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GST - Case Laws
Showing 801 to 820 of 13912 Records
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2024 (9) TMI 1291
Challenge to SCN cancelling registration of petitioner - petitioner’s principal place of business was found to be non-existent at the time of physical verification - It is the petitioner’s case that the impugned SCN has been issued on an ex-facie erroneous conclusion that the petitioner’s principal place of business was found to be non-existent.
HELD THAT:- There are merit in the petitioner’s contention that his premises were in existence at the time of physical verification and the respondents’ conclusion that petitioner’s principal place of business was non-existent at the time of physical verification is ex facie erroneous. The respondents’ conclusion is premised solely on the basis of purported enquiries made from the “nearby shop owners”. However, the Field Report does not mention the name of the said shop owners or any other details.
It is difficult to countenance that a taxpayer’s registration can be cancelled solely on the basis of some general queries/enquiries from random persons, of which there is no record. In this case the petitioner’s premises are found to be in existence and the sign board outside the premises also bears the petitioner’s GSTIN. The Field Report also encloses a photograph of a person in front of the premises of the petitioner - the same establishes that the petitioner was in possession of the premises in question at the material time. The proper officer entertains an apprehension that the petitioner was non-existent at the principal place of business three or four days prior to the date of the physical inspection. It is the petitioner’s contention that the shop in question was lying closed and was opened four or five days before the date of the physical inspection as, prior to that, the petitioner’s GST registration was suspended.
It is considered apposite to direct the petitioner to file a response to the impugned SCN along with all documents relied upon by him so as to establish that his principal place of business is in existence since the date of its registration. The proper officer shall consider the reply of the petitioner and shall take an informed decision thereon - petition disposed off.
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2024 (9) TMI 1290
Restoration of Goods and Services Tax Identification Number (GSTIN) - cancellation of GST registration - Change of principal place of business address - HELD THAT:- The issue whether the petitioner was in existence is required to be addressed by considering the petitioner’s document of being in existence at its principal place of business prior to shifting to the new address.
As far as the petitioner’s current address is concerned, the petitioner has provided the documents to substantiate that he is in existence including the photograph of the premises bearing the sign board of D K Freight Carrier as well as indicating his name and mobile phone number.
The appellate authority has rejected the petitioner’s appeal on the ground that he had not provided sufficient documents as to his principal place of business. Insofar as documents relating to the current address of the petitioner is concerned, the petitioner has provided the same.
It is considered apposite to remand the matter to the appellate authority to consider the matter afresh. The petitioner may file all documents on which it seeks to rely upon to show that he was carrying on the business from the declared principal place of business till he shifted to the current address - petition allowed by way of remand.
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2024 (9) TMI 1289
Seeking grant of bail - forgery - territorial jurisdiction - creation of fake forms - Admissibility of confessional statements - HELD THAT:- This Court is of the opinion that the present case is of a forgery and not related to GST, therefore, no benefit of bail granted in the aforesaid case can be given in the present case.
The inquiry has been defined under Section 2(g) of Cr.P.C. to mean every inquiry, other than trial, conducted by a Magistrate or a Court. It would also be appropriate to understand the meaning of ‘investigation’ which has been defined under Section 2(h) Cr.P.C. as all the proceedings for collection of evidence conducted by a police officer - ‘Trial’ has not been defined under the Code of Criminal Procedure, 1973. Lexicologically, ‘trial’ means a judicial examination of a case in accordance with law. Hence, for an inquiry or trial, it is the court which is the focal point, whereas for an investigation, it is the police officer. Thus, in the present case, the arguments as placed by learned counsel for the applicants, on the point of jurisdiction, have no legs to stand.
Section 27 of the Indian Evidence Act, 1872 deals with the relevancy of information received from a person accused of any offence while in the custody of the police officer. The Section provides an exception to the general rule that confessions made to the police officers are inadmissible in evidence. From the aforesaid, the scope of Section 27 of the Act, 1872 is that it applies to any information given by the person accused of an offence, which leads to the discovery of a fact - The condition for applicability of the aforesaid Section is that the person giving the information must be an accused in police custody. The information provided must lead directly to the discovery of the material fact and only that portion of information which directly leads to the discovery is admissible. For example, if an accused, while in custody, reveals the location of a weapon used in the crime and upon searching that location, the weapon is indeed found, the part of statement where accused described the location of weapon is admissible in courts as evidence.
