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GST - Case Laws
Showing 701 to 720 of 13912 Records
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2024 (10) TMI 39
Cancellation of GST registration - violation of Rule 86B r.w. Rule 21 of CGST Rules, 2017 - appeal dismissed as barred by limitation - HELD THAT:- A perusal of the impugned Show Cause Notice at Annexure-C and the impugned order at Annexure-D will indicate that the sole ground on which GST registration of the petitioner has been cancelled is by coming to the conclusion that petitioner had violated Rule 86B of the CGST Rules. However, details, particulars etc, as regards violation are conspicuously absent and have not been mentioned either in the Show Cause Notice or in the impugned order.
So also necessary enquiry in this regard has not been conducted by respondent No. 1 before passing the impugned order and consequently, in the absence of material particulars/details and necessary enquiry by respondent No. 1 as regards alleged violation of the petitioner of Rule 86B having not been conducted, it is opined that the impugned order at Annexure-D dated 07.09.2022 deserves to be quashed and direction be issued to respondent to reinstate/restore the GST registration by reserving liberty in favour of respondent to take necessary action in accordance with law.
Insofar as dismissal of the appeal filed by the petitioner as barred by limitation is concerned, since the said appeal was filed beyond the maximum period of four months (3+1 months), the said appeal is no appeal in the eye of law and since the appeal has been dismissed summarily as barred by limitation, the impugned order would not merge with the Appellate Authority order. Consequently, dismissal of the Appellate Authority order would not come in the way of this Court in entertaining the petition by exercising its jurisdiction under Article 226 of the Constitution of India.
Petition allowed.
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2024 (9) TMI 1650
Violation of principles of natural justice - ex-parte adjudication proceedings against the petitioner - petitioner was not given any report of the SIB which the petitioner has specific plea requested by his letter - HELD THAT:- Since relevant documents for replying to the show cause notice were not supplied to the petitioner he was handicapped and prejudiced. It has been stated in the impugned order that the petitioner was informed by letter dated 11.5.2024 on the portal to collect the copies of the SIB report from the office of opposite party no.2 and to submit his reply by 10.6.2024, however, such letter dated 11.5.2024 was posted at wrong section of portal and as such it could not be seen by the petitioner.
The petitioner having been denied opportunity of hearing the order impugned are vitiated and therefore liable to be set aside.
This petition is disposed of with the liberty to the petitioner to file his appeal within 10 days from today. If such an appeal is filed the same shall be considered on its merits and decided as expeditiously as possible.
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2024 (9) TMI 1648
Constitutional validity of section 16(4) of CGST Act/SGST Act 2017 - Petition seeking declaration of certain provisions as illegal and discriminatory - Blocking of credit balance - HELD THAT:- In view of the amendment by inserting Section 16(5) to the CGST / KGST Act, the present petition deserves to be disposed of relegating the parties to the original authority to implement and give effect to the said provisions after providing sufficient and reasonable opportunity to the petitioner and hearing them and proceed further in accordance with law and by issuing certain directions in this regard.
The parties are relegated to the stage of show cause notice at Annexure-C dated 13.02.2020 issued by the respondent(s) and the respondents are directed to give effect to and implement the amended provisions contained in Section 118 of “The Finance (No.2) Act, 2024” relating to insertion of Section 16(5) to the CGST Act / KGST Act by providing sufficient and reasonable opportunity and hear the petitioner and proceed further in accordance with law within a period of one month from the date of receipt of a copy of this order.
The petition is disposed off.
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2024 (9) TMI 1644
Validity of SCN - carry forward of transitional credit - It has been argued on behalf of the petitioner that for the same amount of Input Tax Credit availed by the petitioner, once the proceedings under Section 73 have been dropped in favour of the petitioner, same cannot be reopened under Section 74 of the CGST Act by simply stating that the petitioner had availed excessive Input Tax Credit - HELD THAT:- The impugned Show Cause Notice does not make even a whisper of the fact that petitioner has wrongly availed or utilized Input Tax Credit due to any fraud, or wilful mis-statement or suppression of facts to evade tax therefore, the proceedings initiated against the petitioner u/s 74 of the CGST Act are without jurisdiction for the lack of basic ingredients required under the said clause. So far as the argument advanced by the learned counsel appearing for the respondents that the writ petition against the Show Cause Notice is not maintainable, is concerned, we find that it is consistent view of the Hon’ble Supreme Court that if the Show Cause Notice is without jurisdiction then the same can be challenged by filing writ petition before the High Court under Artilce 226 of the Constitution of India.
