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GST - Case Laws
Showing 621 to 640 of 13912 Records
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2024 (10) TMI 440
Grant of Interim order - direction to appellants to secure the entire tax component as made under the adjudication order by furnishing a bank guarantee to the satisfaction of the learned Registrar General of this Court - HELD THAT:- The adjudicating authority, which is the first authority in the hierarchy of authorities, is bound to consider the reply and record reasons as to why the reply is not satisfactory. This is manifestly absent in the adjudication order dated April 29, 2024. This would be sufficient to set aside the order and remand the entire proceedings back to the adjudicating authority/assessing officer.
The interim order passed in the writ petition is set aside and the writ petition is allowed and the adjudication order dated April 29, 2024 passed under section 73 of the WBGST Act, 2017 is set aside and the matter is remanded to the adjudicating authority for fresh consideration - Appeal allowed by way of remand.
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2024 (10) TMI 439
Maintainability of petition - availability of alternative remedy under the Arbitration Act - Seeking direction to respondents to reimburse the extra GST amount paid, along with interest - 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 which 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.
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2024 (10) TMI 438
Challenge to impugned orders along with the consequential GST DRC-13 notice for attachment of Bank Account passed by the first respondent for the assessment year 2017-2018 - mismatch of tax liability between GSTR-3B and GSTR-2A filed by the petitioner for the assessment year 2017-2018 - principles of natural justice - HELD THAT:- Upon perusal of the materials, it is evident that the impugned show cause notice was uploaded on the GST Portal Tab. According to the petitioner, the petitioner was unaware of the issuance of the show cause notice issued through the GST Portal and the original of the said show cause notice was not furnished to them.
In such circumstances, this Court is of the view that the impugned order came to be passed without affording any opportunity of personal hearing to the petitioner to establish its case, thereby violating the principles of natural justice and that it is just and necessary to provide an opportunity to the petitioner to establish their case on merits and in accordance with law.
This Court is inclined to set aside the impugned orders dated 29.12.2023 along with the consequential GST DRC-13 dated 19.06.2024 passed by the first respondent, subject to conditions imposed - petition disposed off.
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2024 (10) TMI 437
Time limitation - dismissal of appeal on the ground that the appeal was filed even beyond the condonable period of limitation - mismatch between GSTR - 3B and GSTR - 1 - HELD THAT:- The first respondent observed that there is no provision under the said Act to condone the delay and entertain the appeal. The first respondent is well justified in dismissing the appeal itself on the ground that it had been presented beyond the condonable period of limitation stipulated under the said Act.
In the instant case, on going through the assessment order, it is seen that a total liability of Rs. 2,47,398/- together with penalty has been imposed against the petitioner on the ground that there was a mismatch of liability between GSTR - 3B and GSTR - 1. The petitioner has come up with a clear case that no opportunity was given to them before passing the assessment order. Hence, they filed an appeal before the first respondent. However, the appeal itself was dismissed by the impugned order as it was filed beyond the condonable period. However, this Court is inclined to afford an opportunity to the petitioner by putting the petitioner on terms.
The impugned order passed by the first respondent is hereby set aside. The delay in filing the appeal before the first respondent is condoned - Petition allowed.
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2024 (10) TMI 436
Violation of principles of natural justice - failure to take advantage of the show cause notices issued by the respondent before the impugned orders were passed - time limitation - HELD THAT:- The petitioner can be given an opportunity to ventilate his grievance before the respondent on terms. Therefore, the petitioner shall deposit 25% disputed tax confirmed by the impugned order from Electronic Cash Ledger within a period of thirty (30) days from the date of receipt of copy of this order. The impugned order, dated 14.10.2023 passed by the respondent is quashed and the case is remitted back to the respondent to pass a fresh order on merits. The impugned order which stands quashed shall be treated as Addendum to the Show Cause Notice in DRC 01A, dated 06.04.2022 and DRC 01, dated 20.07.2023.
The petitioner shall file a consolidated reply within a period of 30 days from the date of receipt of copy of this order. The respondent shall thereafter proceed to pass a final order on merits and in accordance with law, as expeditiously as possible, preferably, within a period of three (3) months from the date of reply to be filed by the petitioner.