In the present case, after registration of the FIR when forgery had been done by using the Aadhaar Card and PAN Card of the informant, fake GST firms were registered, Investigating Officer proceeded on the information as provided by a secret informer and arrested two accused who disclosed about the office where work of the firm was being done. On the aforesaid information of the arrested accused persons, the Investigating Officer reached the office premises, wherein he found other persons working for the firm of the arrested accused persons. Laptops, mobiles, SIM Cards, fake invoices were recovered, thus, discovering such fact which connected them with the main accused who had got registered the fake firms and the consequential forgery or theft of GST was found. Thus, that part of the discovery of fact is admissible as per Section 27 of the Act. Therefore, argument as placed by learned counsel for the applicants regarding the fact that confessional statements can be taken as a piece of evidence, has no legs to stand.
The present case relates to economic offences, such as large scale fraud, money laundering and corruption, are often viewed seriously because they affect the economic fabric of the society. The Courts may deny bail in such cases especially if the accused holds a position of influence or power. In the present case, money trail of crores, which affects the society at large scale, is involved which started from registration of fake firms by using Aadhaar and PAN Cards of the informant who had not applied for such registration.
In the present case from the report of the concerned District Judge/ Chief Judicial Magistrate, it is clear that the accused have avoided coming to the court and discharge application of one of the accused has been rejected. One or the other grounds are being taken by the accused persons in getting the matter adjourned so that the charge is not framed, therefore, they are trying to cause deliberate delay so that the charges may not be framed, hence, interfering in judicial process, thus, giving ample reason of not enlarging them on bail.
As assisted by the State that backbone of Goods Services Tax regime and Input Tax Credit, is that under the GST Regime ITC follows supply chain not only in intra-state but also interstate supply. Thus, on the ground of jurisdiction as argued by learned counsel for the applicant this Court is of the view that though registration of fake firms were at Punjab and Maharasthra, the complainant is resident of New Delhi and the FIR has been lodged at Gautam Buddh Nagar, the genuineness of complaint questioning the territorial jurisdiction cannot be raised on the basis of occurrence as the same cannot be said to be at one place where the GST firm was registered but its connections with other fake firms are also required to be seen.
This is not a fit case for granting bail - bail applications are rejected.
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2024 (9) TMI 1288
Cancellation of registration and the dismissal of an appeal filed - time limitation - Constitutional validity of Section 29(2) of the CGST Act and BGST Act - applicability of Article 19(1)(g) and Article 21 of the Constitution of India - HELD THAT:- The petitioner admittedly did not agitate the cause within the four walls of the statute and hence has raised the question of constitutional validity of Section 29 (2) under both the enactments. The decision in Rohit Enterprises [2023 (2) TMI 759 - BOMBAY HIGH COURT] which only has a persuasive effect, which also does not have any declaration of law and has only exercised discretion under Article 226 of the Constitution of India on the facts which came out therein. The facts though not identical, the hardship projected is almost similar to that in CWJC 11874 of 2024 and the Division Bench of the High Court found that the constitutional guarantee to carry out trade and commerce is unconditional and unequivocal and it must be enforced regardless of shortcomings in the scheme of the GST enactment.
There is no ground validly raised against the delay in filing an appeal - Section 30 which provides for revocation of cancellation of registration if applied for within thirty days.
There arev absolutely no reason to exercise our discretionary power to interfere with the orders passed; clearly within the boundaries of the statute - there are no reason to entertain the writ petition on the ground of testing the constitutional validity of Section 29 (2) - The writ petition is dismissed.
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2024 (9) TMI 1287
Appeal rejected on the ground of non-supply of certified copy - direction sought to restore the appeal - whether the certified copy of the order appealed is required to be submitted in view of amended Rules 108 and 109 of the GST Rules with effect from 26th December 2022?
