusted to an auditor, who failed to notice the show cause notice and order on the GST portal - HELD THAT:- On examining the impugned order, it is clear that the tax proposal was confirmed because the tax payer did not file objections to the tax proposal. In view of the assertion that the tax payer could not participate in proceedings on account of being unaware of such proceedings, the interest of justice warrants that the petitioner be provided an opportunity by putting the petitioner on terms.
The impugned order dated 17.04.2024 is set aside on condition that the petitioner remits 10% of the disputed tax demand with in a period of 15 days from the date of receipt of a copy of this order. With in the said period, the petitioner is permitted to submit a reply to the show cause notice - Petition disposed off.
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2024 (10) TMI 1294
Order impugned against a dead person - this petition is filed by the legal heirs of the late M.K.Girish - HELD THAT:- The petitioners have placed on record the death certificate of Mr. M.K.Girish. Such death certificate specifies the date of death as 25.02.2021. The legal heirship certificate is also on record and the legal heirs are the siblings of the late M.K.Girish and the petitioners here in. In these circumstances, the impugned order cannot be sustained.
The impugned order dated 29.04.2024 is set aside by leaving it open to the respondent to initiate appropriate legal proceedings against the legal heirs of the late M.K.Girish - petition disposed off.
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2024 (10) TMI 1293
Violation of principles of natural justice - Failure to consider petitioner's reply to SCN - non-application of mind - singular contention is that the exercise of issuance of show-cause notice should not be an empty formality - HELD THAT:- In furtherance of show-cause notice, the petitioner filed reply which has not been considered. This exercise of issuance of notice and obtaining a reply, in our opinion, is not an empty public relation exercise. Instead, it is the codification of principles of natural justice in the statute and the said principle mandates that said reply be obtained before passing any adverse order and there must be an application of mind by considering the reply of the petitioner. In the instant case, in a hasty manner, without application of mind, the impugned order has been passed.
Without expressing any opinion on merits of the case, the impugned order dated 09.05.2024 is set aside by reserving liberty to the respondents to consider the reply of petitioner and pass a fresh order - Petition disposed off.
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2024 (10) TMI 1292
Non-service of SCN - order not communicated to the petitioner through any mode, including by uploading the same on the GST portal - violation of principles of natural justice - assessment period July 2017 to December 2017 - HELD THAT:- Pursuant to the order dated 09.01.2019, by notice dated 26.11.2020, the petitioner was called upon to remit the tax dues in relation to the order dated 09.01.2019. In spite of receiving the notice, the petitioner did not take any steps to obtain a copy of such order within a reasonable time. Instead, after receipt of the garnishee order, the petitioner addressed a communication to the first respondent on 15.05.2024 requesting for a certified copy of the impugned order and filed this writ petition upon receipt thereof.
Although a period of limitation is not prescribed for the initiation of proceedings under Article 226 of the Constitution of India, it is needless to say that the petitioner is required to approach the Court within a reasonable time. By taking into account the fact that the order is dated 09.01.2019 and the petitioner has filed this writ petition on 24.05.2024, the petitioner is not entitled to discretionary relief.
Petition dismissed.
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2024 (10) TMI 1291
Admissibility of Advance Ruling application - Levy of GST on stamp duty & registration fee paid for the purpose of a registering lease deed with registering authority - Applicability of Nil rate of tax under Sl. No. 47 of the exemption notification 12/2017-CT dtd. 28.06.2017 to stamp duty & registration fee paid by the Applicant for registering their mining lease deed - stamp duty and registration fee should be treated as consideration for mining lease service, when those are actually paid for receiving service of the Government for registration of a conveyance/ lease deed - HELD THAT:- In the instant case, the Applicant i.e. M/s. Geeta Rani Mohanty, Barbil, appears to have fallen under the above proviso to Section 98 (2) of the CGST Act, 2017. The Applicant opted for appeal to advance ruling at such a stage when the subject matter is already pending in the audit proceedings initiated by the Audit Commissionerate, Bhubaneswar under Section 65 of the CGST Act, 2017. Further, it is seen that DRC-01 dated 10.04.2024 has already been issued to the Applicant by the Additional Commissioner, Audit Commissionerate, Bhubaneswar demanding Rs. 6,27,74,106/- (Rupees Six Crores Twenty Seven Lakhs Seventy Four Thousand One Hundred and Six only) u/s 73 of the CGST Act, 2017.