Petition allowed.
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2024 (10) TMI 435
Admissibility of the Advance Ruling application in view of the investigation initiated by DGGI - Definition and scope of 'proceedings' under the CGST Act, 2017 - scope of 'proceedings' under the CGST Act, 2017 - Levy of GST on fees collected by the Tamil Nadu Nurses and Midwives Council - HELD THAT:- An advance ruling is not required to be pronounced once an investigation is initiated against the applicant under the provisions of the CGST Act, or the GST Act of the respective State or Union Territory, involving the same issue on which the query for advance ruling has been raised. It is also opined that pronouncing a ruling on the same issue in respect of which a show cause notice has been issued, may vitiate the adjudication proceedings involving the said notice. At this juncture, it becomes imperative to analyse as to whether the query raised in the application for advance ruling is the same on which the investigation was initiated, and whether the investigation proceedings precedes the application for advance ruling.
Further, it is seen that while the application for advance ruling in the instant case was received on 28.06.2022, the first summon issued by the Senior Intelligence Officer, DGGI, Chennai Zonal Unit is dated 12.04.2022 based on which a statement has been recorded from Dr. S. Ani Grace Kalaimathi, Registrar of Tamil Nadu Nurses and Midwives Council on 18.04.2022, wherein the details of charges/fees collected by Tamil Nadu Nurses and Midwives Council for the period from 01.07.2017 to 31.03.2022, through their letter in Ref. No. 1538/NC/2022 dated 18.04.2022 is seen to have been communicated. Through another statement dated 14.06.2022, the legalities relating to taxability in the instant issue, is seen to have been discussed in a detailed manner.
The initiation of investigation by way of issue of summons; recording of statements dated 18.04.2022 and 14.06.2022; furnishing of details/ documents by the applicant on 18.04.2022 in relation to the issue involved in the instant case; issue of Incident Report No. 89/2022 dated 24.06.2022 issued by the DGGI, Chennai Zonal Unit, all precede the date of filing of advance ruling application, i.e.. 28.06.2022 by the applicant.
The application for advance ruling dated 28.05.2022 by the applicant is liable for rejection under the first proviso to Section 98 (2) of the CGST / TNGST Acts, 2017, in view of the fact that ‘proceedings’ on the same issue was already initiated and pending against the applicant.
The advance ruling application is rejected.
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2024 (10) TMI 434
Admissibility of the Advance Ruling application in view of the investigation initiated by DGGI - Definition and scope of 'proceedings' under the CGST Act, 2017 - scope of 'proceedings' under the CGST Act, 2017 - Levy of GST on various fees collected by Tamil Nadu Medical Council, a Government Authority - HELD THAT:- Since the first proviso to Section 98 (2) restricts admitting application seeking advance ruling on questions which are already pending in any proceedings in the case of an applicant under any of the provisions of the Act, the term ‘proceedings’ assumes immense significance in the context of the instant case. More so, because the applicant opines that the inquiry or investigation initiated by DGGI, would not fall within the ambit of the word ‘proceedings’ impacting the admissibility of the original application for advance ruling filed by the appellant - It is quite clear that the term ‘proceedings’ has not been defined under the CGST Act, 2017. However, the word ‘proceedings’ is seen to have been widely used in the Act, ibid, either as it is, in the context of the situation, or with a prefix bringing out the meaning and purpose in an unambiguous manner like Recovery proceedings’, ‘Assessment proceedings’, etc.
The term ‘proceedings’ used in the CGST Act, 2017 is not restricted to proceedings which commence after the issue of show cause notice alone, and that the same also denotes proceedings prior to the issue of show cause notice, or proceedings which may not culminate in the issue of any show cause notice at all. Accordingly, the notion of the applicant that the process relating to commencement of inquiry/investigation under summon procedure do not get covered the category of the term ‘proceedings’, under the CGST Act, 2017, is misconceived and misplaced, for the reason that apart from such judicial proceedings’, even the other relating to assessment, audit, detention/ seizure/ release of goods and conveyance which may or may not entail any issue of show cause notice, are also treated as ‘proceedings’ under the CGST Act, 2017.
