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GST - Case Laws
Showing 761 to 780 of 13912 Records
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2024 (9) TMI 1465
Violation of principles of natural justice - petitioner did not have a reasonable opportunity to contest the tax demand on merits - difference between the purchase value, as reflected in the auto-populated GSTR 2A, and the purported outward supply value as per the petitioner's GSTR 3B returns - HELD THAT:- It is clear that tax liability was imposed on the difference between the purchase value, as reflected in the auto-populated GSTR 2A, and the purported outward supply value as per the petitioner's GSTR 3B returns. The petitioner asserts that the outward supply value was more than Rs.6 crores and not Rs.1.2 crore. Given that liability was imposed on deemed sales basis without the petitioner being heard, it is just and necessary to provide an opportunity to the petitioner to contest the tax demand on merits by putting the petitioner on terms.
The impugned order dated 10.11.2023 is set aside on condition that the petitioner remits 10% of the disputed tax demand as agreed to within a period of two weeks from the date of receipt of a copy of this order. The petitioner is permitted to submit a reply to the show cause notice with in the aforesaid period - Petition disposed off.
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2024 (9) TMI 1464
Challenge to assessment orders - lack of jurisdiction - discharge of entire duty liability from and out of the ITC availed by the petitioner, at the time of import - HELD THAT:- The challenge to the impugned order on the ground that the respondent lack jurisdiction based on the decision of M/S. RASATHE GARMENTS VERSUS THE STATE TAX OFFICER (ST) (INSPN.) , TIRUNELVELI, THE COMMISSIONER OF COMMERCIAL TAXES [2024 (6) TMI 481 - MADRAS HIGH COURT] is answered against the petitioner. The respondent is competent to pass the order in terms of above circular. That apart, the Act also does not discriminate between the officer from the Intelligence Wing or the Inspection Wing or the Regular Adjudication Wing. All of them are proper officers for the purpose of issuance of notice under Section 73 or 74 of the respective GST Act.
At the same time, it is noticed that the petitioner has not given a clear reply and has suffered an assessment order. It is not open for the petitioner to state that all the information are available and therefore, the impugned order passed by the respondent is liable to be interfered with for failure on the part of the petitioner to get the necessary date / documents. Whenever a show cause notice is issued, it lays a foundation for future orders to be passed and therefore, it is incumbent on the part of an assessee to give a proper reply with proper tabulation, explaining the position with the documents which the petitioner has not done.
This Court is inclined to set aside the impugned order, dated 24.04.2024 and remit the case back to the respondent to pass a fresh order on merits, subject to petitioner depositing 10% of the balance amount on the amount other than the defect no.1 relating to 100% adjustment of tax liability from and out of the ITC - The petitioner shall deposit 1% of the tax liability in terms of Section 86 (b) of the respective GST Rules, 2017. For the respective assessment years, the amount shall be deposited by the petitioner within a period of thirty (30) days from today.
Petition allowed.
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2024 (9) TMI 1463
Rejection of appeal on the ground that the appeal was beyond the condonable period under Section 107 of applicable GST statutes - belated filing of annual return in Form GSTR 9 - HELD THAT:- It is clear that the petitioner presented the appeal on 26.12.2023 and the condonable period lapsed on 17.12.2023. The period of delay beyond the condonable period is only nine days. In the affidavit filed in support of the writ petition, the petitioner stated that the papers were handed over to the accountant for filing the appeal and that the petitioner was not well during the relevant period. Immediately upon recovery, the petitioner contacted the auditor and came to know that the appeal had not been filed. These facts and circumstances justify the consideration of the petitioner's appeal on merits.
Petition is disposed of by directing the appellate authority to receive and dispose of the petitioner's appeal on merits, without going into the question of limitation, provided such appeal is re-presented within ten days from the date of receipt of a copy of this order.
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2024 (9) TMI 1462
Violation of principles of natural justice - petitioner did not notice the show cause notice or other communications in view of his limited computer knowledge - petitioner contends that the mechanism of reconciliation of GSTR 3B returns and the auto populated GSTR 2A was not in force during the relevant period - HELD THAT:- On examining the impugned order, it appears that the tax proposal was confirmed on the ground that the petitioner did not reply to the show cause notice. By taking into account the assertion that such non participation was on account of not being aware of proceedings, the interest of justice warrants re-consideration subject to putting the petitioner on terms.
The impugned order dated 20.12.2023 is set aside on condition that the petitioner remits 10% of the disputed tax demand as agreed to with in a period of fifteen days from the date of receipt of a copy of this order. The petitioner is permitted to submit a reply to the show cause notice within the aforesaid period - petition disposed off.