Reliance placed upon the judgement passed by the Hon’ble Madras High Court in the case of M/S. ABT LIMITED, REPRESENTED BY ITS COMPANY SECRETARY, MR. S. ELAVAZHAGAN VERSUS THE ADDITIONAL COMMISSIONER OF GST & CENTRAL EXCISE, O/O. THE COMMISSIONER OF GST & CENTRAL EXCISE (AUDIT) , COIMBATORE [2024 (2) TMI 130 - MADRAS HIGH COURT] wherein, the Hon’ble Court held that during the conduct of GST Audit under Section 65 of the CGST Act, 2017, if it indicates that tax was not paid or short paid or that Input Tax Credit (ITC) was wrongly availed or utilized, the proper officer may initiate the action under Section 73 or 74 of the CGST Act under Section 65 (7) of the CGST Act.
The Audit is a valid proceeding under CGST Act, 2017 and it is also covered under sub section (2) of section 98 of the Act. Accordingly, the appeal filed by the appellant against advance ruling passed on the impugned issue is liable to be rejected.
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2024 (10) TMI 1245
Constitutional validity of exclusion (iii) to Explanation to section 17 of the CGST Act - ultra vires to the provisions of the CGST Act or not - applicability of exclusion (iii) to Explanation to section 17 of the CGST Act in case of service providers - HELD THAT:- The authorities under the Advance Ruling have primarily analysed the matter from the perspective of definitions of ‘plant’ and machinery by relying upon various dictionaries. Though there are some references to the functions, it is not as if the matter has been examined by focusing on the functionality test. The Hon’ble Supreme Court, in its judgment and order dated 3 October 2024 [2024 (10) TMI 286 - SUPREME COURT], has held that in each such case, a fact-finding enquiry is contemplated. Such an enquiry is necessary, inter alia, because such matters will have to be decided by recourse to the functionality test.
Possibly, when the Advance Ruling Authorities decided the matter, the Petitioner had yet to establish the requisite infrastructure - Respondents, is also justified in contending that the scope of judicial review in such matters is relatively minimal and, therefore, typically, determination of questions of fact not entered into unless a case of perversity is made out. However, that does not mean that a party should be deprived of an opportunity to place all relevant facts before the fact-finding authority given the circumstances arising from the Hon’ble Supreme Court’s judgment.
The order made by the Authority for Advance Ruling and the order dated 7 December 2019 made by the Appellate Authority set aside - matter remanded to the AAR for a fresh ruling in the light of the observations made by the Hon’ble Supreme Court.
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2024 (10) TMI 1244
Violation of principles of natural justice - appeal preferred by the petitioner was dismissed without hearing - time limitation - HELD THAT:- A perusal of the order indicates that the appeal was dismissed as the document which were required to be filed were not filed and the appellant was not even present before the appellate authority.
Considering the provisions contained in Section 107(8) read with relevant rules and there being no provision to dismiss the appeal for want of prosecution and following the judgment of this court in the case of M/S RAJDHANI ARMS CORPORATION, LUCKNOW THRU. PROPREITOR, SEEMA SARNA VERSUS COMMISSIONER OF COMMERCIAL TAX U.P., COMMERCIAL TAX BHAWAN, LUCKNOW [2024 (7) TMI 1391 - ALLAHABAD HIGH COURT], the impugned order dated 20.01.2024 is set aside. The appellate authority is directed to pass a fresh order in accordance with law after giving an opportunity of hearing to the petitioner.
To avoid any further delay, it is directed that the petitioner shall be present himself or through his authorized representative before the Tribunal on 06.11.2024 at 12:00 Noon. In case the petitioner does not present himself, the appellate authority would be at liberty to decide the appeal on merits in accordance with law.
Petition disposed off.
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2024 (10) TMI 1243
Parallel proceedings - both the State GST Authorities and Central GST Authorities are proceeding against the petitioner with regard to the same assessment years - HELD THAT:- It is clear from the factual matrix that Financial Year 2017-18, the actions were initiated by the respondent no.3 while for the remaining years the action was first initiated by the Central GST.
In light of the same, the Central GST is directed to continue with its investigation with regard to the show cause notice given to them except for the Financial Year 2017-18, which has already been completed by the State GST.
Petition disposed off.