Investigation is activated when there is enough predication to show that there is an alleged tax evasion and the essence of investigation is to carry out an in-depth review of the taxpayer’s records and activities to ensure that the tax due to the Government is not lost in evasion. Therefore, the commencement of investigation or inquiry is to be seen as the start of a proceeding to safeguard Government revenue.
It is opined that an advance ruling is not required to be pronounced once an investigation is initiated against the applicant under the provisions of the CGST Act, or the GST Act of the respective State or Union Territory, involving the same issue on which the query for advance ruling has been raised.
Further, it is seen that while the application for advance ruling in the instant case was filed by the applicant online on 30.12.2022, the first summon issued by the Senior Intelligence Officer, DGGI, Chennai Zonal Unit is dated 30.11.2022 for appearance on 07.12.2022. It is seen that the date of issue of the second summon is 20.12.2022 for appearance on 09.01.2023. It is quite clear from the above, that the initiation of proceedings by way of issue of both the summons that seeks the details/documents in relation to the issue involved in the instant case, precedes the date of filing of advance ruling application by the applicant. More specifically, the letter dated 19.12.2022 of the applicant furnishing the details of fees collected, unambiguously proves the case in point.
The application for advance ruling filed online dated 30.12.2022 by the applicant is liable for rejection under the first proviso to Section 98 (2) of the CGST / TNGST Acts, 2017, in view of the fact that ‘proceedings’ on the same issue was already pending against the applicant.
The advance ruling application is rejected.
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2024 (10) TMI 433
Classification of supply - supply of services or supply of goods - job work activity or not - body building activity on the chassis (meant for carrying goods) owned and provided by the principal (who is either independent customer who buy the chassis from OEM and send for body building or Chassis sent by OEM i.e. manufacturer of chassis who sends for body building activity) - to be classified under SAC Code - 998881 “Motor vehicle and trailer manufacturing services or under 8707 as “Bodies (including cabs), for the motor vehicles of headings 8701 to 8705? - HELD THAT:- It is found that any treatment or process which is applied to another person’s goods is a supply Of service. In the instant case the chassis is being supplied by customers to the applicant and the applicant undertakes the activity of body building on the chassis supplied to them. Hence the activity of body building on customer owned chassis is a ‘supply of service.
It is found that though the applicant has not submitted as to whether the individual private customer who buys the chassis from OEM and provide the same to the applicant for body building is registered under GST or not, the provisions of law enumerated in the preceding paras make a clear demarcation between the supply of body building activity made to GST registered persons and the supply of body building activity made to GST I-in-registered persons. Whereas the bus body building on chassis owned by GST registered customer is Job work, the bus body building on chassis owned by un-registered customer does not amount to job work. As per the definition of Job Work provided under Section 2 (68) of CGST Act 2017, “job work” means any treatment or process undertaken by a person on goods belonging to another registered persons and the expression “job worker” shall be construed accordingly. Hence, in as much as the treatment or process is undertaken on the goods belonging to un-registered person the same does not qualify to be job work - the activity Of body building by the applicant on chassis owned and provided by registered customer or un-registered customer both fall under the scope of supply of service and as per the scheme of classification of services merits to be classified at Heading 9988 Manufacturing services on physical inputs (goods) owned by others’ and precisely at Service code (Tariff) 998881 ‘Motor vehicle and trailer manufacturing services’.
If it is regarded as “job work activity” and “Supply of Services, whether the correct applicable rate of GST, will be at % (9+9) as applicable under Sr. No.26 (ic) or wilt it be 18% (9+9) as applicable under Sl.No. 26 (iv)? - HELD THAT:- The bus body building on chassis owned by GST registered customer amounts to Job work and the bus body building on chassis owned by un-registered customer does not amount to job work The rate of tax in both the cases i.e. if chassis is provided by the GST registered person or when chassis is provided by GST un-registered person, would be 9% under the CGST Act, 2017 and 9% under the SGST Act,2017, as per Entry No.26 (ic) and per Entry No. 26 (iv) respectively of the CGST Notification No. 11/2017 CT (R) dated 28-06-2017 and SGST Notification No. II(2)/CTR532(d-14)/2017 vide G.O. (Ms) No. 72 dated 29.06.2017.