It is not found that the basic ingredients required for initiating proceedings under Section 74 of the CGST Act are present in the impugned Show Cause Notice dated 30.12.2023. Therefore the entire exercise including the Show Cause Notice is without jurisdiction and thus this writ petition under Article 226 of the Constitution of India is maintainable.
The impugned Show Cause Notice dated 03.08.2024 in its present form lacks basic ingredients to proceed in the matter under Section 74 of the CGST Act. Therefore, the impugned Show Cause Notice dated 03.08.2024 and the entire exercise initiated pursuant thereto is absolutely without jurisdiction and is liable to be quashed.
Petition allowed.
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2024 (9) TMI 1643
Maintainability of petition - availability of remedy of appeal u/s 107 of the Act - violation of Section 75(4) of UPGST Act - denial of opportunity of personal hearing - violation of principles of natural justice - HELD THAT:- It is basic to procedural law under taxing statutes that opportunity of personal hearing must be provided to an assessee before any assessment/adjudication order is passed against him. Thus, it is strange and wholly unacceptable merely because the substantive law has changed, the revenue authorities have changed their approach and are failing to observe the mandatory requirement of procedural law. They have thus denied opportunity of hearing to the assessee.
It transpires from the record, neither the adjudicating authority issued any further notice to the petitioner to show cause or to participate in the oral hearing, nor he granted any opportunity of personal hearing to the petitioner.
Thus, before any adverse order passed in an adjudication proceeding, personal hearing must be offered to the noticee. If the noticee chooses to waive that right, occasion may arise with the adjudicating authority, (in those facts), to proceed to deal with the case on merits, ex-parte. Also, another situation may exist where even after grant of such opportunity of personal hearing, the noticee fails to avail the same. Leaving such situations apart, we cannot allow a practice to arise or exist where opportunity of personal hearing may be denied to a person facing adjudication proceedings.
In the present case, show cause notice has been issued in the year 2019 and the impugned order has been passed in the year 2024. Inordinate delay of five years in passing the order impugned is clearly a manifestation and violation of principles of natural justice.
The impugned order cannot be sustained in the eyes of law. It has been passed in gross violation of fundamental principles of natural justice - Petition allowed.
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2024 (9) TMI 1642
Direction to respondents to reimburse the extra GST amount paid along with interest - grievance of the petitioner is that despite the aforesaid enhancement from 01.01.2022, the respondents are paying the running bills with 12% GST and the petitioner is paying 18% GST - HELD THAT:- 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 (9) TMI 1641
Action on the part of the respondent authorities in not reflecting the payments so made by the petitioners pursuant to the final demands raised - Time limitation - HELD THAT:- Section 129 (5) of the State Act only stipulates that upon payment of the entire amount as referred to in Sub-section (1) of Section 129, all proceedings in respect to the notice specified in Sub-section (3) shall be deemed to be concluded. The said provision therefore shows that upon payment of the amount, the proceedings in respect of the notice specified in Sub-section (3) shall be deemed to be concluded. The said provision would in the opinion of this Court, would apply only in circumstances, when pursuant to a Show Cause Notice issued under Section 129 (3), the entire amount so stated therein is paid. In contrast, it would be relevant to observe that Section 129 (3) also refer to an order to be passed within 7 days from the date of service of such notice. However, Section 129 (5) only refers to the notice and not to the order.
In that view of the matter, this Court is of the opinion that right to file appeal by the petitioners cannot be taken away merely because the petitioners have paid the entire amount demanded in the orders passed under Section 129(3) of the State Act.
This Court is of the opinion that on account of the fault of the respondent authorities, the petitioners were not able to file appeals against the respective orders dated 19.10.2023 and 12.09.2023 passed under Section 129 (3) of the State Act - Petition disposed off.
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2024 (9) TMI 1640
Revocation of suspension of the petitioner’s Goods and Services Tax (GST) registration - reasons set out in the impugned SCN are not intelligible - principles of natural justice - HELD THAT:- The copy of the reply filed by the petitioner is annexed to the present petition. It indicates that no supporting documents have been furnished by the petitioner.
It is considered apposite to permit the petitioner to furnish all such documents as are considered relevant to establish that he was functioning at his principal place of business, within the period of one week from date. The respondents are directed to consider the same and pass an appropriate order after affording the petitioner an opportunity to be heard.
