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GST - Case Laws
Showing 781 to 800 of 13912 Records
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2024 (9) TMI 1389
Challenge to bank attachment notice - impugned order passed without even granting an opportunity of personal hearing to the petitioner, nor calling for any reply from the petitioner - violation of principles of natural justice - HELD THAT:- Initially, petitioner herein was registered under the provisions of the Service Tax Act, during which period, the petitioner has appointed an Auditor as his Authorized representative in respect of Service matters; however, subsequent to the introduction of GST regime, though the petitioner got registered under the provisions of the GST Act and also shifted their place of business from AGT Business Park, Avinashi Road, Coimbatore to PMR Layout, Second Street, Poongothai Nagar, Civil Aerodrome post Citra, Coimbatore, the petitioner failed to give authorisation as regards GST matters, during which point of time, the show cause notice was served on the petitioner’s Auditor and for the reasons best known to the Auditor, the same was failed to be brought to the notice of the petitioner. Therefore, the petitioner was not in a position either to give reply to the show cause notice nor appear before the first respondent for the personal hearing.
It was only owing to the fault on the part respondent-Department, the petitioner became unaware of the entire proceedings and was not in a position to respond to such notices, this Court is of the view that the petitioner is entitled to the relief sought for in both the Writ Petitions.
The Order-in-Original is set aside and the matter is remanded back to the first respondent for fresh consideration, however, the same is subject to the payment of 7.5% of the disputed tax by the petitioner within a period of four weeks from the date of receipt of a certified copy of this order - Petition allowed by way of remand.
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2024 (9) TMI 1388
Levy of Service Tax on royalty - challenge to SCN - HELD THAT:- The SCN has already been issued on 20.10.2021 and the petitioner was called upon for personal hearing in pursuance of the said show cause notice, the remedy lies on the petitioner to pursue his case before the authorities in the show cause notice issued on 20.10.2021 and to raise all his grievances there.
In view of the judgment of Hon’ble Supreme Court passed in Mineral Area Development Authority Case [2024 (7) TMI 1390 - SUPREME COURT (LB)] the present petition is disposed of, however, since the notice dated 23.02.2024 has already lost its efficacy as the date mentioned in the notice is already expired, therefore, it would be appropriate to direct the petitioner to appear before the authority concerned on 28/08/2024 and then the authority concerned after giving the proper opportunity of hearing to the petitioner, decide the case in accordance with law.
Petition disposed off.
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2024 (9) TMI 1387
Applicant (THDCIL) is a Government Entity or not? - Legal Services provided by the advocates including Senior Advocate or firm of Advocate is exempt from GST for THDCIL - reverse charge mechanism - HELD THAT:- In order to qualify as a “Government Entity”, such ENTITY must be either “set up by an Act of Parliament or State Legislature;” or “established by any Government, with 90per cent, or more participation by way of equity or control, to carry out a function entrusted by the Central Government, State Government, Union Territory or a local authority”.
The applicant is claiming to be a “Government Entity”, by interpreting the definition as Government Entity means an authority or a board or any other body including a society, trust, corporation, established by any Government, with 90 per cent, or more participation by way of equity or control, to carry out a function entrusted by the Central Government, State Government, Union Territory or a local authority - as on the date of filing of the application dated 01.05.2024 for the present proceedings, the Equity in the applicant company i.e. THDC India Limited is shared between NTPC Limited and Government of UP in a ratio of 74.496 % and 25.504 %, which is less than the stipulated 90% of equity and hence does not fulfill the condition of “with 90 per cent, or more participation by way of equity or control,”.
There is no doubt that at the time of registering the Company, as a Public Limited Company, under the Companies Act, 1956, in July’ 1988, the Government had 100 % equity or control (Govt, of India and Govt, of Uttar Pradesh in the ratio of 75:25), but as admittedly accepted by the applicant in their application and during the course of personal hearing on 07.06.2024, the equity or control of the Government became less that 90 %, as Government of UP held only 25.504 % of the total equity i.e. paid up capital - the status of the applicant i.e. the Company with respect to equity or control of the Government did not remained same and got reduced to 25.504 %, which is less than the stipulated 90 % or more.
At present the equity or control of the Government is less than the stipulated 90% and hence cannot be categorized and considered as “Governmental Entity” in terms of Notification No 11/2017-Central Tax (Rate), dated 28 June’2017, as amended by the Notification No. 31/2017-Central Tax (Rate), dated 13 October’ 2017. And hence the provisions of Entry No. 45 of the Notification No. 12/2017-Central Tax (Rate), dated 28 June’2017, shall not be applicable in the case of the applicant.
