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GST - Case Laws
Showing 661 to 680 of 13912 Records
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2024 (10) TMI 203
Seeking to restore the GST registration of the Petitioner under the trade name of Shri Salasar Balaji Steel - direction to Respondent authorities to confirm compliance by the Petitioner of the Show Cause Notice and take all necessary steps to restore the Petitioner’s GST status without any further delay - non-compliance with Rule 86B of CGST Rules/DGST Rules - HELD THAT:- In terms of Rule 86B of the CGST Rules/the DGST Rules, a registered taxpayer cannot use input tax credit (ITC) available in the electronic credit ledger for discharge of its entire liability towards the outward supplies. The taxpayer’s utilisation of ITC for the aforesaid purpose is confined to a maximum of 99% of its liability towards output supply. Accordingly, the petitioner deposited a sum of ₹80,000/-. The petitioner contends that with the deposit of the said amount, it has satisfied the requirement of paying at least 1% of its liability on outward supplies.
Insofar as the payment of 1% of liability on outward supplies is concerned, the petitioner would ensure that it deposits the amount under the relevant form or furnishes the necessary forms for duly recording the payment of tax against its liability within a period of two working days from date. Insofar as the allegation that the petitioner’s name is included in the list of fake firms is concerned, there is no allegation to the said effect in the SCN. Thus, clearly, the same cannot be a ground for continuing to suspend the petitioner’s GST registration.
It is necessary to bear in mind that suspension of a taxpayer’s GST registration has wide adverse ramifications for the business of the taxpayer. Thus, such an action can be taken only after due consideration. Since, the only allegation in the SCN is that the petitioner has not complied with Rule 86B of the CGST Rules/DGST Rules, which in effect stands remedied by deposit of the amount of ₹80,000/- with the Revenue, it is considered apposite to allow the present petition and the respondents is directed to forthwith restore the petitioner’s GST registration.
Petition disposed off.
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2024 (10) TMI 202
Challenge to order passed by the respondent on the ground that the order was passed without affording an opportunity and in violation of principles of natural justice - mismatch of input tax claim under Section 73(5) of TNGST Act - HELD THAT:- In the instant case, it is seen that notice was issued by the respondent but however, the case was handled by some consultant who did not attend the personal hearing. On going through the impugned order, it is seen that a total tax liability of Rs.19.95 lakhs has been imposed against the petitioner. The petitioner has come up with a clear case that there are sufficient materials/documents to substantiate the defense of the petitioner to the effect that there was no mismatch of the input tax claim between GSTR2A and GSTR3B.
This Court had an occasion to deal with a similar issue in WP.No.26477 of 2024 dated 12.09.2024. This Court wanted to afford an opportunity to the petitioner therein by putting the petitioner on terms. In order to maintain consistency, a similar order can be passed in this writ petition also - matter is remanded back to the file of the respondent for fresh consideration on condition that the petitioner will pay 10% of the disputed tax amount to the respondent within a period of four weeks from today.
Petition allowed by way of remand.
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2024 (10) TMI 201
Bar on initiating penalty proceedings under CGST Act after proceedings initiated by State GST Authorities.
Karnataka State GST Authorities initiated proceedings by invoking Section 70 of the KGST Act against the petitioner, which ultimately culminated in the adjudication order dated 09.11.2022 under Section 73 (1) of the KGST Act - In the meanwhile, respondent Nos. 1 and 2/CGST Authorities also initiated penalty proceedings under Section 122 of the CGST Act in relation to the very same subject matter comprising of the transactions between the petitioner and one M/s. Crystal Hardware.
HELD THAT:- A perusal of the material on record in particular Annexure-C dated 15.09.2022 issued by CGST authorities and adjudication order dated 09.11.2022 at Annexure-D is sufficient to come to the conclusion that the both relates to the same subject matter in relation to the transaction between petitioner and M/s Crystal Hardware.
Once proceedings are initiated under Sections 73 or 74, penalty proceedings under Section 122 are deemed to have been concluded and on this ground also, the impugned Show Cause Notice which purports under Section 122 of the CGST Act is clearly illegal and arbitrary and without jurisdiction or authority of law and contrary to the aforesaid provisions of law, warranting interference by this Court.
The impugned show cause notice dated 15.09.2022 issued by respondent No.1 at Annexure-C is hereby quashed - Petition allowed.