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2024 (10) TMI 376
Refund claim - rejection on the ground of time limitation - scope of Section 161 of the CGST Act - dismissal of appeal by Assistant Commissioner despite Joint Commissioner's order - HELD THAT:- Taking notice of the fact that the Assistant Commissioner in his order dated 24.01.2024, notices that the Joint Commissioner had rejected his application for seeking rectification/clarification of the order passed in appeal, still proceeds to again dismiss the appeal on the ground of limitation, the Commissioner is directed to file an affidavit as to what steps have been taken against his subordinate, who has challenged his authority. However, no affidavit has been filed by him.
The Assistant Commissioner seems to be asserting his authority over and above the order passed in appeal by the Joint Commissioner, who has already observed that the application has to be treated within time and has to be decided on merits - Assistant Commissioner, a subordinate officer has refused to examine the case on merits and again dismissed the application as time barred. Such an approach adopted by the subordinate officer is the result of the virtual failure of system of hierarchy in the CGST.
If subordinate officers do not comply with the appellate orders, it would be something sort of administrative chaos. Such officers are required to be dealt with by the Department in a strict manner, so that they may not create a precedent for others to start insubordination. It also reflects in general public faith in filing appeals, which would be wavered if the appellate orders are not complied with. Litigation is also forced unnecessarily before this Court. Such insubordination requires to be dealt with more strictness.
The Commissioner is directed to take appropriate departmental action against the concerned Assistant Commissioner, Sewa Ram, for his insubordination, by initiating proceedings for major penalty - petition disposed off.
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2024 (10) TMI 375
Challenge to assessment order - Input Tax Credit has been 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 31.01.2024 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 (3) weeks from the date of receipt of a copy of this order along with the amendment and other details. If any such reply is filed, the same shall be considered and orders shall be passed, after affording reasonable opportunity of personal hearing to the petitioner. In respect of other issues, the impugned order shall remain undisturbed.
The respondent shall withdraw the garnishee proceedings, insofar as it relates to the demand in view of denial of ITC in terms of Section 16(4) of the Act for the period 2017-2018 covered vide order, dated 31.01.2024. Liberty is granted to the respondent to continue with the garnishee proceedings in respect of any other demand covered by the said garnishee proceedings.
Petition disposed off.
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2024 (10) TMI 374
Condonation of delay of 53 days in filing appeal - appeal filed before the appellate authority - HELD THAT:- Taking note of the fact that there is no adjudication on merits by the appellate authority and by reasons of the Appellate Tribunal not being available it would be necessary for this Court to scrutinize the records and determine the factual issues in order to test out the order passed by the proper officer on merits.
Having regard thereto and considering the fact that the entire amount of tax has already been recovered it would be prudent, at this stage, to remand the matter back to the appellate authority.
The appellate authority having due regard to the direction passed herein shall hear out and dispose of the appeal on merit as expeditiously as possible, preferably within a period of six weeks from the date of communication of this order.
Petition disposed off.
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2024 (10) TMI 373
Challenge to summons on grounds of jurisdiction - parallel proceedings - whether Central Authorities i.e. the Respondent No.3 have the jurisdiction in view of Section 6(2) of the Central Goods and Service Tax, Act, 2017 - it is submitted that the Petitioner has no objection in the question of the investigation so carried out in respect to M/s IESA Sales Pvt. Ltd. - HELD THAT:- The Respondent No.3 shall be at liberty to carry out the investigation in pursuance to the summons issued on 21.06.2024 and 05.07.2024 insofar as M/s IESA Sales Pvt. Ltd. However, in view of the communication dated 09.08.2024 reference to which have been made hereinabove and the submissions so made by the learned Standing counsel for the CGST, the Respondent Authorities more particularly the Respondent No.3 shall not carry out any further investigation in respect to such transaction of the Petitioner with M/s Ridhi Industries and M/s Amazonite Steels Private Ltd. in respect to the period on the basis of which communication dated 09.08.2024 has been issued.
Petition disposed off.