Petition disposed off.
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2024 (9) TMI 1639
Cancellation of registration of petitioner - appeal was dismissed on the ground of limitation - challenge to order of cancellation of registration on the ground of not providing an opportunity of hearing as well as such order was passed without assigning any reason for cancellation of the registration of the petitioner - HELD THAT:- The Coordinate Bench of this Court in case of M/s. Aggrawal Dyeing & Printing vs. State of Gujarat [2022 (4) TMI 864 - GUJARAT HIGH COURT] has held that 'The procedural aspects should be looked into by the authority concerned very scrupulously and deligently. Why unnecessarily give any dealer a chance to make a complaint before this Court when it could have been easily avoided by the department.'
In the present matter, order of cancellation of registration is passed without giving any reason by the respondent authorities, and appeals filed by the petitioners under Section 107 of the GST Act are also dismissed.
As the Appellate Authority has dismissed the appeals of the petitioner, the respondent authorities will not be able to exercise the revisional power under section 108 of the GST Act. Therefore, the impugned order passed by the Appellate Authority as well as the order of cancellation of registration are required to be quashed and set aside - the matter is remanded back to the Assessing Officer at the show cause notice stage.
This petition is partly allowed by quashing and setting aside the impugned order passed by the Appellate Authority as well as order of cancellation of registration and the matter is remanded to the Assessing Officer at show-cause notice stage, however, the registration number of the petitioner shall remain suspended till such show cause notice is disposed of - petition disposed off by way of remand.
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2024 (9) TMI 1638
Refund of accumulated input tax credit (ITC) - zero rated supply - Mismatch in ITC as per GSTR-2B and GSTR-3B - HELD THAT:- Although the appellate authority has faulted the adjudicating authority for not carefully examining the reconciliation statement and passing a refund order to the extent of ₹12,04,443/- without sufficient discussion, the appellate authority has also not examined the question of reconciliation. There is neither any discussion nor any finding regarding the reconciliation statement furnished by the petitioner.
In terms of Section 107 (11) of the CGST Act, the appellate authority is required to decide the question in issue and cannot remand the matter to the adjudicating authority. In the present case, although, the appellate authority has faulted the adjudicating authority in not addressing the question of reconciliation statement, the appellate authority has also not addressed the same.
It is considered apposite to set aside the impugned order and remand the matter to the appellate authority for consideration afresh - petition disposed off by way of remand.
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2024 (9) TMI 1637
Seeking cancellation of GST registration of the petitioner - petitioner had discontinued its business - HELD THAT:- It is considered apposite to direct the proper officer to process the petitioner’s application as expeditiously as possible.
Petition disposed off.
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2024 (9) TMI 1636
Claim of wrongful refund - willful mis-declaration of the available ITC - one single order for two Financial Years - jurisdiction to issue SCN - it is contended that the authority who has issued the Show Cause Notice could only pass the impugned order - time limitation - HELD THAT:- The parameters under which this Court ought to entertain the writ petition are not satisfied. Be that as it may, it is also pertinent to take note of that this Court is not exercising its jurisdiction on the ground that the Petitioners herein have an adequate, alternative and efficacious remedy provided under Section 107 of the Assam GST Act, 2017. It is however apposite to mention that in order that the remedy which is available to the Petitioners is an efficacious and adequate remedy, the Petitioners should also be able to raise all the issues which the Petitioners could have raised in the instant proceedings.
This Court is not inclined to entertain the instant writ petition insofar as the challenge to the impugned order dated 12.08.2024 on the ground of availability of alternative and efficacious remedy. However, the Petitioner herein would be at liberty to file an appeal under Section 107 of the AGST Act, 2017.
This Court had perused the materials on record and there is no mention as to how much amount/amounts lying in the bank accounts of the Petitioner No. 2 and his relatives which have been frozen. There is also no mention as to whether the Petitioners have other bank account(s). It is also clear from the mandate of Section 107 (6) (b) of the Act of 2017 that the pre-deposit of 10% of the tax amount is required to be deposited and there is no provision for waiver by the Appellate Authority. It is well settled that the amount to be paid as pre-deposit is for filing or entertaining the Appeal and not for realization of the tax amount.