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2024 (10) TMI 1242
Validity of SCN - Input Tax Credit (ITC) availed on construction goods - construction of building for leasing out to M/s Shishukunj Knowledge Society for running school - HELD THAT:- The matter of CHIEF COMMISSIONER OF CENTRAL GOODS AND SERVICE TAX & ORS. VERSUS M/S SAFARI RETREATS PRIVATE LTD. & ORS. [2024 (10) TMI 286 - SUPREME COURT] is relating to the construction of the mall. The Apex Court has held that each mall is different, therefore, in each case fact finding enquiry is contemplated. The High Court has not decided whether the mall in question will satisfy the functionality test of being a plant. The matter has been remanded back to decide, whether, on facts, the mall in question satisfies the functionality test so that it can be termed as a plant within the meaning of bracketed portion in Section 17 (5) (d). The same applies to warehouses or other buildings except hotels and cinema theatres. The Apex Court has held that if the building in which the premises are situated qualifies for the definition of plant, ITC can be allowed on goods and services used in setting up the immovable property, which is a plant.
The petitioner was required to satisfy adjudicating authority, whether the building in question qualifies for the definition of plant in order to avail the ITC, but the petitioner instead of submitting all these necessary documents chosen not to appear before the authority and directly approached this Court. Now the final order has been passed, which has not been challenged in this petition. The petitioner is having remedy to file an appeal against the said order. The petitioner is free to file an appeal before the appellate authority, wherein the petitioner may file all the necessary documents and rely on the law laid down by the Apex Court in the case of M/s Safari Retreats Private Ltd.
Petition dismissed.
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2024 (10) TMI 1241
Issues:
1. Impugning an order allowing an appeal but upholding revenue demand, penalty, and interest.
2. Refund claim rejection despite export of goods and eligibility for refund.
3. Remittance of the matter due to non-production of original documents.
4. Denial of consequential benefits to the petitioner.
5. Limitation on filing a fresh application and claiming interest.
Analysis:
1. The petitioner challenged an order dated 29.03.2024 that allowed their appeal but upheld the revenue demand, penalty, and interest. The petitioner contended that a part refund was granted subject to document production, but a subsequent order rejected the refund claim and upheld the revenue demand prematurely.
2. The Senior Counsel argued that the petitioner's export of goods entitled them to a refund under Section 54 of the CGST Act, 2017. The Appellate Authority recognized the eligibility for refund based on the main input supply of coal. The matter was remitted due to the non-production of original documents, allowing the petitioner to submit the relevant paperwork.
3. Despite the remittance, the petitioner was informed that they would not receive any consequential benefits. This decision meant that the revenue could pursue recovery without granting interest or other benefits, even if the petitioner succeeded in the Adjudicating Authority.
4. Additionally, the Senior Counsel highlighted that the petitioner would be prohibited from submitting a fresh application due to system restrictions. Any subsequent application would result in the denial of interest for the period between the first and second applications.
5. The Court issued notice to the respondent and directed the filing of a counter affidavit within four weeks. The operation of the order upholding the revenue demand was stayed, allowing the Adjudicating Authority to consider the refund claim independently. The petitioner was permitted to file a new refund application, with the Court reserving judgment on the claim for interest during the interim period.
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2024 (10) TMI 1240
Challenge to SCN demanding input tax credit availed by the Petitioner along with interest and penalty - ITC in respect of the IGST paid on manpower supply services received by the Petitioner during the period 2017- 2022 - HELD THAT:- A perusal of the material on record and the submissions made by both sides will clearly indicate that prior to the State GST Authorities issuing the impugned Show Cause Notices at Annexures – A, Al and A2 is concerned, the Central GST Authorities had already initiated proceedings as against the petitioner and consequently, in the light of Section 6(2)(b) of the KGST Act, 2017 which contemplates a complete bar / embargo on the State GST Authorities to initiate proceedings in a situation where the Central GST Authorities had already initiated proceedings as against the petitioner in respect of the same subject matter. The impugned Show Cause Notices at Annexures — A, Al and A2 are clearly illegal, arbitrary and without jurisdiction or authority of law and contrary to the aforesaid statutory provisions and the same deserve to be quashed.