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2024 (10) TMI 372
Seeking grant of anticipatory bail - bribery - legality of investigation carried out - respondent agency has failed to show or indicate why the custodial interrogation of the petitioner is required for the purpose of the investigation - HELD THAT:- The complainant has made a complaint about demand of bribe by petitioner-Suresh Chand Meena, GST Inspector. He has explicitly referred to a telephonic conversation in which the complainant was called by petitioner Suresh Chand Meena. The said visit is corroborated by entry No. 18 on the visitors’ register, as per which, complainant Surender Sharma had visited to GST office to meet petitioner at 12.00 noon. Even phone number of complainant is mentioned in the register which further corroborates the complainant’s visit. Since the complainant was fed up of the demand, he made a complaint and taking advantage of secret passage in the premises and the absence of proper lighting in the said secret passage, petitioner fled away. Thus, it is a case where the petitioner is not entitled to bail.
A perusal of the bail petition and the documents attached, prima facie points towards the petitioner’s involvement and does not make out a case for bail. Any further discussions are likely to prejudice the petitioner; this court refrains from doing so.
Petition dismissed.
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2024 (10) TMI 371
Refund of Goods and Services Tax (GST) - challenge to Circular No.151/07/2021-GST dated 17.06.2021 as ultra vires the provisions of entry at Serial No.66(a) read with Paragraph 2(y) of the N/N. 12/2017-Central Tax (Rate) as well as the corresponding notifications issued under the Delhi Goods and Services Tax Act, 2017 - It is stated by the petitioner that the impugned refund rejection order dated 29.06.2022 was decided without considering the submissions of the petitioner and without granting any opportunity of personal hearing to the petitioner - Violation of principles of natural justice.
HELD THAT:- The present petition is amongst a batch of petitions that were heard together [being W.P.(C) No.1298/2023, W.P.(C) No.1300/2023 and W.P.(C) No.1303/2023] and W.P.(C) No.1298/2023 was heard as the lead matter. The questions raised in the present petition are covered by the decision rendered today in W.P.(C) No.1298/2023 [2024 (5) TMI 177 - DELHI HIGH COURT] where it was held that 'The orders rejecting the petitioner’s application for refund, which are impugned in this petition, are set aside.'
Matter remanded to the appropriate authority for consideration afresh - petition disposed off.
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2024 (10) TMI 314
Jurisdiction of officers issuing SCN - composite/mixed supply - lack of jurisdiction - Maintainability of writ petitions challenging SCN - HELD THAT:- It is evident from the definition of ‘Commissioner’ as defined under Section 2(24) of the Act, 2017 which means the Commissioner of central tax and includes the Principal Commissioner of central tax appointed under section 3 and the Commissioner of integrated tax appointed under the Integrated Goods and Services Tax Act. While the ‘Commissioner in the Board’ which has been defined under Section 2(25) which means the Commissioner referred to in Section 168.
The power of officers has been defined under Section 5 thereof wherein it has been provided that subject to such conditions and limitations as the Board may impose, an officer of central tax may exercise the powers and discharge the duties conferred or imposed on him under this Act. An officer of central tax may exercise the powers and discharge the duties conferred or imposed under this Act on any other officer of central tax who is subordinate to him. The Commissioner may, subject to such conditions and limitations as may be specified in this behalf by him, delegate his powers to any other officer who is subordinate to him. Notwithstanding anything contained in this section, an Appellate Authority shall not exercise the powers and discharge the duties conferred or imposed on any other officer of central tax.
This Court, therefore, is of the view that since the notification dated 01st July, 2017 has been issued in exercise of power conferred under Section 3 read with Section 5 under which the Board has been conferred with the power, in addition to appointment to be made by the Government, to impose the power upon the officer under the act and hence, the Additional Director General, Goods and Services Tax Intelligence or Additional Director General, Goods and Services Tax or Additional Director General, Audit has been notified to exercise the power of Commissioner and the Deputy/Assistant Director, Goods and Services Tax Intelligence or Deputy/Assistant Director, Goods and Services Tax or Deputy/Assistant Director, Audit has been authorized to exercise the power of Deputy Commissioner/Assistant Commissioner.
From conjoint reading of Sections 2(34) and 28 of the Act, it has been found that only such a Customs Officer who has been assigned the specific functions of assessment and reassessment of duty in the jurisdictional area where the import concerned has been affected, by either the Board or the Commissioner of Customs, in terms of Section 2(34) of the Act is competent to issue notice under Section 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose inasmuch as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions.