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2024 (10) TMI 200
Levy of interest on a petitioner for belatedly filing returns under the Tamil Nadu Goods and Service Tax Act, 2017 - main ground that was urged by the learned counsel for the petitioner is that they did not participate in the adjudication proceedings because all the notices were only uploaded in the GST portal - HELD THAT:- In the instant case, it is seen that notice was issued by the respondent. However, the petitioner did not receive the same. On going through the impugned order, it is seen that a total liability of Rs. 6,24,779/- towards interest has been imposed against the petitioner for filing the returns belatedly. The petitioner has come up with a clear case that without affording sufficient opportunity, the impugned order came to be passed.
The impugned order passed by the respondent in Reference No.ZD331123185891E dated 29.11.2023 is hereby set aside. The matter is remanded back to the respondent for a fresh consideration on condition that the petitioner shall pay 10% of the total demand to the respondent within a period of four weeks from today - Petition allowed by way of remand.
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2024 (10) TMI 199
Jurisdiction to issue SCN - excess of the power conferred upon Respondent-authority regarding scrutiny of returns, as provided under Section 61 of the JGST Act - HELD THAT:- The issue decided in JINDAL STONE WORKS VERSUS STATE OF JHARKHAND, JOINT COMMISSIONER OF STATE TAX, SAHIBGANJ, ASSISTANT COMMISSIONER OF STATE TAX, SAHIBGANJ CIRCLE, STATE TAX OFFICER, SAHIBGANJ CIRCLE. [2024 (9) TMI 1579 - JHARKHAND HIGH COURT] where it was held that 'this writ petition is disposed of by giving liberty to the petitioner to explain the reason which has been sought in the second show-cause, within two weeks and the authority concerned will consider the same in accordance with law and depending upon the conclusion, follow-up action be taken in view of the mandate of Section 61 of the JGST Act.'
The instant writ petition is disposed of.
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2024 (10) TMI 198
Challenge to impugned proceedings on the ground of being violation of principles of natural justice - discrepancies between GSTR-1 and GSTR-7 which were treated as suppression of outward tax supply - HELD THAT:- The impugned order dated 19.06.2023 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. If the above deposit is not paid or the objections not filed within the stipulated period, i.e., two weeks and four weeks from the date of receipt of a copy of this order respectively, the impugned order of assessment shall stand revived.
Petition disposed off.
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2024 (10) TMI 197
Cancellation of GST registration based on SCN - petitioner failed to submit his reply to the show cause notice - notice provided only a short/small period of one day to submit his response and for personal appearance - HELD THAT:- Perusal of the impugned show cause notice would indicate that except stating that the GST registration of the petitioner had been obtained by fraud, willful misstatement or suppression of fact, necessary particulars, details etc. in this regard are not forthcoming in the impugned show cause notice. Further the show cause notice having been issued on 2.2.2024, the petitioner has been granted extremely a short/small period of time upto only 11.00 a.m. on the very next day i.e., 3.2.2024 to not only submit his reply and also appear for personal hearing in the matter.
Under these circumstances, the impugned order at Annexure-E dated 16.2.2024 cancelling GST registration of the petitioner is violative of principles of natural justice warranting interference by this Court in the present petition.
A perusal of the impugned order at Annexure-J dated 17.4.2024 rejecting the revocation application submitted by the petitioner will indicate that new grounds and reasons have been assigned for rejecting the revocation application which were not found in the original cancellation order - Under these circumstances, the impugned order Annexure-J dated 17.4.2024 putting forth various grounds which were not forthcoming in the earlier cancellation order would also vitiate the impugned order Annexure-J which deserves to be set aside by reserving liberty in favour of the respondent to issue fresh show cause notice and provide sufficient and reasonable opportunity to the petitioner and proceed further in accordance with law.
The impugned orders at Annexures D, E and J are hereby quashed - Respondent is directed to reinstate/restore GST registration of the petitioner immediately upon the petitioner paying tax and filing returns - Petition allowed.
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2024 (10) TMI 196
Violation of principle of natural justice - client was not notified with date of personal hearing - HELD THAT:- The writ petition is disposed of as covered in ALFA CITYINFRA PRIVATE LIMITED VERSUS CHIEF COMMISSIONER OF CT AND GST, ODISHA, CUTTACK AND OTHERS. [2024 (7) TMI 1527 - ORISSA HIGH COURT]. Orders passed consequent to said show-cause notice are set aside and quashed. Petitioner be notified date of personal hearing, in the authority proceeding pursuant to the show cause notice dated 25th November, 2020.
The writ petition is disposed of as covered by said order - Orders passed consequent to said show-cause notice are set aside and quashed. Petitioner be notified date of personal hearing, in the authority proceeding pursuant to the show cause notice dated 25th November, 2020.
