Quantification of interest - quantification of amount in the detention order dated 20.07.2024 runs contrary to Statutory Mandate of Sub-Section 3 of Section 129 of the said Act - HELD THAT:- The petitioner is ready to deposit bank guarantee of the original amount of Rs. 8,40,924/- (Rupees Eight lakh, forty thousand, nine hundred and twenty four only) and subject to depositing the same, his truck and material may be released.
If the petitioner deposits bank guarantee of Rs. 8,40,924/- (Rupees Eight lakh, forty thousand, nine hundred and twenty four only) before the respondents, his struck and material may be released after obtaining photographs and after fulfilling other formalities - The respondents are at liberty to issue notice to the petitioner as per Section 129 (3) of the Act for imposition of penalty.
Denial of input tax credit - interpretation of Section 16(2)(c) of the Central Goods and Services Tax/State Goods and Services Tax Act, 2017 - HELD THAT:- Since the right to avail input tax credit is a conditional right, the petitioner cannot be given the benefit of input tax credit unless the amount of tax collected from the petitioner has actually been paid to the exchequer - the above view is taken in the light of the observations of a Division Bench of this Court in Nahasshukoor v. Assistant Commissioner and Others [2023 (11) TMI 1153 - KERALA HIGH COURT], where this Court held 'As stated already, the input tax credit is in the nature of a benefit or concession conferred under the statute. The impugned provisions prescribe certain conditions for the purchasing dealers to avail of the benefit. It is up to the purchasing dealer to avail of the said benefit/concession following those conditions.'
The writ petition fails and it is accordingly dismissed.
Maintainability of petition - alternative remedy of appeal - HELD THAT:- The appellant was afforded a personal hearing before passing Ext.P11 order that was impugned in the writ petition. Although it is his case that he was not aware of the substance of the issues in respect to which he was asked to show cause, it is found from a perusal of Ext.P11 order that the appellant was informed of the grounds on which the show cause notice was issued, and he had submitted before the adjudicating authority, that the records necessary for completing the assessment were available with him, but had not been carried by him at the time of personal hearing.
It is found that the adjudication order was passed almost two weeks after the date of the personal hearing, within which time, the appellant could have made available the records before the adjudicating authority - appeal dismissed.
Challenge to writ petition - petitioner did not have a reasonable opportunity to contest the tax demand on merits - violation of principles of natural justice - mismatch between the petitioner's GSTR 3B returns and the auto-populated GSTR 2A - HELD THAT:- On examining the impugned order, it is clear that the tax proposal was confirmed because the taxpayer failed to provide supporting documents. By taking note of the assertion that non- participation was on account of not being aware of these proceedings, it is just and appropriate that the petitioner be provided an opportunity to contest the tax proposal on merits. In this connection, it should be noticed that a sum of about Rs. 2.7 crore was recovered from the petitioner's bank account and that the petitioner had remitted 10% of the disputed tax demand earlier while proposing to file the appeal. To that extent, revenue interest is secured.
The impugned order dated 15.09.2023 is set aside and the matter is remanded for reconsideration - Petition disposed off by way of remand.
Rejection of appeal on the ground of time limitation - cancellation of petitioner's GST registration - HELD THAT:- The admitted facts are that the order in original was issued on 30.06.2023 and the appeal was lodged on 21.11.2023. The petitioner asserts that he did not have access to the portal on account of the cancellation of GST registration and that a copy of the order was received on 22.07.2023 by e-mail. Even if the assertion of the petitioner is not accepted, the period of delay beyond the condonable period is only about twenty days. By taking note of the facts and circumstances outlined above, this is an appropriate case to direct the appellate authority to receive and dispose of the appeal on merits.
Petitions are disposed of by directing the appellate authority to receive and dispose of the appeal on merits.
Seeking to quash the order - impugned order has been passed without giving any opportunity of hearing to the Petitioner - violation of principles of natural justice - HELD THAT:- Considering the contentions raised by the learned counsel appearing for the parties, but, however without expressing any opinion on the merits of the case, since the impugned order dated 04.04.2024 under Annexure-1 has been passed without giving opportunity of hearing to the Petitioner, the said order cannot be sustained in the eye of law. Accordingly, the order dated 04.04.2024 is liable to be quashed and is hereby quashed.
This Court remits back the matter to the very same authority to rehear the same afresh - Petition disposed off by way of remand.
Dismissal of appeal - petitioner has approached this Court by way of the present Writ Petition, contending that, he is not conversant with Hindi and that both himself and his learned counsel are unable to prepare a proper Appeal against the order - HELD THAT:- This Court finds substantial merit in the contention of the petitioner that he is entitled to a certified copy of the order in English to enable him to take further steps in the matter and that non-furnishing of such an order copy would gravely prejudice his rights under the provisions of the CGST Act, 2017, as he would be unable to take further steps under the provisions of the CGST Act, 2017.
The 1st respondent shall furnish a certified copy of the order passed by him on 25.03.2024 bearing OIA No.VIZ-GST-001-APP-011 & 012-23-24, in English, to the petitioner herein. The said certified copy is to be furnished in English within three weeks from today - Petition disposed off.