The Proper Officer which has been defined under Section 2(34) of the Act, 1962 and comparing it with the provision of Section 2(91) of the Act, 2017, it would be evident that there is material difference since under Section 2(34), the Proper Officer means the officer of Customs who is assigned those functions by the Board or the Commissioner of Customs while the Proper Officer as defined under Section 2(91) of the Act, 2017 means the proper officer in relation to any function to be performed under this Act, means the Commissioner or the officer of the central tax who is assigned that function by the Commissioner in the Board.
This Court is of the view that by virtue of the power exercised by the Board under Section 5 of the Act, 2017, a notification has been issued conferring power upon the Additional Director General, Goods and Services Tax Intelligence or Additional Director General, Goods and Services Tax or Additional Director General, Audit to act as a Commissioner and the Deputy/Assistant Director, Goods and Services Tax Intelligence or Deputy/Assistant Director, Goods and Services Tax or Deputy/Assistant Director, Audit to act as Deputy Commissioner/Assistant Commissioner and as such, it is incorrect on the part of the writ petitioners to take the ground that the Additional Director General, Goods and Services Tax Intelligence or Additional Director General, Goods and Services Tax or Additional Director General, Audit and the Deputy/Assistant Director, Goods and Services Tax Intelligence or Deputy/Assistant Director, Goods and Services Tax or Deputy/Assistant Director, Audit are having no power to initiate a proceeding under the Act, 2017.
This Court is of the view that the Additional Director General, Goods and Services Tax Intelligence or Additional Director General, Goods and Services Tax or Additional Director General, Audit and the Deputy/Assistant Director, Goods and Services Tax Intelligence or Deputy/Assistant Director, Goods and Services Tax or Deputy/Assistant Director, Audit are having jurisdiction to issue show cause notices.
This Court, therefore, is of the view that the writ petitioners are required to response to the said show cause notices for its consideration by the authority concerned, in accordance with law - Petition disposed off.
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2024 (10) TMI 286
Plant or Machinery - Input Tax Credit (ITC) - Constitutional validity of clauses (c) and (d) of sub-section (5) of Section 17 of the Central Goods and Services Tax Act, 2017 - Interpretation of the expression "plant or machinery" in Section 17(5)(d) of the CGST Act - HELD THAT:- There is no scope to give any meaning to clause (c) of Section 17(5) other than its plain and natural meaning. The expression “plant and machinery” has been specifically defined in the explanation of Section 17. Works contract service has been defined under the CGST Act. We cannot add anything to clause (c) or subtract anything from clause (c). ITC is a creation of legislature. Therefore, it can exclude specific categories of goods or services from ITC. Exclusion of the category of works contracts by clause (c) will not, per se, defeat the object of the CGST Act.
Whether the explanation that lays down the meaning of the expression “plant and machinery” in Section 17 will apply to the expression “plant or machinery” used in Section 17 (5)(d)? - HELD THAT:- The explanation to Section 17 defines “plant and machinery”. The explanation seeks to define the expression “plant and machinery” used in Chapter V and Chapter VI. In Chapter VI, the expression “plant and machinery” appears in several places, but the expression “plant or machinery” is found only in Section 17(5)(d). If the legislature intended to give the expression “plant or machinery” the same meaning as “plant and machinery” as defined in the explanation, the legislature would not have specifically used the expression “plant or machinery” in Section 17(5)(d). The legislature has made this distinction consciously. Therefore, the expression “plant and machinery” and “plant or machinery” cannot be given the same meaning. It may also be noted here that the expression ‘plant or machinery’ is used in dealing with a peculiar case of goods or services being received by a taxable person for the construction of an immovable property on his own account, even when such goods or services or both are used in the course of furtherance of business. Therefore, if the expression “plant or machinery” is given the same meaning as the expression “plant and machinery” as per the definition contained in the explanation to Section 17, violence done to the words used in the statute. While interpreting taxing statutes, it is not a function of the Court to supply the deficiencies.