HELD THAT:- When an order which is appealed against is issued or uploaded on the common portal and the same can be viewed by the appellate authority, requirement of submitting certified copy of such uploaded order for its authenticity would be insignificance. Thus, the appellate authority could not have rejected the appeal on such a technical ground more particularly when the statute does not provide the same.
The impugned order dated 28th February 2023 passed by the respondent No. 3 is hereby quashed and set aside and the matter is remanded back to the appellant authority to pass a fresh de novo order on merits after giving an opportunity of hearing to the petitioner - Petition disposed off.
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2024 (9) TMI 1286
Freezing of the financial assets/demat accounts of the Petitioner - five demat accounts of petitioner have been attached without even issuing a notice let alone giving an opportunity to present petitioner’s case - Violation of principles of natural justice - HELD THAT:- The petitioner ought to have been given notice before the impugned attachment orders were issued to the depository participants and/or to NSDL.
The depository participants, viz., Kotak Mahindra Bank Limited, Geojit Financial Services Limited, HDFC Bank Limited, Religare Broking Limited are hereby informed that the attachment orders have been quashed and set aside.
Petition disposed off.
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2024 (9) TMI 1285
Review petition under Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure, 1908 - mistake apparent on the face of record or not - HELD THAT:- The petitioner has sought for review of the impugned order in this review petition mainly on the ground of some mistake or error apparent on the face of record, but it is claimed by the review-petitioner that the issue involved is not covered by the judgment passed in M/S. LAXMI CONSTRUCTION VERSUS STATE TAX OFFICER, CT & GST CIRCLE, BARBIL. [2024 (5) TMI 1214 - ORISSA HIGH COURT].
It is hardly disputed by the learned counsel for the parties that the impugned order was passed by this Court in presence of the present learned arguing counsels, but no objection was ever raised when such order was passed by this Court which is reflected in the rival submissions as recorded in the impugned order passed in the writ petition and, therefore, the impugned order, which was passed clearly demonstrates and reflects that the impugned order has been passed in their presence, but subsequently, the petitioner has come up before this Court seeking review of the impugned order on the ground that there is mistake or error apparent on the face of record.
Since the order sought to be reviewed has been passed in the presence of the learned counsel for the parties without any objection and the order impugned in the writ petition being appealable one, this Court does not see any reason to hold that there is mistake or error apparent on the face of the record so as to make the impugned order liable for review.
Thus, no grounds for review of the impugned order having made out by the petitioner, the present Review Petition lacks merit and is liable to be dismissed - the review petition being devoid of merit stands dismissed.
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2024 (9) TMI 1284
Refund of the Input Tax Credit (ITC) accumulated due to Inverted Tax Structure - Circular No.135/15/2020-GST - HELD THAT:- The Division Bench of this court in the case of BAKER HUGHES ASIA PACIFIC LIMITED VERSUS UNION OF INDIA, THE STATE OF RAJASTHAN, THE DEPUTY COMMISSIONER, STATE TAX, CIRCLE BARMER, RAJASTHAN, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS [2022 (7) TMI 73 - RAJASTHAN HIGH COURT], while dealing with the challenge of the Circular No.135/15/2020-GST held it to be in conflict with Section 54 (3)(ii) of the Act. It was also considered that claim of refund of ITC was prior to date of issuance of the Circular.
The additional reason given shall not nullify the fact that the Circular had not stood the judicial scrutiny. The Appellate Authority has allowed the appeal solely relying upon the Circular No.135/15/2020-GST. Consequently, the impugned order is set aside.
The matter is remitted back to the Appellate Authority to decide the appeal afresh in accordance with law - petition allowed by way of remand.
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2024 (9) TMI 1283
Change in classification of imported goods supplied on ships - Applicability of GST rate under notification No. 1/2017-Central Tax (Rate) - HELD THAT:- The applicant states that the goods/spares which consequent to its imports are supplied on ships are mostly essential part of ship to make it sea worthy. As far as this claim goes, the HSN explanatory notes of chapter 89 under which the applicant wants his goods to be classified after the imports are made under various tariff items, which states that contrary to the provisions relating to the transport equipment falling in other Chapters of Section XVII, this Chapter excludes all separately presented parts (other than hulls) and accessories of vessels or floating structures even if they are clearly identifiable as such. Such parts and accessories are classified in the appropriate headings elsewhere in the nomenclature.
