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Showing 201 to 220 of 324 Records
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2025 (3) TMI 124
Liability to pay service tax - full consideration received for providing the ‘Manpower Supply Service’, including salary, PF and ESIC - HELD THAT:- The issue raised in the present case is whether the appellant is liable to pay service tax on the full consideration received for providing the ‘Manpower Supply Service’, including salary, PF and ESIC, which has been considered in the case of appellant themselves by the Hon’ble Rajasthan High Court, titled as Bhanwar Lal Gurjar Vs. Commissioner of CGST & Service Tax – Jaipur [2019 (12) TMI 890 - RAJASTHAN HIGH COURT], where the Division Bench considered the same issue and following the decision of the Hon’ble Apex Court in the case of Union of India Vs. Intercontinental Consultants and Technocrats Pvt. Ltd. [2018 (3) TMI 357 - SUPREME COURT].
The period involved in the show cause notice is April 2012 to July 2012 and the demand has been made by virtue of Section 67 of the Act read with Rule 5 of the Service Tax (Determination of Value) Rules, 2006. In view of the law laid down by the Hon’ble Apex court in Intercontinental Consultants and Technocrats Pvt. Ltd., the demand made under Section 67 is not sustainable as it does not include the reimbursable expenses for providing such service during the period in question.
Conclusion - The appellant was not liable to pay service tax on the full consideration received for providing 'Manpower Supply Service' and that the demand made under Section 67 was not sustainable.
There are no merits in the impugned order and the same is hereby set aside - appeal allowed.
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2025 (3) TMI 123
Classification of service - Works Contract Service (WCS) - respondent had received payments from their customers but not shown the taxable value in their ST-3 returns - HELD THAT:- This Tribunal taking note of the CBEC Circular No.108/02/2009-ST dated 29.01.2009 in CC,CE&ST Vs. Pragati Edifice Pvt. Ltd. [2019 (9) TMI 792 - CESTAT HYDERABAD] case has held that 'it is well settled legal position that whether the service is rendered as service simpliciter or as a works contract, no Service Tax can be levied on construction of residential complex prior to 1-7-2010.'
Conclusion - i) Construction services completed before the execution of a sale deed, where the property is transferred post-construction, are considered self-service and not subject to service tax prior to 01.07.2010. ii) The CBEC Circular No.108/02/2009-ST applies to cases where construction is completed before sale, exempting such transactions from service tax.
There are no merit in the appeal filed by the Revenue - Revenue’s appeal is dismissed.
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2025 (3) TMI 122
Short payment of service tax - Exemption from services tax - export of services or not - appellant has received the amount which was not reflected in the ST-3 returns for the relevant period (2015-16) - extended period of limitation - penalties - HELD THAT:- In the present case, it is observed that appellant is engaged in providing Goods Transport Agent services. They issue consignment notes for transportation of goods from India to Nepal for which payments are received by him from overseas clients in India, who undisputedly are corporate entities. Thus, the liability to pay service tax is on the consignee. By referring to provisio to the said rule Commissioner (Appeal) has concluded that the liability to pay service tax falls on the appellant - While coming to the said conclusions impugned order also rejected the arguments advanced by the appellant vis a vis Notification No 30/2012-ST which provides for payment of service tax on reverse charge basis by the person liable to pay freight.
From perusal of the documents i.e. consignment note, it is quite evident that both consigner and consignee are corporate entity. The freight in the present case is paid by the consignee located outside India, in Nepal. The liability to pay service tax in such case would be on consignee and not on GTA as per notification no.30/2012 dated 20.06.2012 - From Rule 10 of the Place of Provision of Services Rule, 2012, it is evident that in case of Good Transport Agency Service the place of provision of service is location of the person liable to pay service tax. In the present case the person liable to pay service tax is the consignor or consignee as the case may be and the location of the said person will be the place of provision of service.
Extended period of limitation - HELD THAT:- By combined and harmonious reading of the Rule 2(1) (d) of Service Tax Rules, 1994, Rule 10 of Place of Provision of Services Rules, 2012 and Notification No 30/2012-ST, it is found that appellant was having a reason to bonafide belief that no service tax was payable by him in respect of service provided by him. As it is found that appellant entertained a belief which is on the basis of the notification and the documents, there are no merits in invocation of extended period for making this demand.