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2024 (9) TMI 1461
Limitation period for initiating proceedings under Section 73(10) of CGST Act, 2017 - filing of annual returns under the Central Goods and Services Tax Act, 2017 - HELD THAT:- In the present case, the Assessment Year is 2018-19 and the end of the financial year comes on 31.12.2019, within which time as per Rule 80, an annual return has to be filed. The petitioner filed the annual return before 31.12.2019 and the present proceeding is initiated on 19.04.2024, as per Annexure P-3. The three year period as provided under Section 73(10) ends on 31.12.2022. The ground of limitation is raised on this count.
The extension as provided in the second proviso to Section 44(2) is only with respect to the filing of a return even after the expiry of the further period of three years, from the due date of furnishing the annual return. Sub-section (2) as we notice speaks of any annual return to be filed within three years from the due date of furnishing the said annual return. Section 73(10) specifies three years from the due date of filing of annual return and not three years from the extended date of filing an annual return under Section 44(2). Further, it has to be noticed that the proviso under Sub-section (2) empowers the Government to issue a notification and the notification produced before us dated 28.10.2020 has been issued by the Commissioner who does not have such power. The notification is also issued under the proviso to Section 44(1) which empowers the Commissioner to exempt any class of registered persons from filing annual returns under the provision and not for extension of due date for filing of annual returns or extension of the period provided under Sub-section (2), for filing of annual returns.
Interim stay of the Annexure P-3 order granted - Post on 11.09.2024.
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2024 (9) TMI 1460
Violation of principles of natural justice - lack of jurisdiction - non application of mind - Reverse Charge Mechanism (RCM) liability issue - HELD THAT:- The petitioner replied on the RCM liability issue by stating that the amounts declared and paid under RCM are greater than the amount mentioned in the notice. The observation of the proper officer on this issue reflects complete non application of mind. Likewise, as regards trade payables, the petitioner replied stating that all trade payables are below 180 days. Once again, without applying his mind to the reply, an identical finding is recorded. Since the impugned order is vitiated by complete non application of mind and non consideration of the petitioner's reply, such order is liable to be set aside.
The impugned order dated 30.04.2024 is set aside and the matter is remanded for reconsideration - Petition disposed off by way of remand.
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2024 (9) TMI 1459
Refund order - rejection on the ground that the petitioner as an SEZ Unit was not allowed to claim refund under the GST law and the refund claim for the tax period on supplies made to SEZ Unit / Developers can be claimed only by the supplier of goods or services - HELD THAT:- Admittedly, no stay has been granted by the Hon’ble Apex Court in the S.L.P. preferred by the Revenue against the aforesaid decision in the case of Britannia Industries Limited [2020 (9) TMI 294 - GUJARAT HIGH COURT]. The ratio laid down by the Division Bench of this Court in the case of Britannia Industries Limited still holds the field and thereby, the same ought to have been followed by the Appellate Authority while deciding the appeal of the Revenue. The Appellate Authority could not have ignored the dictum of law merely on the ground that the said decision is pending adjudication before the higher forum more particularly without any stay. The facts of the present case as well as the facts in the case of Britannia Industries Limited are more or less identical in nature and thereby, a different view than that of already taken by the Coordinate Bench of this Court in the case of Britannia Industries Limited cannot be takien.
The present petition is allowed by quashing and setting aside the impugned order dated 30th November 2023 passed by the respondent No. 2 - Appellate Authority. The present petition is, accordingly, disposed of.
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2024 (9) TMI 1402
Grant of leave - HELD THAT:- There is nothing placed on record by the respondents to show that the process in terms of order dated 8th April, 2024 passed by the Chief Judicial Magistratem Gautam Buddha Nagar, Uttar Pradesh was served upon the appellant. Apart from this, though on 29th April, 2024, interim relief was granted by this Court to the appellant on condition of cooperating for investigation, the counter affidavit and additional counter affidavit filed by the respondent-State show that even a notice was not issued during the last about four months calling upon the appellant to appear for investigation. The presence of the appellant was not required for about four months.
The interim order passed by this Court on 29th April, 2024 is made absolute on the same terms and conditions - Appeal allowed.
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2024 (9) TMI 1401
Violation of principles of natural justice - tax adjudication process under U.P. GST Act, 2017 - HELD THAT:- It is found that no opportunity of personal hearing as was requested by the petitioner in his reply to the show cause notice was given to the petitioner before the impugned order has been passed. Therefore, the writ petition allowed. The impugned order dated 17.08.2022 is hereby set-aside.