In the account(s) which have been frozen as stated in the Show Cause Notice dated 09.04.2024 and if the said accounts are still unoperational on account of the freeze, the Appellate Authority is directed to permit the filing of the Appeal(s) as well as to entertain the Appeal(s) without any predeposit subject to the accounts which have been frozen (the details mentioned in the Show Cause Notice dated 09.04.2024), has/have deposit(s) equivalent or more than the amount required to be deposited in terms with Section 107 (6) (b) of the Act of 2017.
Petition disposed off.
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2024 (9) TMI 1635
Demand in respect of ITC to be reversed on non-business transactions and exempt supplies - HELD THAT:- Respondent no. 1 cannot adjudicate a demand, which is also the subject matter of other proceedings. Since, the period covered under the impugned order is also subsumed in the show cause notice issued by the DGGI, both the proceedings cannot be carried on simultaneously.
The impugned demand is required to be set aside - Petition allowed.
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2024 (9) TMI 1634
Direction to process the refund applications filed by the petitioner u/s 54 of the Central Goods and Services Tax Act, 2017 (CGST Act)/ Delhi Goods and Services Tax Act, 2017 (DGST Act) - prayer for directions be issued for grant of provisional refund in terms of Section 54 (6) of the CGST/DGST.
The respondents states on instructions that the petitioner’s applications are lodged. They will be processed within a period of one month from date and appropriate orders would be passed.
HELD THAT:- The respondents are bound down to the said statement.
Needless to state that if the respondents propose to reject these applications filed by the petitioner, the respondents shall indicate the reasons for doing so and pass an order after affording the petitioner an opportunity to be heard.
Petition disposed off.
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2024 (9) TMI 1633
Seeking direction to respondents to expeditiously establish the GST Appellate Tribunal in the State of Kerala in accordance with the provisions of Section 112 of the CGST Act 2017 forthwith - Revenue submits that the steps have already been taken to establish the GST Appellate Tribunal and the selection process is going on - HELD THAT:- This submission is recorded.
Rectification of Section 169 of the CGST Act 2017 by correcting the erroneous usage of the word “or” with the correct word “and”, thereby such amendment will mandate assessing officers to serve notices and orders through at least minimum of three alternative modes of service, ensuring compliance with the principles of natural justice and providing an opportunity for affected parties to be heard - HELD THAT:- This Court cannot grant such a relief in the public interest litigation filed by the petitioners. The individual grievance of the person will have to be considered in appropriate manner in an individual litigation to be initiated by such person - the prayer is declined.
In the light of the fact that the process has already been initiated to establish the GST Appellate Tribunal, it is ordered that entire selection process shall be completed within a period of four months.
The writ petition is disposed of.
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2024 (9) TMI 1584
Seeking grant of bail - creation of fake firms for availing and utilizing the ITC - offence u/s 132(1)(b), 132(1)(c), and 132(5) of the CGST Act, 2017 - HELD THAT:- From perusal of the complaint and also the prosecution report filed in this case, it is found that the allegations made against the petitioner are based on the statement of witnesses. In regard to creating the fake firms, availing and utilizing the ITC to the tune of Rs.54.33 crore, no documentary evidence has been adduced on behalf of the prosecution in support of the allegations made in the complaint and prosecution report as well against the petitioner. Although, on behalf of the prosecution in Annexure-B of counter affidavit in list of documents/ RUD is given, wherein at Sr. No.37 i.e. RUD-37, details summaries of GSTR-3B of fake firms is mentioned; yet any document relied upon has not been made annexure in proof of same. The petitioner has been languishing in jail since 25.06.2024 and the offence alleged against the petitioner is punishable for five years.
Taking into consideration that the trial of this case is not likely to be concluded in near future and also the fact that the prosecution has not shown any apprehension of tampering the evidence or any flight risk of the petitioner - the bail application is allowed.
Let the petitioner be released on bail on furnishing bail bond of Rs.1,00,000/-(Rupees One Lakh) with two sureties of the like amount to the satisfaction of the court concerned in aforesaid case with fulfilment of conditions imposed - bail application allowed.
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2024 (9) TMI 1583
Violation of the provision under Section 129 (3) of the Central Goods and Services Act, 2017 - time limitation - specific contention raised by the petitioner is on Annexure P/2, a circular issued under Section 68 of the C.G.S.T Act read with Rule 138 of the C.G.S.T Rules, 2017 - HELD THAT:- It is specifically directed, as per Paragraph No. 2 (g), that an order of detention in FORM GST MOV-06 and a notice in FORM GST MOV-07 has to be in accordance with sub-section (3) of Section 129 of the CGST Act. Here, despite the notice having been issued within time, the petitioner was granted the entire limitation period for filing a reply. The petitioner did file the reply on the last date, in which event the Authority ought to have passed an order on that date itself, after considering the reply. The Authority having delayed the matter, the mandate of Section 129 (3) is not followed.