Penalties - HELD THAT:- As the demand cannot stand in the test of limitation, the same is set aside. Penalties imposed upon the appellant are also set aside.
Conclusion - i) In the present case the person liable to pay service tax is the consignor or consignee as the case may be and the location of the said person will be the place of provision of service. ii) As it is found that appellant entertained a belief which is on the basis of the notification and the documents, there are no merits in invocation of extended period for making this demand. iii) Penalties imposed upon the appellant are also set aside.
Appeal allowed.
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2025 (3) TMI 121
Non/short-payment of service tax - it is alleged that the appellant had received substantial amounts towards the provision of taxable services, but has not discharged due service tax - recovery with interest and penalties - HELD THAT:- Undisputedly the services provided by the appellant qualify to be treated as export of services. Thus, from the impugned order it is evident that Commissioner (Appeal) has himself dropped the demands in respect of all the services provided for which the BRC’s were produced. However in respect of the demands where the BRC’s were not produced he proceeded to uphold the demand made along with the interest and penalties.
The appellant have stated and produced a copy of certificate from Chartered Accountant to the effect that the amount which i.e. Rs.2,49,41,667/- was also received in foreign exchange - By the above certificate, it has been certified that appellant have received the amount also in convertible foreign exchange through banking channels.
As this certificate was not produced before the Commissioner (Appeal) at the time of adjudication, it is deemed fit to remand the matter back to Commissioner (Appeals) for re-consideration of differential demand confirmed.
Conclusion - i) The services provided by the appellant qualified as export of services, and demands were dropped where supporting documents were produced. However, demands without supporting documents were upheld along with interest and penalties. ii) The appellant presented a certificate from a Chartered Accountant during the appeal, certifying that a specific amount was received in foreign exchange through banking channels, which was not produced before the Commissioner (Appeals). The Tribunal deemed it fit to remand the matter back to the Commissioner (Appeals) for reconsideration in light of the new evidence.
Appeal allowed by way of remand.
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2025 (3) TMI 120
Condonation of delay in filing appeal - appeal rejected on the grounds of limitation holding that the appeal filed on 16.08.2022 is beyond permissible condonable time limit of one month - HELD THAT:- The impugned order has been passed on the presumption by the learned Commissioner (Appeals) that the Order-in-Original dated 23.12.2021 was served on the Appellant, on the basis of the evidence of dispatch and the contention of the Department that such dispatch was not returned back by the Post office.
The learned Commissioner have erred in making the presumption in the absence of proof of delivery not produced by the Department. During the relevant time as per the provisions of Section 37C(1)(a), any order passed under the Act was to be served through Registered Post or Speed Post to the person for whom it was entitled or his authorized agent with acknowledgement due as proof of delivery. Thus, it was incumbent upon the Revenue to produce evidence of delivery or service which is the mandate as per the Section 37C(1)(a) of the Act. In absence of proof of delivery of order dated 23.12.2021, the same cannot be deemed as served on the Appellant as has been held by the Hon’ble Rajasthan High Court in the case of R. P. Casting Pvt. Ltd. [2016 (6) TMI 996 - RAJASTHAN HIGH COURT].
Conclusion - In absence of proof of delivery, it is held that the presumption is not sustainable and accordingly the appeal of the Appellant cannot be held as barred by limitation.
It is deemed appropriate to remand the matter to the learned Commissioner (Appeals) to decide the appeal on merits after giving proper opportunity to the Appellant without further visiting the aspect of limitation.
Appeal allowed by way of remand.
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2025 (3) TMI 119
Levy of penalty u/r 26 of Central Excise Rules, 2002 - illicit removal of LLDPE and HDPE without payment of duty - appellant abetted M/s. Vraj Packaging, whose case has been settled under SVLDRS-2019 - HELD THAT:- When the demand in the case of main appellant M/s. Vraj packaging Pvt. Limited has been settled under SVLDRS-2019 vide order No. A/11013/2021 dated 10.03.2021, the case of co-noticee for penalty will not sustain.