Condonation of delay in filing the revocation application - compliance with all the requirements of paying the taxes, interest, late fee, penalty etc. due - HELD THAT:- The delay in Petitioner’s invoking the proviso to Rule 23 of the Odisha Goods and Services Tax Rules (OGST Rules) is condoned and it is directed that subject to the Petitioner depositing all the taxes, interest, late fee, penalty etc. due and complying with other formalities, the Petitioner’s application for revocation will be considered in accordance with law.
Condonation of delay in filing the revocation application - compliance with all the requirements of paying the taxes, interest, late fee, penalty etc. due - HELD THAT:- The delay in Petitioner’s invoking the proviso to Rule 23 of the Odisha Goods and Services Tax Rules (OGST Rules) is condoned and it is directed that subject to the Petitioner depositing all the taxes, interest, late fee, penalty etc. due and complying with other formalities, the Petitioner’s application for revocation will be considered in accordance with law.
The High Court of Karnataka disposed of the petition after the Revenue withdrew the Provisional Attachment under Section 83 of the CGST Act, 2017 in Form GST DRC-22. The petitioner has the liberty to challenge Form GST DRC-22 in accordance with the law. All contentions are kept open.
Dismissal of appeal filed beyond time - condonable under Section 107(4) of the KGST/CGST Act, 2017 or not - HELD THAT:- The date of filing of the appeal physically as extracted above, cannot be taken to be the date of actual filing of the appeal. The appeal ought to have been filed within 3 months from the date of receipt of the order and taking note of the date on which the appeal was filed online which is to be taken to be the date of filing of the appeal, the appeal could be construed to have been filed in time.
If that were to be so, the present appeals having been filed in time, the orders of the Appellate Authority at Annexure-A in all the writ petitions are set aside and the matter is remitted to the appellate authority for fresh adjudication on the merits of the matter.
Violation of principles of natural justice - Non-application of mind - alleged non payment of tax in respect of the sale of medicines - HELD THAT:- The petitioner has placed on record prima facie evidence that supplies were made by either EMC Pharmacy (HUF) or EMC Pharmacy, a partnership firm, during the relevant period. The invoices issued by the said entities indicate that tax was collected. It is asserted in the affidavit and in the petitioner's reply that such taxes were remitted to the Government. As regards tax on rent, the petitioner has asserted that no rent was collected since it was intended as an additional facility for persons who visit the hospital. Since these aspects were not taken into account while issuing the impugned order, the matter requires reconsideration.
The impugned order dated 27.03.2024 is set aside and the matter is remanded for reconsideration. After providing a reasonable opportunity to the petitioner, including a personal hearing, the respondent is directed to issue a fresh order with in three months from the date of receipt of a copy of this order.
Refund claim - appeal not filed within time limitation - adjudication of writ petition - HELD THAT:- The petitioner has placed on record evidence that the appeal was filed in Form GST APL-01 through the online mode on the GST portal on 28.06.2022. Such filing was in accordance with Rule 108(1) of the Central Goods and Services Tax Rules, 2017 (the GST Rules) and within the prescribed period of limitation.
Sub-rule(3) of Rule 108 of the Central Goods and Services Tax Rules, 2017 indicates clearly that the requirement of filing a self-certified copy of the order appealed against becomes applicable, as per the first proviso thereto, only where the order appealed against is not uploaded on the common portal. In the case at hand, the order was duly uploaded on the common portal. In such event, the date of online filing is the date of filing of the appeal. Even otherwise, the filing of a hard copy is a purely procedural requirement. Consequently, the impugned order is not sustainable.
The impugned order dated 24.01.2024 is set aside and the appellate authority is directed to receive and dispose of the appeal on merits - petition disposed off.
Petition filed under Article 226 of the Constitution of India seeking multifarious reliefs - maintainability of petition - availing statutory remedy of appeal - non-constitution of the Tribunal - stay of recovery of tax - 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. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T 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 B.G.S.T Act, enters office.
Subject to deposit of a sum equal to 20 percent 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 B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act. The petitioner cannot be deprived of the benefit, due to non- constitution of the Tribunal by the respondents themselves. The recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed.
Rectification of GST Return filed for the period 2020-21 and 2021-22 from B2B instead of B2C as was wrongly filed under GSTR-1 in order to get the Input Tax Credit (ITC) benefit - HELD THAT:- The fact remains that by permitting the Petitioner to rectify the above error, there will be no loss whatsoever caused to the Opposite Parties. It is not as if that there will be any escapement of tax. This is only about the ITC benefit which in any event has to be given to the Petitioner. On the contrary, if it is not permitted, then the Petitioner will unnecessarily be prejudiced.
The Madras High Court in M/S. SUN DYE CHEM VERSUS THE ASSISTANT COMMISSIONER (ST) , THE COMMISSIONER OF STATE TAX [2020 (11) TMI 108 - MADRAS HIGH COURT] accepted the plea of the Petitioner and directed that the Petitioner in that case should be permitted to file the corrected form.