Since the petitioner has already given a reply to the show cause notice issued earlier, the Assessing Officer shall fix a date, time and place of hearing and give proper opportunity of personal hearing to the petitioner within a period of two weeks' from the date of certified copy of this order is produced before him.
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2024 (9) TMI 1400
Detention of the goods and vehicle of the petitioner - Section 129 of the Central Goods and Services Tax Act, 2017 read with Section 20 of Integrated Goods and Services Tax Act, 2017 - whether the goods may be released by the authorities under Section 129(1)(a) or 129(1)(b) of the CGST Act read with IGST Act? - HELD THAT:- The present case is squarely covered by the judgment of this Court in H/S HALDER ENTERPRISES VERSUS STATE OF U.P. AND OTHERS [2023 (12) TMI 514 - ALLAHABAD HIGH COURT] where it was held that 'The order passed by the authorities dated October 19, 2023 is quashed and set aside. The authorities are directed to carry out the exercise in terms of Section 129(1)(a) of the CGST Act within a period of three weeks from today'.
On a bare perusal of the record and the judgment cited above, it is found that there are no reason why this Court should take a different view of the matter. Ergo, the goods would have to be released in terms of Section 129(1)(a) of the CGST Act read with IGST Act.
The order passed by the authorities dated September 12, 2024 is quashed and set aside. The respondent authorities are directed to carry out the exercise in terms of Section 129(1)(a) of the CGST Act read with IGST Act within a period of three weeks from today - Petition allowed.
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2024 (9) TMI 1399
Dismissal of Appeal - appeal was considered to have been filed beyond 3 months from the date of communication of the order impugned in the said appeal - petitioner has not provided any acceptable evidence to prove that date of communication of order-in-original - HELD THAT:- The order-in-appeal dated 5th July 2024 is set aside - matter remanded for de novo consideration.
Appellate Authority who will hear this appeal shall give personal hearing to Appellant, notice whereof shall be communicated at least 5 working days in advance. The order to be passed shall be a reasoned order dealing with all submissions of Appellant. If the Appellate Authority is going to rely on any order or judgment of any Court or Tribunal or any other forum, a list thereof shall be made available along with the notice for personal hearing. If the order or a judgment is unreported then a copy thereof shall also be made available along with the notice. This is to enable Appellant to deal with/distinguish the judgment or the order.
The appeal shall be disposed by 30th November 2024.
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2024 (9) TMI 1398
Extension of time limit for passing and order u/s 73 - Absence of recommendation of GST Council - Absence of corresponding state government notification parallel to Central Govt. Notification - Non-fulfilment of condition precedent for issuance of the Notifications in exercise of powers under Section 168A of the Central Act - whether the Notification No.56/2023-CT dated 28.12.2023, is ultra vires the provisions of Section 168A of the Central Act? - HELD THAT:- It is apparent that for the Government to exercise the powers under Section 168A to extend the time limit specified or prescribed or notified, it can be made on the recommendation of the GST Council by way of a notification in respect to acts which could not be completed or complied with due to force majeure. The challenge to the Notification No.56/2023-CT is on account of absence of recommendation by the GST Council and existence of force majeure as defined in the Explanation to Section 168A of the Central Act.
In the case of V.M. Kurian Vs. State of Kerala [2001 (3) TMI 1091 - SUPREME COURT], the Supreme Court was dealing with Rule 5 of Kerala Building Rules and the question which arose was whether without the recommendation of Greater Cochin Development Authority and the Chief Town Planner, the State Government could have granted exemption from the operation of the Kerala Building Rules for construction of an eight storey building. The Supreme Court in the said judgment observed that the word “recommendation” is “a statement expressing commendation or a message of this nature”. However, taking into account that the word “recommendation” was not defined in the Kerala Building Rules, it was observed that the meaning of the word “recommendation” has to be understood in the context of the provisions of the Kerala Building Rules and the object behind the Rules.
In the instant case, it would be seen that both the Central Act as well as the State Act do not define the term “recommendation”. Under such circumstances, it would be necessary to understand the impact of the word “recommendation” in the context of the provisions of the Constitution as well as the Central Act and State Act - It is also pertinent to take note of that the said power conferred on the Parliament and the State Legislature is not subject to Article 279A except to the extent that in respect to the Goods and Service Tax to be levied on petroleum, crude, high speed diesel, motor spirit (commonly known as petrol), natural gas and aviation turbine fuel, the power can be exercised under Article 246A from the date recommended by the GST Council.