The same view has been taken by this Tribunal in the case of M/s. Siemens Limited [2023 (5) TMI 377 - CESTAT MUMBAI] that penalty on the co-noticee will not sustain when the main party’s case of confirmed demand is settled under SVLDRS-2019. Therefore, following the above precedent, the penalty imposed upon the appellant in this case is not sustainable.
The impugned order-in-appeal set aside - appeal allowed.
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2025 (3) TMI 118
Time limitation for filing refund claim - whether the refund claim was filed within one year from the last date of the order, from which refund claim pertains? - Section 11B of the Central Excise Act, 1944 - HELD THAT:- As Commissioner (Appeals) has specifically acknowledged that in the entire case refund claim was being filed within one year from the last date of the order, from which refund claim pertains.
The issue is squarely covered by the various precedent decisions. In case of Suretex Prophylactics India Pvt. Ltd [2020 (5) TMI 225 - KARNATAKA HIGH COURT], Hon’ble Karnataka High Court has observed that 'time-limit has to be computed from the last date of the last month of the quarter which would be the relevant date for the purposes of examining if the claim is filed within the limitation prescribed under Section 11B or otherwise.'
In the case of M/s Span Infotech (India) Pvt. Ltd. [2018 (2) TMI 946 - CESTAT BANGALORE] Larger Bench of this Tribunal has observed that 'we conclude that in respect of export of services, the relevant date for purposes of deciding the time limit for consideration of refund claims under Rule 5 of the CCR may be taken as the end of the quarter in which the FIRC is received, in cases where the refund claims are filed on a quarterly basis.'
Conclusion - The refund claims were filed within the limitation period specified under Section 11B.
Appeal of Revenue dismissed.
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2025 (3) TMI 117
Invocation of Extended period of limitation - suppression of fact of receipt of raw material free of cost from the supplier - fact of non-inclusion of the value of the said raw material in the value of final products manufactured by them suppressed from the knowledge of the department with intent to evade payment of central excise duty - HELD THAT:- The respondent were manufacturing ZDF for the specific needs of Nuclear Fuel Complex, Hyderabad, a unit of Department of Atomic Energy, Government of India, who manufactures Zirconium Alloy Tubes which are further used for making Nuclear Fuel Bundles, containing Uranium Oxide pellets and are used in the Nuclear Reactors by the Nuclear Power Corporation managed by Government of India for generation of power. Further, it is found that as per the purchase order, the respondent were only paying the central excise duty on the job work charge and not including the free supply of sand made by Nuclear Fuel Complex, Hyderabad and as per the department, the said free supply should be included in the transaction value for the purpose of payment of duty.
The learned Commissioner, after analyzing all the submissions of the party, vide detailed impugned order, has confirmed the demand only for the normal period and has come to the conclusion that extended period of limitation cannot be invoked as the respondent had a bona fide belief that the levy on free supply is not to be included in the transaction value. Further, it is also found that the invocation of extended period of limitation is totally unwarranted in the present case because the Revenue has not been able to establish any of the ingredients mentioned in Section 11A(1) of the Act for invoking the extended period of limitation. Further, the respondent had acted bona fidely as per the clauses of the purchase orders received by them from the Regional Director, HRPU, Nuclear Fuel Complex, Hyderabad, a unit of the Department of Atomic Energy, Government of India and there was no wilful act or omission of any kind whatsoever on their part leading to mens rea for invoking the penal provisions.
Conclusion - The invocation of extended period of limitation is totally unwarranted in the present case because the Revenue has not been able to establish any of the ingredients mentioned in Section 11A(1) of the Act for invoking the extended period of limitation.
There is no infirmity in the impugned order - appeal of Revenue dismissed.