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2024 (9) TMI 1351
Levy of GST - pure agent or not - IIT Roorkee - Real Estate Owners, Resident Welfare Associations (RWAs), Real Estate Developers etc. as referred in circular No. 206/18/2023-GST dated 31st October’2023 or not - electricity charges that it recovers from its commercial occupants against the consideration that represents only-reimbursement of actual cost of Electricity charges (on the basis of sub-meter / separate meter) that is being charged by Uttarakhand power corporation limited (UPCL) to the IIT Roorkee - HELD THAT:- On considering the first proviso to section 98 (2) of the Act comprehensively, it is apparent that the first proviso covers any “proceedings” in the case of an applicant under any of the provisions of the Act including Section 65 of the Act, under which Audit under section 65 of the CGST Act, 2017 was conducted by the CGST Audit Commissionerate, Dehradun. It is found that such situation have been covered under sub section (2) of the Section 98 of the Central Goods And Services Tax Act, 2017.
The proviso to sub section 2 of the Section 98 of the Central Goods And Services Tax Act, 2017, could be best interpreted that the legislative intent in its wisdom is to empower the advance ruling authority to reject the application in the cases where there is repeated filing of the application before the advance ruling authority on the same issue which is either pending for decision or already decided.
It is observed that during the personal hearing, the applicant’s representatives were specifically asked about the issue raised in the instant application and the issue raised by the CGST Audit Commissionerate, Dehradun, wherein it was admitted by them that the issue concerning applicability of GST on electricity charges recovered from their commercial occupants viz.-a-viz. pure agent is identical and similar in nature as raised by the Department in their audit proceedings. It was also accepted by them that they had voluntary deposited the entire GST liability along with interest through DRC-03 dated 14.03.2023.
The applicant has approached the authority again, for the identical and similar issues and hence we observe that the applicant has approached this authority, on the issue which has already been decided in applicant’s own case under the provisions of the Central Goods And Services Tax Act, 2017 and hence in terms of section 98 (2) of the Central Goods And Services Tax Act, 2017, the present application is not admitted and rejected without going into the merits of the case.
The subject application for advance ruling made by the applicant is not maintainable and hereby rejected under the provisions of Section 98 (2) of the CGST Act, 2017 and UK GST Act, 2017.
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2024 (9) TMI 1350
Challenge to order-in-original - order has been passed beyond the period of limitation provided under Section 73 (10) of both the Central Act as well as the State Act - HELD THAT:- This Court had duly heard the learned counsels appearing on behalf of the parties and has given anxious consideration to the respective submissions. It is seen that there is no Notification passed under Section 168 A of both the Central Act as well as the State Act, thereby extending the period for passing the order in terms with Section 73 (10) beyond 30.04.2024 for the financial year 2018-19.
Taking into account that the impugned order has been passed on 04.05.2024, the same is, therefore, without jurisdiction and accordingly is set aside and quashed.
Petition disposed off.
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2024 (9) TMI 1349
Wrongful availment of Input Tax Credit - registration of certain suppliers from whom the petitioner had availed the supplies, was cancelled - HELD THAT:- The petitioner responded to the impugned SCN on 30.10.2023 claiming that at the material time the suppliers from whom the petitioner had availed the supplies were registered under the CGST Act and the SGST Act. The petitioner also stated that it had paid the amount of invoice raised by the said suppliers, which included the Goods and Services Tax (GST) and, therefore, the petitioner was entitled to avail the ITC as claimed - It appears that said contention has not been examined by the adjudicating authority as the impugned order does not reflect any such consideration.
The impugned order is set aside. The petitioner is granted one more opportunity to file all documents and material in support of his contention that it is entitled to avail ITC within two weeks from date - petition disposed off by way of remand.
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2024 (9) TMI 1348
Liability to clear statutory dues, post-insolvency proceedings under the Insolvency and Bankruptcy Code 2016 - It is contended that the resolution plan, which was approved by the NCLT, on 04.09.2019, provided for payment of Rs. 25 crores towards clearing all the statutory dues, including claims by all Government authorities - HELD THAT:- The question of extinguishment of liability of corporate which have undergone the CIRP process came to be considered by the Hon’ble Supreme Court of India in the case of Ghanshyam Mishra and Sons Pvt. Ltd. Vs. Edelweiss Asset Reconstruction Company [2021 (4) TMI 613 - SUPREME COURT]. The Hon’ble Supreme Court held that 'On the date of approval of resolution plan by the adjudicating authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan.'