The challenge to the impugned Show Cause Notice at Annexure-B can be disposed of by directing the petitioner to submit a suitable reply together with the relevant documents and by directing the concerned respondent Nos.1, 3 and 4, Central — GST Authorities to consider the same and proceed further in accordance with law bearing in mind the observations made (Section 13(3)(C) of the CGST Act, 2017, Section 128A of the CGST Act, 2017, Circular No. 211/5/24- GST dated 26.06.2024 etc.).
The impugned Show Cause Notices at Annexures — A, A1 and A2 dated 05.08.2023, 05.08.2023 and 06.10.2023, respectively, are hereby quashed - The petition is allowed in part.
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2024 (10) TMI 1239
Levy of penalties u/s 122 and 129 of the CGST/SGST Acts - Expiry of the e-way bill - mens rea in penalty imposition - HELD THAT:- In the facts of the present case, the e-way bill was generated at 10:00 P.M on 23.10.2021 for transporting goods over a distance of about 107 km and the e-way bill was therefore valid for a period of 24 hours, i.e., till 10:00 P.M on 24.10.2021. The third proviso to Sub-rule (10) of Rule 138 of the CGST/SGST Rules indicates that the petitioner had time till 06:00 AM on 25.10.2021 to extend the validity of the e-way bill. However, the petitioner had not done so and the vehicle was intercepted at 09:59 A.M on 25.10.2021.
Technically, there is a violation of the law by the petitioner and the reason stated for transporting goods without revalidating the e-way bill (see paragraph 4 of the writ petition) may not be supported by any material. However, the question remains as to whether this should automatically lead to the initiation and conclusion of the proceedings under Section 129 of the CGST/SGST Acts resulting in the imposition of a huge amount as tax and penalty. The learned Government Pleader may be right in contending that there is justification for the initiation of proceedings under Section 129 of the CGST/SGST Acts in the facts of this case.
However, once a plausible explanation is provided by the transporter/assessee, and it is found that there is no attempt to evade any tax, the question remains as to whether the proceedings must thereafter culminate in an order under Section 129 of the CGST/SGST Acts imposing the maximum penalty in terms of the provisions contained in Section 129 of the CGST/SGST Acts. While the initiation of the proceedings under Section 129 of the CGST/SGST Acts, in the facts of this case, cannot be found to be without jurisdiction, the fact remains that once the transporter/assessee had offered an explanation and had demonstrated that there was no attempt to evade tax and in the absence of any finding of an attempt to evade tax, the officer should have imposed a penalty as contemplated by the provisions of Section 122 (1) (xiv) of the CGST/SGST Acts only, without imposing penalty as contemplated by the provisions of Section 129 of the CGST/SGST Acts.
Coming to the judgment of a Division Bench of this Court in Daily Express [2019 (3) TMI 596 - KERALA HIGH COURT] it has to be held that the decision follows the view taken by the same bench in Indus Towers Ltd [2018 (7) TMI 1181 - KERALA HIGH COURT]. It no doubt takes the view that in a case covered by Section 129 and in view of the non-obstante clause neither the general discipline in the imposition of penalties in Section 126 nor the provisions of Section 122 would bar the imposition of penalty under Section 129.
It is declared that the provisions of Section 129 of the CGST/SGST Acts do not authorise the imposition of tax/penalty as contemplated by the provisions of Section 129 (1) (a) or Section 129 (1) (b) in cases where only minor discrepancies are noticed and such penalty can be imposed only for violations which may lead to evasion of tax or where the transport was with an intent to evade tax or in cases of repeated violations (even of a minor nature). In other cases, the authorities will impose penalties having due regard to the provisions of Sections 122 and 126 of the CGST/SGST Acts. In the facts of the present case, this Court is of the considered opinion that a penalty of Rs. 10,000/-, as contemplated by the provisions of Section 122 (1) (xiv) of the CGST/SGST Acts can be imposed. On payment of the penalty as directed above, the Ext.P7 bank guarantee produced by the petitioner shall be released to it.
Petition disposed off.
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2024 (10) TMI 1238
Dismissal of appeal as time barred - condonation of delay in filing appeal - HELD THAT:- The impugned order is set aside and the matter is remitted back to the Appellate Authority to decide the appeal afresh in accordance with law. The Appellate Authority shall decide the issue with regard to the date of filing of the appeal. If there is delay of less than thirty days, the Appellate Authority shall give an opportunity to petitioner for seeking condonation of delay.
Petition disposed off by way of remand.
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