It is apparent that the object behind the insertion of the Article 246A and Article 279A and overriding Article 254 is to promote fiscal federalism and cooperative federalism. Under such circumstances, the recommendations to be made by the GST Council if required as per the provisions of the Central Act or the State Act has to be construed to be a sine qua non for exercise of power by the Union or the State Government. In other words, wherever the provisions of the Central Act or the State Act stipulates that an act is required to be done on the recommendation of the GST Council, the act can be done only when there is a recommendation.
This Court is of the opinion that the Notification No.56/20123-CT is ultra vires the Central Act and the same is not legally sustainable in law. Accordingly, the same is set aside and quashed - the impugned Orders-in-Original which have been passed under Section 73(9) both under the Central Act as well as State Act are beyond the time period prescribed under Section 73(10) of both the Central Act or the State Act for which the same are liable to be interfered with as being passed without jurisdiction.
Petition allowed.
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2024 (9) TMI 1397
Rejection of appeal of the petitioner on the ground that the same is filed beyond the period of limitation - HELD THAT:- The impugned order dated 08.12.2023 passed by the appellate authority is set aside and the matter is remanded before the first appellate authority (respondent no.1) with a direction to consider and adjudicate upon the appeal filed by the petitioner on merits without raising any objection on the limitation, after notice and opportunity of hearing to all concerned.
Petition disposed off.
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2024 (9) TMI 1396
Quashing of SCN issued to a petitioner in a tax matter due to the dissolution of a partnership firm - the petitioner submit that he is willing to participate in the proceedings before the department as tax payments with regard to the firm have been made and the petitioner is willing to show the same to the department.
HELD THAT:- The impugned order dated April 28, 2024 issued by the respondent no.2 [Annexure No.9] as well notices dated December 16, 2023/December 19, 2023 and April 23, 2024 [Annexure Nos.5 & 6] are quashed and set aside with liberty granted to the respondent authorities to proceed against the petitioner and other legal heirs of the partner in accordance with law.
Petition disposed off.
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2024 (9) TMI 1395
Detention of the goods and vehicle of the petitioner - Section 129 of the Central Goods and Services Tax Act, 2017 read with Section 20 of Integrated Goods and Services Tax Act, 2017 - whether the goods may be released by the authorities under Section 129(1)(a) or 129(1)(b) of the CGST Act read with IGST Act? - HELD THAT:- The present case is squarely covered by the judgment of this Court in H/S HALDER ENTERPRISES VERSUS STATE OF U.P. AND OTHERS [2023 (12) TMI 514 - ALLAHABAD HIGH COURT] where it was held that 'The order passed by the authorities dated October 19, 2023 is quashed and set aside. The authorities are directed to carry out the exercise in terms of Section 129(1)(a) of the CGST Act within a period of three weeks from today'.
On a bare perusal of the record and the judgment cited above, it is found that the facts and issue in the present writ petition are quite similar to one in M/s Halder Enterprises. In light of the same, there are no reason why this Court should take a different view of the matter. Ergo, the goods would have to be released in terms of Section 129(1) (a) of the CGST Act read with IGST Act.
The order passed by the authorities dated July 29, 2024 is quashed and set aside. The authorities are directed to carry out the exercise in terms of Section 129(1) (a) of the CGST Act read with IGST Act within a period of three weeks from today - Petition allowed.
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2024 (9) TMI 1394
Challenge to orders related to audit and intimation liability issued against the petitioner - Section 65 of the CGST Act, 2017 - HELD THAT:- In the instant case, it is a matter of record and an undisputed fact that the claim of the respondents are in relation to the petitioner-Company for the financial years 2018-19 and 2019-20 and the impugned order dated 29.04.2024 in relation to the financial year 2018-19 and the impugned proceedings in relation to financial year 2019-20 are clearly without jurisdiction or authority of law in the light of the undisputed fact that the Resolution Plan has already been approved by the NCLT and the judgments referred to supra. Under these circumstances, the impugned order and the proceedings deserve to be quashed.
Petition allowed.
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2024 (9) TMI 1393
Challenge to Order of Seizure - challenge to provisional attachment of bank account - pre-show cause intimation and SCN - HELD THAT:- Upon issuance of the pre-show cause notice intimation and the show cause notice which was based upon the records, papers, documents etc., seized by the respondents, the same would not be required any longer and reliance placed on the said documents would not subsist any longer and the respondents are to be directed to return back the said documents, especially when the petitioner is into real estate business and the documents are required for the purpose of its business. Under these circumstances, though the order of seizure dated 09.01.2024 does not require to be interfered with in the light of the issuance of the pre-show cause notice intimation and the show cause notice issued by the respondents, suffice it to state that direction are to be issued to the respondents to return back all the documents seized by them vide Annexure-E dated 09.01.2024.