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2024 (10) TMI 195
Scope of Advance Ruling application - Interpretation of provisions of Central Goods and Services Tax Act, 2017 and West Bengal Goods and Services Tax Act, 2017 - Classification of goods and services for tax purposes - HELD THAT:- In the instant case, questions raised by the applicant vide application made in FORM GST ARA-01 are found not to be covered under any of the clauses of sub-section (2) of section 97 of the GST Act.
The applicant has selected clause (b) of sub section (2) of section 97 of the GST Act in serial no 13 of the application. However, in course of hearing, the authorized representatives of the applicant have failed to refer any such notification in respect of which the option was selected.
The applicant has not raised any questions which are found to be covered under any of the clauses of sub-section (2) of section 97 of the GST Act. The applicant has been provided reasonable opportunity to counter the aforesaid observations - there are no reason to accept the instant application made by the applicant for pronouncement of ruling. The application is, therefore, rejected.
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2024 (10) TMI 194
E-commerce Operator as defined in sec 2 (45) of the GST Act or not - service provider or not u/s 9 (5) of the GST Act read with notification no. 17/2021-Central tax(rate) dated 18th November, 2021 for the Driver services provided by the Driver to the Customer connected by “Yatri Sathi Mobile App” - liability of applicant to collect and pay GST on the services supplied by the Drivers (person who subscribed the app) to the Customers (person who subscribed the app) connected through the App considering the Applicant as service provider u/s 9 (5) of the GST Act read with notification no. 17/2021-Central Tax (Rate) dated 18th November, 2021.
Whether the applicant falls under the purview of the E-commerce Operator as defined in section 2 (45) of the GST Act? - HELD THAT:- It appears that any person who is an owner or operator of digital or electronic facility or platform or one who manages such platform for supply of goods or services or both, including digital products i.e. a platform which in common parlance is said to be an electronic commerce platform can be said to be an Electronic Commerce Operator. Admittedly, in the instant case, the applicant is the owner of a digital platform namely the Yatri Sathi App and provides supply of services to the drivers by way of allowing the drivers to use the digital platform against a consideration. The applicant thus fits into the definition and qualifies to be an Electronic Commerce Operator in terms of section 2 (45) of the GST Act.
Whether the applicant shall be deemed to be the service provider under section 9 (5) of the GST Act read with notification no. 17/2021-Central Tax (Rate) dated 18th November, 2021 for the Driver services provided by the Driver to the Customer connected by “Yatri Sathi Mobile App”? - HELD THAT:- The first two arms of the conditions as laid down in Section 9 (5) of the GST Act get satisfied, i.e. the instant services are notified by the Government and the supply is intra-state in nature. Now, this issue narrows down to the focal point as to whether this service is supplied through (emphasis added) the electronic commerce operator or not. The word “through” as referred to in Section 9 (5) of the GST Act is not explained or defined in the relevant context. Hence that requires to be discussed in detail.
Whether the applicant shall be liable to collect and pay GST on the services supplied by the Drivers (person who subscribed the app) to the Customers (person who subscribed the app) connected through the App? - HELD THAT:- Even though the applicant qualifies to be an electronic commerce operator, the supply of services is not made through him but such supply is independent in nature. Therefore, the applicant, though qualifies the definition of being an e-commerce operator, does not satisfy the conditions of Section 9 (5) of the GST Act for discharging the tax liability by an electronic commerce operator and hence, is not the person liable for discharge of tax liability under section 9 (5) of the GST Act.
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2024 (10) TMI 193
Classification of goods - Baby Carriers with Hip seat - to be covered by HSN code 63079099 or not - HELD THAT:- From a bare reading of the Chapter Heading 6307, it can be derived that “other made up articles, including dress pattern’ is wide enough to cover the articles like Baby carriage with hip seat.
In COMMISSIONER OF CUSTOMS, ACC, MUMBAI VERSUS RUBY IMPEX LTD. [1999 (12) TMI 271 - CEGAT, MUMBAI], the appellant imported car covers, made of polyester which were used to cover a car when it was parked for long periods; e.g., overnight to protect its surface from the elements. The importer was of the view that goods so imported would be classified under Heading 8708.99 being parts and accessories of motor vehicle. The department did not accept this classification and took a view that the goods were more appropriately classifiable as made up articles of textiles under Heading 6307.90. The Hon’ble Tribunal held that car covers are not part of motor vehicles and are classifiable as made up articles of textiles under sub-heading 6307.90 of Customs Tariff Act, 1975.