In the circumstances, it must be held that the liability of the petitioner, arising out of the AP VAT Act or the GST Act stands extinguished to the extent of its liability up to 4th September, 2019.
The contention of the learned Government Pleader for Commercial Taxes that the order of NCLT is not binding on the State of Andhra Pradesh in view of Section 88 of the GST Act would have to be negatived in as much as Section 238 of the Insolvency and Bankruptcy Code provides for a non-obstante clause overriding all other laws.
Both the Writ Petitions are allowed by setting aside the Demand-cum-Adjudication orders dated 03.06.2023, issued by the Assistant Commissioner (ST)(FAC), Kakinada and the order dated 25.11.2023 passed by the Deputy Commissioner (ST), Vijayawada - Petition allowed.
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2024 (9) TMI 1347
Flawed SCN - it is contended that notices issued u/s 73 of the Central Goods and Services Tax (CGST) Act, 2017, are flawed due to the improper consolidation of multiple tax periods into a single show cause notice - HELD THAT:- This Court finds that the respondent erred in issuing a consolidated show cause notice for multiple assessment years, spanning from 2017-18 to 2020-21.
Section 73 (10) of the CGST Act mandates a specific time limit from the due date for furnishing the annual return for the financial year to which the tax due relates. The law stipulates that particular actions must be completed within a designated year, and such actions should be executed in accordance with the law's provisions. The principles enunciated in the judgment cited by the Hon’ble Supreme Court in THE STATE OF JAMMU AND KASHMIR AND OTHERS VERSUS CALTEX (INDIA) LTD. [1965 (12) TMI 125 - SUPREME COURT]
are directly applicable to the present case.
This Court concludes that the show cause notices issued by the respondent are fundamentally flawed. The practice of issuing a single, consolidated show cause notice for multiple assessment years contravenes the provisions of the CGST Act and established legal precedents.
Petition allowed.
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2024 (9) TMI 1346
Levy of Cess while calculating the applicable tax under section 129 (1) (a) of the KGST and CGST Act - contention regarding the levy of Cess was not raised before JCCT (Appeals) - HELD THAT:- Since the ground regarding the levy of Cess is raised for the first time before this Court hence, in my opinion, an opportunity may be accorded for the petitioner to raise this as a ground before the Joint Commissioner of Commercial Taxes (Appeal). Therefore, the matter requires a remand.
The Writ of Certiorari is ordered. The order dated 17.09.2021 passed by the Joint Commissioner of Commercial Taxes (Appeals), Dharwad Division, Hubli in Appeal No. GST-05/2019-20 vide Annexure-A is quashed. The matter is remanded to the Joint Commissioner of Commercial Taxes (Appeals) permitting the petitioner to raise the ground regarding the levy of Cess. All other contentions are kept open - Petition allowed by way of remand.
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2024 (9) TMI 1345
Wrongful availment of input tax credit while filing return in Form GSTR-3B, for the year 2017-18 - HELD THAT:- The petitioner failed to make use of the opportunity given to him to respond to the notices issued prior to the issuance of Ext. P4 order. However, the fact remains that the input tax credit claimed in Ext. P5 was so claimed at a time immediately after the introduction of GST and when the procedures were not fully clear to all the assessees. It is also evident from the record that the petitioner had not utilized the input tax credit claimed in Ext. P5 and had actually filed Ext. P6 return in the month of August 2018, reversing the input tax credit claimed in Ext. P5.
The petitioner is an honest taxpayer, who had noticed his mistake and had taken steps to rectify the same by filing Ext. P6 return during the month of August-2018. Section 39 (9) of the CGST/SGST Acts indicates that where a registered person is required to revise any return filed by him, the same has to be done before the 30th day of November of the year following the financial year to which such details pertain. Therefore, in the facts of the present case, the petitioner had time till 30.11.2018 to file an application for rectification of any incorrect particular in Ext. P5. The petitioner filed Ext. P6, reversing the input tax credit wrongly claimed in Ext. P5, in the month of August-2018.
The writ petition is allowed by setting aside Ext. P1 and remitting the matter for fresh consideration of the 1st respondent, who shall pass fresh orders in the matter, after affording an opportunity of hearing to the petitioner.
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2024 (9) TMI 1344
Challenge to assessment order - cancellation of registration of the petitioner - HELD THAT:- The impugned orders can be set aside and the matter can be remitted to the file of the Jurisdictional Assessing Authority, namely the 1st respondent. It is inclined to do so taking into consideration the fact that the registration of the petitioner had been cancelled in the month of December 2021 and also taking into consideration the submission of the learned counsel for the petitioner that the petitioner had also stopped business thereafter.