Insofar as the impugned provisional bank attachment orders at Annexures-L1, L2 and L3 dated 28.05.2024 are concerned, in the light of the specific contention of the petitioner that out of the total alleged liability of Rs. 5,10,47,405/-, the petitioner has only discharged Rs. 3,60,00,000/- in the States of Karnataka and Telangana coupled with the interim order passed by this Court on 21.08.2024 staying the attachment of bank accounts, without prejudice to the rights of the respondents to proceed further after taking appropriate decision in pursuance of the show cause notice, it is deemed just and appropriate to set aside the provisional bank attachment order reserving liberty in favour of the respondents to proceed in this regard.
The petition is hereby partly allowed.
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2024 (9) TMI 1392
Invocation of revisional jurisdiction conferred u/s 108 of KGST Act - HELD THAT:- Though several contentions have been urged by both sides in respect of their respective claims, having regard to the undisputed fact that the petitioner was not notified nor provided any opportunity by respondent No. 3 before passing the impugned order purporting to invoke Section 108 of KGST Act, it is deemed just and appropriate to set aside the impugned order reserving liberty in favour of the respondent to take appropriate steps in accordance with law after duly notifying the petitioner and hearing him in accordance with law.
Impugned order at Annexure-A dated 21.05.2024 passed by respondent No. 3 is hereby quashed - petition allowed.
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2024 (9) TMI 1391
Initiation of proceedings u/s 129 of the CGST / SGST Acts - applicability of provisions of Rule 55 of the CGST Rules - HELD THAT:- It is not disputed that the goods were covered by Exts.P4, P5 and P6 delivery notes and Ext.P7 E-Way bill. Though, on the top of Ext.P7 E-Way bill only one delivery note is mentioned, the same is stated to be on account of difficulty in entering the details of 3 delivery notes on one E-Way bill. However, numbers of other two delivery notes are seen included in the column for 'transportation details' in the E-Way bill. That apart, a perusal of Exts.P4, P5, P6 and P7 will indicate that the value of the goods had been correctly mentioned and the entire amount of tax to be paid had also been mentioned. There is no finding in Ext.P17 that would indicate that there is any attempt to evade any tax.
It is clear that Rule 55 of the CGST Rules, 2017 applies only to the four circumstances mentioned in Rule 55 (a) to (d) and supply of Acetylene Gas is not covered by Rule 55 (a). Therefore, the goods should have been covered by a tax invoice.
The competent among the respondents are directed to consider the case as one covered by the provisions of Section 122 of the CGST /SGST Acts and impose appropriate penalty in terms of the provisions contained in that Section. Any amount recovered from the petitioner on account of ExtP17 order shall either be refunded or shall be adjusted against any future tax liability, by crediting the electronic cash register of the petitioner - petition disposed off.
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2024 (9) TMI 1390
Challenge to action on the part of the Central Board of Indirect Taxes and Customs in issuance of a notification bearing No. 56/2023 dated 28.12.2023 - validity of notification extending the time limit for passing orders under Section 73(9) of the CGST Act, 2017 - HELD THAT:- It prima facie appears that the notification bearing No. 56/2023 is not in consonance with the provisions of 168 (A) of the Central GST Act, 2017. If the said notification cannot stand the scrutiny of law, all consequential actions so taken on the basis of such notification would also fail.
This Court duly takes note of the submission of Mr. S.C Keyal, the learned Standing counsel that the Petitioner would be entitled to the reliefs as proposed in the Financial Bill 2024. In addition to that, this Court also finds that an examination would be required as regards the applicability of the force majeure in respect to the notification bearing No. 56/2023 taking into account 7/7 the contents of the Minutes of the 49th Meeting of the GST Council. However for the purpose of deciding the same, this Court is of the opinion that an opportunity has to be granted to the Respondent Authorities to place on record their stand as well as bringing on record the materials on which they claim the applicability of the force majeure.
This Court is of the opinion, that the Petitioner herein is entitled to an interim protection pending the notice. Till the next date, no coercive action shall be taken on the basis of impugned assessment order dated 30.04.2024 - The Respondents are directed to file their affidavits on or before 13.09.2024.
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