The Hon’ble CESTAT in its order dated 10.3.2005 [2005 (3) TMI 627 - CESTAT, CHENNAI], had framed the question to be decided as to whether the subject equipment’s which were declared as ‘ship spares’ for repairs of ocean going vessels are covered by the description of goods under SI. No. 227 of table annexed to notification No 23/1998-Cus. As is evident, the facts of the case & the question raised being different, the reliance placed by the applicant is not tenable, as far as the present dispute is concerned.
Thus, as far as classification of the goods when supplied by the applicant as is mentioned in Annexure l-A is concerned, it would not change i.e. the classification would remain same as mentioned in the bill of entry filed before Customs. The goods when supplied by the applicant, post importation would be classified under the same chapter, heading, sub heading and tariff item under which it was classified by Customs and on which IGST was discharged during the course of import of the said goods.
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2024 (9) TMI 1237
Correctness and legality of the order passed by the Jaipur Bench of the Rajasthan High Court - absence of the appellant's counsel during the proceedings - violation of principles of natural justice - HELD THAT:- No doubt, the High Court has noted that the counsel for the appellant did not appear before the High Court on certain dates. However, when the matter was called and reserved on 29.04.2024 and the judgment has been pronounced on 25.072024, in between the matter was taken up on 18.07.2024 on which date the counsel for the appellant herein did not appear as such. It is not known as to why after the case was reserved for orders on 29.04.2024 it was once again listed on 18.07.2024. On that day at least, the counsel for the appellant could have been heard. If he was absent on that day, an opportunity ought to have been given with possibly a warning to the appellant to ensure that his counsel was present on the next date of hearing. However, we find that on 18.07.2024, possibly the matter was again reserved and on 25.07.2024, the impugned order has been passed.
The fact remains that the counsel for the appellant herein who had the advantage of an order of bail in his favour granted by the trial Court, was not heard in the matter and the impugned order of cancellation of bail was passed without hearing the counsel for the appellant herein.
The impugned order is set aside, the matter is remanded to the High Court. The High Court to re-consider the application filed by the respondent herein with regard to the cancellation of bail granted to the appellant herein. It is needless to observe that reasonable opportunity would be given to both sides for advancing their arguments on the said application. The appellant shall ensure that his counsel is present on the next date of hearing and not procrastinate the matter all over again.
Appeal allowed.
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2024 (9) TMI 1236
Supervisory jurisdiction or under the original jurisdiction under the Constitution of India - Concurrent jurisdiction of State and Central GST authorities - violation of Article 14 of the Constitution of India - blocking of Input Tax Credit - HELD THAT:- Section 6 (2) (b) of the Act treats the empowered officers under the SGTS/UGST Act at the central level to be at par and does not prescribe for transfer of investigation of the proceedings from State authority to the Central authority or vice-versa - The object of Section 6(2)(b) of the Act is to avoid multiple proceedings by the Sales Tax Officer and Central Tax Officer on the same subject matter and the Rules of purposive interpretation requires Section 6(2)(b) of the Act to be read in light of this object.
It would be evident from the Circular issued by the Ministry of Finance/ Department of Revenue, dated 05.10.2018 that central government itself has acknowledged that once the officer of the State authority has initiated action, it would be the proper officer who would then conduct further proceedings under the Act. The import of the aforesaid Circular dated 5.10.2018 is to be understood to mean that when an inquiry is conducted by a proper officer of the State, an investigation is required to be done by the Central Tax Officer, the Central Tax Officer would exercise the said power for the purpose of investigation. However, it would not mean that the proceedings being conducted by the State Tax Officer would also be transferred to the Central Tax Officer and the proceedings as initiated earlier point of time would rather continue with that authority that initially commence the proceedings.
Thus, it would be evidently clear from the aforesaid circular(s) that the State and Central Governments have been extended the same powers under the CGST and SGST Act and if one of the officers has already initiated proceedings, the same cannot be transferred to another and he alone is to issue process under the Act and take it to its logical end.