What meaning should be given to the expression “plant or machinery”? - HELD THAT:- When the legislature uses the expression “plant and machinery,” only a plant will not be covered by the definition unless there is an element of machinery or vice versa. This expression cannot be read as “plant or machinery”. That is so clear from the explanation in Section 17, which says that plant and machinery means apparatus, equipment and machinery fixed to the earth by foundation or structural support that are used for making outward supply of goods or services or both. The expression includes such foundation and structural support fixed to the earth. However, the definition excludes land, buildings or any other civil structure.
The question whether a mall, warehouse or any building other than a hotel or a cinema theatre can be classified as a plant within the meaning of the expression “plant or machinery” used in Section 17(5)(d) is a factual question which has to be determined keeping in mind the business of the registered person and the role that building plays in the said business. If the construction of a building was essential for carrying out the activity of supplying services, such as renting or giving on lease or other transactions in respect of the building or a part thereof, which are covered by clauses (2) and (5) of Schedule II of the CGST Act, the building could be held to be a plant.
The writ petitions are rejected subject to the interpretation of clause (d) of sub-section (5) of Section 17 of the CGST Act.
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2024 (10) TMI 285
Condonation of delay in filing appeal - Jurisdiction and Authority in GST Proceedings - Power of CGST Authority / DGGI over State GST authorities - Attachment of Bank accounts without Determination of Liability - HELD THAT:- Delay condoned.
Issue notice to the respondent.
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2024 (10) TMI 284
Time limitation - Dismissal of appeal of petitioner on the ground of limitation - difference between the GSTR-1 and GSTR-9C - HELD THAT:- It is admitted fact that the appeal has been dismissed on the ground of limitation. Learned counsel for the petitioner has relied upon the notification dated 02.11.2023. On close scrutiny of the said notification, it is clear that if taxable person could not file appeal against the order passed by the Proper Officer on or before 31.03.2023 under sections 73 or 74 of the GST Act and if the appeal is preferred on or before 31.01.2024, the same will be considered on merit without taking recourse to the limitation. In the case in hand, the impugned order has been passed on 20.07.2023, much after the date mentioned in the aforesaid notification, i.e., 31.03.2023. Therefore, the said notification is of no aid to the petitioner.
In M/s Yadav Steels [2024 (2) TMI 1069 - ALLAHABAD HIGH COURT], it has been specifically held that delay in filing the appeal cannot be condoned beyond the prescribed period of limitation in the Act.
This Court does not find any merit in these writ petitions - Petition dismissed.
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2024 (10) TMI 283
Appeal of the petitioner has been dismissed on the ground of limitation by taking the date of order - impugned order dated 03.12.2021 was neither communicated, nor served upon the petitioner - HELD THAT:- The State shall specifically averred as to how and under what manner, the deeming service as per clauses (c) & (d) of sub-section (1) of section 169 can be said to be deemed service as per sub-section (2) of section 169 of the GST Act.
List thereafter - Matter requires consideration.
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2024 (10) TMI 282
Challenge to N/N. 09/2023 and N/N. 56 issued under Section 168A of the Central Goods and Services Tax Act, 2017 - demand for the period 01 July 2017 to 25 July 2018 in respect of non-payment of IGST on reinsurance services - HELD THAT:- Admittedly, the petitioner is stated to be a leading multinational insurance company which is also registered as a foreign reinsurance branch with the Insurance Regulatory and Development Authority of India [IRDAI]. It also holds a registration issued by the Ministry of Corporate Affairs, Government of India under the category of foreign companies.
Entry 36A thus came to include Serial No. 40 specifically. The issue which therefore remained for consideration was whether the aforesaid amendments would be liable to be viewed as curative, and thus being applicable to the period prior to 27 July 2018, the date from which the said notification was stated to be applicable and whether the same would clarify the position which would obtain prior thereto - The GST Council as well as the Union Government, thus appear to have taken a conscious decision to regularize the period between 01 July 2017 and 26 July 2018.
Undisputedly, the impugned order relates to that very period. While it is true that on 20 December 2023, when the impugned order came to be passed, these clarifications had not been rendered, undisputedly, the same would not sustain in light of the stand which has been taken by the respondents and is principally noticed.
The impugned order dated 20 December 2023 is quashed - petition allowed.
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9911796707