This writ petition will stand ordered directing that if the petitioner remits a sum of Rs.10 lakhs towards the GST liabilities for the months of July and August of 2017, within a period two weeks from the date of receipt of a certified copy of this judgment, Exts.P5, P5(a), P6 and P6(a) orders will stand set aside and the matter will stand remanded to the files of the 1st respondent, who shall pass fresh orders, after affording an opportunity of hearing to the petitioner.
Petition disposed off.
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2024 (9) TMI 1343
Inability to file appeal under Section 107 of the CGST / SGST Acts against Ext.P3 order on account of the fact that the order has not been uploaded on the portal - It is the specific case of the petitioner that though it attempted to file the appeal manually as per the proviso to sub-rule (3) of Rule 108 of the CGST / SGST Rules, the same was not accepted by the Appellate Authority - HELD THAT:- This writ petition will stand disposed of directing that the petitioner shall be permitted to file an appeal against Ext.P3 order, manually, as contemplated by the proviso to sub-rule (3) of the Rule 108 of the CGST / SGST Rules provided such appeal is filed within a period of one week from the date of receipt of a certified copy of this judgment. If such appeal is filed within the aforesaid period, the same shall be treated as an appeal filed in time and shall be disposed of by the Appellate Authority, in accordance with the law, after affording an opportunity of hearing to the petitioner.
The writ petition will stand disposed of.
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2024 (9) TMI 1342
Denial of benefit of Input Tax Credit - denial on the ground that no such payment was made against the Permanent Registration Number of the petitioner - HELD THAT:- The matter requires reconsideration at the hands of the 1st respondent. A reading of Ext.P4 order does not show that the 1st respondent had considered the contention of the petitioner that the payments in respect of which he was seeking the benefit of Input Tax Credit were actually payments which were reflected against the Provisional Registration granted to the petitioner under Registration Number 32AACFK4681K1Z9 and before the petitioner was granted the Permanent Registration Number - 32AACFK4681K2Z8.
There are no reason as to why such credit should be unavailable to the petitioner - petition disposed off.
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2024 (9) TMI 1298
Levy of interest and penalty - evasion of tax - challenge to SCN on the ground of jurisdiction - HELD THAT:- The petitioner has not submitted any reply to the notice issued under Section 74 of the CGST Act which is a show cause notice. The petitioner has directly approached this Court challenging the said show cause notice on the ground of jurisdiction. It is also noticed that the show cause notice has emanated on the basis of GST audit report after the record for the period 2017-18, 2018-19, 2019-20 was examined by the internal Audit Team of Cirlce-1, Audit Commissionerate CGST, Chandigarh in terms of Section 65 of the CGST Act.
The petitioner’s objection that the officer having no jurisdiction to issue notice to it on the assumption of having its business in other States is noticed and to be rejected as misconceived. There is no jurisdictional error on the part of the respondents in issuing show cause notice under Section 74 of the CGST Act.
The powers of the officers who have been appointed under Sections 4, 5 of the CGST Act and those appointed under Section 6 of the CGST Act are the same. A person is appointed by the State is authorized to be a proper officer for the purpose of this Act - once notice has been issued to the petitioner under Section 74 (1) of the CGST Act by the State GST Officer of Punjab, no other officer from any other State would be authorized to initiate proceedings and the question regarding evading of tax or availing of wrongful input tax credit or other issues in terms of Section 74 will be examined by the same officer alone.
The authority at Chandigarh would have the power to issue notice under Section 74 of the CGST Act even with regard to dealings of the company in other States, and therefore, there is no jurisdiction error.
No findings given relating to the challenge made by the petitioner regarding the contents of the notice under Section 74 of the CGST Act and the petitioner is left open to take up all arguments and objections in its reply.
Petition dismissed.
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2024 (9) TMI 1297
Under declaration of output tax - Excess claim of ITC - mismatch of GSTR-01 with GSTR-09 - technical glitch in the GST portal functionality - HELD THAT:- The adjudicating authority has examined the issue in some detail and in terms of an order dated 25.08.2024, the adjudicating authority has accepted the petitioner’s contention that there is technical glitch, whereby the advance amount has been added instead of being reduced. Accordingly, the proposed demand on similar grounds has been dropped. The petitioner, thus, prays that the impugned order be set aside and the adjudicating authority be directed to decide afresh.