The word “subject-matter” used in Section 6(2)(b) of the Act would mean, “the nature of proceedings”. In the present case, it would thus mean the proceedings initiated prior at any point of time vide Annexure P-1 by respondent No. 1 and, therefore, for the same subject matter, respondent No. 2 cannot be allowed to initiate proceedings. Such action, if allowed, would be contrary to the provisions contained in Section 6(2)(b) of the Act.
There are merit in this petition and the same is accordingly allowed and the Blocked Credit Ledger dated 16.05.2024, popped up on the online web portal on 20.05.2024, passed by respondent No. 2 and the summons dated 16.03.2024 issued by respondent No. 2, are accordingly quashed and set aside - petition allowed.
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2024 (9) TMI 1235
Cancellation of GST registration of petitioner - no opportunity of hearing was given to the petitioner - violation of principles of natural justice - HELD THAT:- On perusal of the order, it shows that no reason has been assigned while passing the impugned order.
The Division Bench of this Court in the case of SURENDRA BAHADUR SINGH VERSUS STATE OF U.P. THRU. PRIN. SECY. COMMERCIAL TAX (GST) LKO. AND 2 OTHERS [2023 (8) TMI 1262 - ALLAHABAD HIGH COURT] has held 'In the present case from the perusal of the order dated 07.01.2023, clearly there is no reason ascribed to take such a harsh action of cancellation of registration. In view of the order being without any application of mind, the same does not satisfy the test of Article 14 of the Constitution of India, as such, the impugned order dated 07.01.2023 (Annexure - 2) is set aside. The petition is accordingly allowed.'
In view of the facts and circumstances of the case as well as law laid down by this Court, the impugned orders cannot be sustained in the eyes of law and same are hereby quashed.
The writ petition succeeds and is allowed.
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2024 (9) TMI 1234
Appeal dismissed on the ground of limitation - original order confirming the demand u/s 74 of the GST Act was passed without providing any opportunity of hearing to the petitioner - HELD THAT:- It is admitted fact that the appeal has been dismissed on the ground of limitation. Learned counsel for the petitioner has relied upon the notification dated 02.11.2023 (Annexure No. 1 to the supplementary affidavit. On close scrutiny of the said notification, it is clear that if taxable person could not file appeal against the order passed by the Proper Officer on or before 31.03.2023 under sections 73 or 74 of the GST Act and if the appeal is preferred on or before 31.01.2024, the same will be considered on merit without taking recourse to the limitation. In the case in hand, the impugned order has been passed on 20.07.2023, much after the date mentioned in the aforesaid notification, i.e., 31.03.2023. Therefore, the said notification is of no aid to the petitioner.
Further, the judgement cited by the learned counsel for the petitioner in the case of M/S SUMIT ENTERPRISES OFFICE AT BADEL NAWABGANJ BARABANKI THRU. PROPRIETOR ATUL KUMAR VERSUS STATE OF U.P. THRU. PRIN. SECY. MINISTRY OF FINANCE LKO. AND 2 OTHERS [2023 (10) TMI 342 - ALLAHABAD HIGH COURT] nowhere deals with condoning the delay; whereby the appeal has been dismissed on the ground of limitation and therefore, the same is also of no aid to the petitioner.
In the above judgement, it has been specifically held that delay in filing the appeal cannot be condoned beyond the prescribed period of limitation in the Act.
This Court does not find any merit in these writ petitions - Petition dismissed.
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2024 (9) TMI 1233
Default committed by the petitioner in relation to the filing of returns beyond the prescribed period - benefit of insertion of sub-Section (5) to Section 16 of the CGST Act, 2017 - HELD THAT:- Having considered the materials on record and taking note of the provisions contained in Section 16(5) of the CGST Act, 2017 which has been inserted vide notification dated 16th August 2024, the present writ petition is required to be heard.
Since, the petitioner has been able to make out a prima facie case, the order dated 26th April 2024 for the tax period 2018-19 forming subject matter of challenge in the instant writ petition, shall remain stayed till the next date of hearing - List this matter under the same heading in the combined monthly list of December 2024.