The impugned order cannot be sustained - refund of the amounts paid is directed - petition allowed.
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2024 (9) TMI 1582
Seeking to quash deficiency memo - refund of GST paid by the petitioner concern has been rejected on the ground of limitation - petitioner is also seeking a direction to the respondents to process and release the GST refund of petitioner - HELD THAT:- In terms of Section 54 of CGST Act of 2017, the application for refund of tax was to be filed before the expiry of two years from the relevant date, i.e., the application was to be filed by or before 19.09.2020. A perusal of annexure IV to the writ petition, i.e., Form-GST-RFD-01 reveals that the petitioner concern filed the application for refund of tax on 08.09.2020, i.e., well before the expiry of two years from the relevant date.
It is very strange that in the deficiency memo dated 23.09.2020 the respondent No.2 did not take the ground of limitation or that the original application of petitioner concern dated 08.09.2020 was barred in terms of Section 54 of CGST Act of 2017, which leads to the conclusion that on 08.09.2020 the original application of petitioner concern for refund of GST was within time from the relevant date. However, the application dated 28.03.2020, which was filed on the asking of respondent No.2, was rejected by respondent No.2 only on the ground of limitation. Once the respondents had treated the original application dated 08.09.2020 as within time from the relevant date, then how the second application dated 28.09.2020, which was in continuation to the original application dated 08.09.2020 and was filed only on the advice of respondent No.2, became barred by limitation.
A perusal of the objections filed by the respondents reveals that the respondents have miserably failed to justify their action in rejecting the claim of petitioner concern. It seems the objections have been filed only for the sake of objections and was a mere formality; the same seem to be evasive in nature. In the objections the respondents have failed to aver anything about the first application filed by the petitioner concern on 08.09.2020 - A perusal of the objections reveals that the respondents instead of taking a particular stance to controvert the claim of petitioner concern tried to avoid the same by simply averring no comments, which leads to the conclusion that the respondents were avoiding to make a direct reply and the same is sufficient for this Court to draw an adverse inference. It seems that before filing the objections the respondents did not go through the case of petitioner concern thoroughly and have taken the matter very lightly.
The deficiency memo (Form-GST-RFD-03) issued by Assistant Commissioner, Goods and Services Tax quashed - petition allowed.
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2024 (9) TMI 1581
Challenge to order u/s 73(9) of the Uttar Pradesh Goods and Services Tax Act, 2017 - HELD THAT:- The factual matrix is such that the matter is squarely covered by a coordinate Bench judgment of this Court in Mahaveer Trading Company vs. Deputy Commissioner State Tax and another [2024 (3) TMI 334 - ALLAHABAD HIGH COURT] where it was held that 'It has been passed in gross violation of fundamental principles of natural justice. The self imposed bar of alternative remedy cannot be applied in such facts. If applied, it would be of no real use. In fact, it would be counter productive to the interest of justice. Here, it may be noted, the appeal authority does not have the authority to remand the proceedings.'
The impugned order dated April 27, 2024 is quashed and set-aside with a direction given to the officer concerned to grant the petitioner another opportunity of filing a fresh reply and thereafter fix a date of hearing and pass a reasoned order. The entire exercise should be completed within a period of two months from date.
Petition disposed off.
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2024 (9) TMI 1580
Cancellation of registration of petitioner - bar of time limitation - order has been passed without any application of mind - violation of principles of natural justice - HELD THAT:- In Surendra Bahadur Singh's case [2023 (8) TMI 1262 - ALLAHABAD HIGH COURT] the appeal was barred by time under Section 107 of the Act, however, the coordinate Bench took into consideration the original order and set aside the same being non-reasoned and allowed the petitioner therein to file reply to the show cause notice.
The order impugned herein is liable to be set aside. Accordingly, the order dated February 16, 2023 is quashed and set aside. The petitioner is directed to file its reply to the show cause notice within three weeks from date and the adjudicating authority is directed to proceed de novo and pass order after granting opportunity of hearing to the petitioner - Petition allowed.
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