Although, the petitioner has a statutory remedy of an appeal, but considering the controversy is in a narrow compass and it appears that the adjudicating authority has already examined the issue for the subsequent period, we consider it apposite to remand the matter to the adjudicating authority to consider afresh.
The matter remanded to the adjudicating authority, to pass a fresh order after affording an opportunity of personal hearing to the petitioner - petition disposed off by way of remand.
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2024 (9) TMI 1296
Refund of IGST which was lying in the electronic cash register - rejection on the ground that provisions of Sub-section (6) of Section 49 of the Central Goods and Services Tax Act, 2017 were not complied with - HELD THAT:- The respondents cannot withhold the refund, which has been directed to be issued by the appellate authority. The Order in Appeal dated 21.01.2024 is required to be implemented unless the same is otherwise stayed by a superior forum. Concededly, in the present case, the respondents have not preferred any appeal or any proceedings to challenge the Order in Appeal dated 21.01.2024. It is impermissible for the respondents to simply ignore the said order.
The respondents are directed to forthwith process the claim for refund in terms of the Order in Appeal dated 21.01.2024 along with applicable interest in accordance with law - Petition allowed.
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2024 (9) TMI 1295
Cancellation of petitioner’s GST registration with retrospective effect - vague SCN - violation of principles of natural justice - HELD THAT:- The impugned SCN did not propose to cancel the petitioner’s GST registration with retrospective effect. However, a letter dated 11.11.2022 sent by the Deputy Commissioner (Anti Evasion), CGST West Commissionerate to the Assistant Commissioner, Janakpuri Division, CGST West was projected on the GST portal. The said letter indicates that during the physical verification conducted at the premises of the petitioner’s principal place of business the firm was found non-existent. In terms of the said letter, the proper officer was directed to initiate the cancellation proceedings from the date of the registration.
The impugned order cancelling the petitioner’s GST registration does not indicate any reason for cancelling the petitioner’s GST registration except referring to the impugned SCN.
The petitioner is essentially aggrieved by the cancellation of GST registration with retrospective effect - the petitioner’s contention that it has not been afforded the sufficient opportunity to respond to any proposed action for cancellation of his GST registration with retrospective effect, is accepted.
It is considered apposite to set aside the impugned order cancelling the petitioner’s GST registration with retrospective effect and permit the petitioner to file a response to the impugned SCN assuming that the same proposed to cancel the petitioner’s GST registration with retrospective effect - petition disposed off.
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2024 (9) TMI 1294
Cancellation of petitioner’s GST registration with retrospective effect - seeking modification in the order to the limited extent that the same be made operative from March, 2022 - violation of principles of natural justice - HELD THAT:- The reason for which the petitioner’s GST registration was cancelled was not reflected in the SCN. Although, the petitioner claims that it did not receive the SCN, it is apparent that even if it had, the same provided it no opportunity to respond to the reasons as set out in the impugned order cancelling its GST registration.
The petitioner is not aggrieved by the cancellation of its GST registration as it had closed down its business. The petitioner is, essentially, aggrieved by cancelling of its GST registration with retrospective effect.
The present petition is disposed of with the direction that the petitioner’s GST registration stands cancelled with effect from 24.05.2022 (being the date on which it was suspended) and not with retrospective effect from 11.09.2017.
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2024 (9) TMI 1293
Cancellation of petitioner’s GST registration with retrospective effect - petitioner has had no opportunity to respond to the allegations - Violation of principles of natuarl justice - HELD THAT:- The impugned order, which has been passed, cancelling the petitioner’s GST registration, falls foul of the principles of the natural justice.
Concededly, the petitioner has had no opportunity to respond to the allegations on the basis of which the said action was premised. Neither the SCN nor the impugned order reflect any reasons for cancelling the petitioner’s GST registration.
The impugned order is set aside. The petitioner’s GST registration is directed to be restored forthwith - Petition disposed off.
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2024 (9) TMI 1292
Violation of principles of natural justice - non-service of SCN - SCN were placed under the tab ‘Additional Notices and Orders’, not readily accessible - HELD THAT:- The SCN were placed under the tab ‘Additional Notices and Orders’ and were not readily accessible. This Court is informed that the said issue has since been remedied and the GST portal has been redesigned to place the notices as well as additional notices and orders under the menu item ‘View Notices and Orders’. Thus, now a user can view both tabs ‘Notices and Orders’ and ‘Additional Notices and Orders’ on the same page. However, it is not disputed that at the material time of issuance of the SCN, the tab ‘Additional Notices and Orders’ was not placed in a position which would invite the taxpayer’s attention to the said tab.
The impugned order is set aside - Petition allowed.
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