Similar view may be taken for the instant case and the item baby carrier with seats, made of textile fabric, may be classified under sub-heading 6307.90.
Supply of Baby Carrier with hip seat as manufactured by the applicant shall be covered under HSN 6307 90 and would attract tax @ 5% when sale value does not exceed Rs. 1,000/- per piece and @12% when sale value exceeds Rs. 1,000/- per piece.
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2024 (10) TMI 192
Classification of service - Outdoor Catering service along with Renting of Premise or not - composite supply of catering service within the club premise along with renting of premise - applicable rate of GST on the catering service along with renting of premise - HELD THAT:- Where the applicant provides renting of premises along with supply of food at any event, such supply would attract tax @ 5% with the restriction of input tax credit and subject to the condition that the Room Tariff of the club does not exceed Rs. 7,500/- per unit per day or equivalent. Clarification given in the CBIC Circular 27/01/2018-GST dated 04.01.2018 as referred by the applicant is to be followed in order to determine whether the applicant is located in ‘specified premises’ or the supply is provided at ‘specified premises’.
Composite supply of catering services within the club premises along with renting of premises falls under ‘outdoor catering service together with renting of premises” arranged at premises other than 'specified premises' - GST is payable against whole consideration of the composite supply @ 5% without ITC subject to condition imposed.
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2024 (10) TMI 191
Interest charges by HDFC Bank Ltd - Inward supply from registered suppliers for calculating threshold of 80% or not - HDFC Bank Ltd is a registered company - HELD THAT:- Services by way of extending deposits, loans or advances in so far as the consideration is represented by way of interest or discount (other than interest involved in credit card services) is exempted from payment of tax vide serial number 27 of the Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, as amended. So, services by way of extending loans by HDFC Bank to the applicant against consideration payable in the form of interest is an inward supply of exempted services of the applicant. Such services, therefore, would be a part of total inward supply for the purpose of computing the threshold limit of 80% and since HDFC Bank is a registered person under the GST Act, the supply admittedly has been made from a registered person.
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2024 (10) TMI 136
Demand of penalty at the higher rate being 100 percent of the value of the goods under Section 129(1)(b) of the U.P. G.S.T. Act, 2017 - petitioner is opposed to quantum of penalty and not at the stage of detention of goods - HELD THAT:- On query made, learned counsel for the revenue has made a fair statement, it cannot be doubted, the petitioner is the bonafide owner of the goods.
The penalty order is modified to the extent penalty imposed. Quantum is reduced in terms of provisions of Section 129(1)(a) of the Act i.e. equal to twice the amount of tax imposed on the value of the goods, as estimated by the revenue authorities - Petition disposed off.
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2024 (10) TMI 135
Cancellation of GST registration of the Petitioner-Company under the Goa GST Act - order does not give any reason whatsoever for cancellation of the GST registration of the Petitioner - violation of principles of natural justice - HELD THAT:- The impugned orders cancelling the registration of the Petitioner-Company cannot be sustained, even for a minute for the simple reason that apart from just mentioning the show cause notice, the reply submitted by the Petitioner-Company to the show cause notice and also further stating that the officer concerned had examined the reply, no other reason has been given in the impugned order dated 07/10/2022. Such an approach adopted by the Assistant Tax Officer while passing the impugned order, cannot be appreciated.
Even while exercising the administrative functions, any officer or an authority is under legal obligation to give some reasons for arriving at a particular conclusion in a situation where the party concerned is likely to suffer adversely by the decision so taken by the authority or the officer - the Assistant Tax Officer has to pass orders exercising certain quasi-judicial functions under various tax laws, and hence, it is expected from him, even in normal course, to always pass a reasoned and speaking order. As it is stated, the reasons are the soul of a decision or order and in absence thereof, the order or the decision cannot be justified.
The impugned orders are quashed - petition allowed.
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2024 (10) TMI 134
Condonation of delay in filing the appeal - invocation of extra ordinary jurisdiction of this court - HELD THAT:- It is not in dispute that after issuance of show cause notice, impugned order dated 22.03.2022 was passed against which, the appeal should have been preferred within limitation, but the appeal has been preferred beyond the limitation - Further, before this Court also, petitioner has failed to give any good ground for condonation of delay, therefore, this Court, under extra ordinary jurisdiction, cannot interfere with the impugned orders.
The Apex Court in the case of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT] has specifically held 'there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period.'
Thus, no interference is called for in the impugned orders - petition dismissed.