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2024 (9) TMI 1232
Cancellation of GST registration of Petitioner’s firm - time limitation - HELD THAT:- This is quite well known a fact that the object behind enacting the CGST/RGST Act, 2017 is to levy taxes on manufacture of certain goods in the form of Central Excise Duty and to levy tax by the State Governments on retail sales in the form of Value-added Tax, Entry Tax, Luxury Tax etc. The legislative intention to facilitate commercial and business activities is reflected in the several provisions under the CGST/RGST Act; one of such provisions is contained under Section 30. May be the statutory provisions of limitation under Section 107 of the CGST/RGST would bind the statutory authorities which cannot condone the delay except the circumstances envisaged thereunder, but then, such limitations are not binding on the writ Court.
The writ Court having regard to the facts and circumstances in the case and keeping in mind that a right to appeal provided under the statute should normally be decided on merits may condone the delay and direct the statutory authority to entertain the appeal beyond the period of limitation.
The present writ petition is entertained and the appeal preferred by the petitioner-firm vide Reference Number: ZA080323041640Y is restored to its original records.
Petition allowed.
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2024 (9) TMI 1231
Violation of the principles of natural justice - petitioner did not receive the SCN pursuant to which the impugned order was passed - petitioner states that the impugned SCNs were projected on the portal under the tab ‘Additional Notices and Orders’ and therefore, the petitioner had no reason to access the same - HELD THAT:- The present petition is allowed and the impugned order is set aside. The petitioner may file reply to the impugned SCNs along with all relevant documents relied upon by it within a period of two weeks from date. The adjudicating authority shall 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 1230
Imposition of time limit for availment of Input Tax Credit - violative of Article 14, Article 19 (1) (g) and Article 300A of the Constitution of India - HELD THAT:- It is evident that the insertion of the aforesaid provision has been made effective from the 1st day of July, 2017, whereby and whereunder, it has been provided that “Notwithstanding anything contained in sub-section (4), in respect of an invoice or debit note for supply of goods or services or both pertaining to the Financial Years 2017-18, 2018-19, 2019-20 and 2020-21, the registered person shall be entitled to take input tax credit in any return under section 39 which is filed upto the thirtieth day of November, 2021”.
It is, thus, evident that the decision which has been taken as impugned in the present writ petition was in absence of the consideration by following the stipulation made in sub-section (5) of Section 16 which has been made effective w.e.f. 1st day of July, 2017.
Considering the implication of insertion of sub-section (5) under Section 16 of the CGST Act, this Court is of the view that the matter needs to be considered afresh - the matter is remitted before the authority to pass afresh order taking into consideration the implication of sub-section (5) of Section 16 of the CGST Act.
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2024 (9) TMI 1229
Permission to withdraw writ petition - discrepancy in tax period mentioned in the show cause notice and the impugned order - HELD THAT:- The writ petitioner seeks leave of this Court to withdraw the instant petition with a liberty to file an appeal as provided under Section 107 of the CGST. It has been submitted that the appeal will be filed within a period of two weeks.
The instant writ petition is being disposed of by giving liberty to the petitioner to file the appeal within a period of two weeks.
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2024 (9) TMI 1228
Violation of principles of natural justice - unreasoned impugned order - certain discrepancies in the input tax credit - HELD THAT:- Undisputedly, the impugned order does not deal with the petitioner’s contentions. The petitioner’s reply was rejected summarily by stating that it was found to be devoid of merits. The impugned order is ex facie unreasoned and, therefore, is liable to be set aside.
The respondents fairly states that the impugned order may be set aside and the matter be remanded to the Adjudicating Authority to consider afresh.
The matter is remanded to the Adjudicating Authority to consider afresh. The Adjudicating Authority shall pass a speaking order after affording the petitioner an opportunity of hearing - Petition disposed off by way of remand.
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2024 (9) TMI 1227
Cancellation of petitioner’s GST registration with retrospective effect from 07.02.2022 - petitioner did not respond to the show cause notice or appear before the officer - HELD THAT:- The petitioner neither responded to the SCN dated 08.11.2023, nor appeared before the concerned officer on 14.11.2023 - the proper officer had issued the impugned order.
The petitioner has an equally efficacious appellate remedy against the impugned order and therefore, it is not considered apposite to entertain the said petition - petition disposed off.
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