The Court permits the Petitioner to resubmit the corrected Form-GSTR-1 from B2C to B2B for the aforementioned periods 2020-21 and 2021-22 and to enable the Petitioner to do so a direction is issued to the Opposite Parties to receive it manually. Once the corrected Forms are received manually, the Department will facilitate the uploading of those details in the web portal. The directions be carried out with in a period of four weeks.
Challenge to tender notification dated 15.11.2018, issued by respondent No.3 inviting bids for various civil works - non-performance of the work under the tender notification - forfeiture of earnest money deposit (EMD) submitted by the petitioner - HELD THAT:- Initially, condition No.10 of the tender document mandated separate GST payment on the contract amount as per the Government order dated 10.10.2018. The petitioner, having accepted this condition, participated in the tender process and secured the bid. Therefore, respondent No.3’s decision to issue a corrigendum withdrawing this condition, and subsequently forfeiting the petitioner’s EMD, constitutes an error. The petitioner did not violate any terms specified in the tender notification. Hence, respondent No.3’s action in forfeiting the petitioner’s EMD amount is deemed arbitrary and discriminatory.
Respondent No.3 is here by directed to refund the earnest/EMD money deposited by the petitioner following the tender notification dated 15.11.2018, vide Annexure-A, within a period of three months from the date of receipt of certified copy of this order - The writ petition is allowed.
Seeking to quash the order passed u/s 73 of the CGST/OGST Act without granting any opportunity of personal hearing to the Petitioner - violation of principles of natural justice - HELD THAT:- Without expressing any opinion on the merits of the case, since the State Tax officer while passing the order dated 14.12.2023 has not been given opportunity of hearing to the Petitioner, the said order cannot be sustained in the eye of law. Accordingly, the order dated 14.12.2023 is liable to be quashed and is hereby quashed. Therefore, this Court remits back to the very same authority to rehear the matter afresh in accordance with law after giving opportunity of hearing to the Petitioner.
Seeking to quash the order on the ground of limitation - delay in filing the appeal - HELD THAT:- This Court sets aside the order passed by the Commissioner (Appeal), GST, Central Excise & Customs, Bhubaneswar in Order-in-Appeal No.08/ST/RKL-GST/2024 and the matter is remitted to the very same authority to consider the same afresh taking into consideration the order passed by the apex Court in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2022 (1) TMI 385 - SC ORDER] and pass appropriate order affording opportunity of hearing to all the parties.
Challenge to summary of the Assessment Order passed under Section 73 of the SGST Act - HELD THAT:- The petitioner has been writing several letters asking the respondents to furnish the copy of the Assessment Order for the petitioner to file a statutory appeal. Despite the same, it appears that the respondents have not issued a certified copy of the order either posting it in the Web portal or by serving it manually.
The petitioner can be given liberty to file a statutory appeal within a period of 30 days from the date of receipt of the Assessment Order. The respondents are directed to furnish the copy of the same within a period of 30 days from the date of receipt of a copy of this order.
Exemption from GST - activity of providing, laying, jointing, testing and commissioning of sewer system and all ancillary works - Applicability of entry 3B of the NN 13/2017-CT (Rate) dated 28.06.2017 - BIKANER NAGAR NIGAM is local authority or not.
HELD THAT:- In the instant case the applicant is engaged in providing 'works contract services'. The applicant also admits the fact that they are engaged in supply of goods along with services for an immovable property. Thus, the services provided by the applicant are found to be works contract services, where goods along with services are supplied.
BIKANER NAGAR NIGAM is covered under the definition of Local Authority. In the instant case, the applicant is providing services to BIKANER NAGAR NIGAM which is a local authority.
The applicant provides services to Nagat Nigam, Bikaner, which is a ‘local authority' and all the three entries Sr No 3, 3A and 3B of the Notification 12/2017-CTR dtd 28.06.2017 are consistent and should not be read individually, the rate of tax on services provided by the applicant should be decided in terms of Sr No. 3 and 3A, since the said entries cover services provided to 'local authority', there need to go to Sr No. 3B - It is pertinent to mention here that the applicant has discharging it's tax liability by paying 18% GST (SGST CGST 9%) considering the supply of construction civil work under SAC 995424 prior to 19.10.2023. The SAC 995424 stands for general construction services of local water and sewerage pipelines, electricity and communication cables and related works.
The applicant is providing its services to NAGAR NIGAM, BIKANER (local authority) of Providing, laying, jointing, testing and commissioning of sewer system and all ancillary works along with Design, construction, supply, installation. testing and commissioning (Civil, Electrical, Mechanical and Instrumentation and other necessary works) of Sewage Pumping Station/MWP(if any), Sewage Treatment Plant based on SBA Process with provision for waste water reuse including MPS and 10 MLD capacity STP based on SBR process With provision of 1 year defect liability 5 years O&M for towns under package AMRUT-2.0/RAJ/SEWERAGE-13.. So, exemption entry No. 3B is not applicable to the applicant.
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