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2024 (10) TMI 133
Cancellation of GST registration of petitioner - non-filing of returns u/s 39 of the Central Goods and Services Tax Act, 2017 - cancellation of registration without assigning any reason - violation of principles of natural justice - HELD THAT:-A perusal of the impugned order dated 12.09.2023 would show that the said order is passed by a quasi-judicial authority. The effect of the said order would be that in absence of a registration, the Petitioner cannot carry out his business. Therefore, the effect of the said impugned order would entail civil consequences.
In the backdrop of the above, if this Court peruses the order, it is shocking that the Respondent No. 3 had cancelled the registration without assigning any reason. This clearly shows a total non-application of mind. Accordingly, this Court therefore sets aside the said impugned order dated 12.09.2023 thereby restoring the status back to the date on which the Show Cause notice dated 08.08.2023 was issued.
Petition disposed off.
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2024 (10) TMI 132
Refund of unutilised Input Tax Credit for the month of March 2018 - barred by time limitation or not - HELD THAT:- In terms of the amendment in the explanation to Rule 54, relevant date for filing the refund application is provided to be two years from the due date of furnishing GSTR 3B returns. In other words, the last date for filing refund application in the month of March 2018 would be 20.04.2020 being two years from the due date of furnishing GSTR 3B returns.
In the present case, the refund application was filed on 27.05.2020, however in view of the above notification, in particular clause (iii) thereof, the period from 01.03.2020 to 28.02.2022 was excluded from the limitation period. The petitioner would be entitled to the benefit of the same.
The competent authority is directed to reconsider the claim of refund of the petitioner by applying its mind and pass appropriate order following the Circular dated 05.07.2022 - Petition disposed off.
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2024 (10) TMI 131
Benefit of N/N. 11/2017-Central Tax dated 28-06-2017 where the construction of building for Government entities is entitled to a lower rate of tax - It is submitted that the notification has not been taken into consideration - violation of principles of natural justice - HELD THAT:- The petitioner may approach the authority which issued Ext.P3 order by filing an application for rectification under Section 161 of the CGST Act. Since the writ petition was pending in this court from 20-05-2024, it is directed that if the petitioner where to file such rectification petition if so advised within a period of 10 days from the date of receipt of a certified copy of this judgment, the period from the date of Ext.P3 till the date of filing the application will stand excluded for the purpose of determining any period of limitation within which the application under Section 161 of the CGST Act had to be filed on behalf of the petitioner.
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2024 (10) TMI 130
Challenge to SCN issued u/s 74 of the Central Goods and Services Tax Act, 2017 - respondents submits that the petitioner has since been carrying on the business of her deceased husband and therefore, in terms of Section 93 of the CGST Act, the respondents are entitled to initiate the proceedings for recovery of any amount due under the relevant statute from the said concern - HELD THAT:- It is settled law that the identity of the sole proprietorship concern is not different from that of a sole proprietor. In the present case, a sole proprietor of the concern – M/s S.K. Gupta & Co. – Mr Surender Kumar Gupta, has since expired and therefore, it is relevant in fact, that the impugned SCN has been issued to a non-existent person.
Undeniably, in a case where the person is liable to pay tax, interest and/or penalty, has expired and the business is carried on by the taxpayer’s legal representative or any other person after his demise, the said legal representative or such other person is liable to pay the due, interest or penalty as payable by the deceased taxpayer. However, the show cause notice for recovery of any such amount is required to be issued to the legal representative or such other person, who is carrying on the business of the deceased taxpayer.
In the present case, impugned SCN has not been issued to the legal representative of the deceased taxpayer but to the deceased taxpayer.
In UNNIKRISHNAN R, SUJATHA R, NALINAKSHI AMMA VERSUS THE UNION OF INDIA, THE COMMISSIONER OF COMMERCIAL TAXES, THE STATE TAX OFFICER, KUZHITHURAI [2024 (7) TMI 606 - MADRAS HIGH COURT] the Madras High Court has held 'The order that has been passed against the dead person is non-est in law. If the petitioner is carrying on the business of the deceased person, then, the remedy is available to the Department to proceed against the petitioner under Section 93 of the TNGST Act, 2017. It appears to be that the petitioner is not carrying on the business of the deceased person.'
The impugned SCN is set aside. It is clarified that, this order will not preclude the respondents from issuing a notice to the legal representative or any other person, if it is found that the business of the deceased taxpayer is being carried on by the deceased taxpayer’s legal representative or such other person - Petition disposed off.
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