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2025 (3) TMI 116
Entitlement to the benefit of prospective effect as contemplated under Section 56 (2) of the MVAT Act - Appellant Trust is a deemed dealer under section 2 (8) of MVAT Act 2002 liable for registration and payment of tax under MVAT Act or not - whether it is not necessary for levy of Sales Tax, that the Appellant must carry on ‘business’ in the capacity of the dealer? - sale of movable or immovable property, to be ascertained by the field officers at the appropriate stage.
Whther the appellant is a 'deemed dealer' as contemplated under the explanation to section 2 (8) of the MVAT Act? - HELD THAT:- The Appellant became the full and absolute owner of the loans and the stressed assets [by virtue of the Transfer Deed dated 30th September 2004] and the only person legally entitled to recover those loans or any part thereof. To ensure that the Appellant could in fact avail of quick remedies of recovery under the provisions of the RDDB Act, 1993, as well as the SARFAESI Act, 2002, the Government, in exercise of powers conferred by sub-clause (ii) of clause (h) of Section 2 of the RDDB Act, 1993 specified/notified the Appellant to be a financial institution for the purposes of the said clause. On perusing the clauses of the Trust Deed as well as the Transfer Deed, it is clear that the objects of the Appellant Trust were for recovering debts of defaulting borrowers by disposing of the stressed assets inter alia under the provisions of the SARFAESI Act, 2002.
The deemed dealer provision under the MVAT Act becomes operational when the categories thereunder sell any goods, whether by auction or otherwise. The Explanation which introduces the deeming provision further stipulates that the deemed dealer provision would operate notwithstanding anything contained in Section 2 (4) [the definition of the word “business”] or any other provisions of the MVAT Act - The Explanation in clear terms provides that the enumerated entities would be deemed to be a “dealer” when they sell any goods, by auction or otherwise. Thus, the definition itself specifies that the sale of goods, whether by auction or otherwise would render the person/body/entities enlisted in the clauses to the Explanation to be a dealer.
Whether the Appellant would fall within any of the ten clauses as set out in the Explanation to Section 2 (8) of the MVAT Act? - HELD THAT:- Clause (x) of the Explanation clearly stipulates that any corporation, company, body or authority owned or constituted by or subject to the administrative control of the Central Government, any State Government or any local authority, would be deemed to be a dealer for the purposes of the MVAT Act. It can hardly be disputed that the Appellant is a body constituted by the Central Government. This is abundantly clear from the Trust Deed which in fact constitutes and sets up the Appellant as a Trust and the settlor of this Trust is the Central Government. The Appellant therefore is clearly a body constituted by the Central Government. Once this is the case, we find that the Appellant is certainly a deemed dealer for the purposes of the MVAT Act.
Denial of benefit of prospective effect to the DDQ order (u/s 56(2) of the MVAT Act) - HELD THAT:- Under Section 56 (1), if any question arises regarding, inter alia, a person being a dealer, or whether such person is required to be registered as a dealer, or any particular thing done to any goods amounts to or results in the manufacture of goods, or any transaction is a sale or purchase etc., and such a question/s is posed to the Commissioner, the Commissioner shall determine such question/s in terms of Section 56 (1) of the MVAT Act. Section 56 (2) gives the power and discretion to the Commissioner to direct that the determination made by him under sub-section (1) shall not affect the liability under the MVAT Act in respect of any sale or purchase effected prior to the determination - the Commissioner has the power and discretion to put a quietus to transactions entered into prior to his DDQ Order. It is, of course, needless to clarify that this discretion has to be exercised on sound judicial principles and cannot be on the ipse dixit of the Commissioner.
Whether the Petitioner had made out a case for getting the benefit of prospective effect to the DDQ Order? - HELD THAT:- There is a force in the argument of Ms. Badheka that by virtue of Article 285 of the Constitution of India the Appellant was of the bona fide opinion that it being set up and constituted by the Central Government, and all the proceeds that it recovers from sale of stressed assets are to go to the Central Government, coupled with the fact that if for any reason the stressed assets are not sold during the tenure of the Trust, the same would vest in the Central Government, it was not liable to collect any tax on the sale of securities of the stressed assets - the Appellant ought to have been extended the benefit of prospective effect to the DDQ Order.
Conclusion - The Appellant is a deemed dealer under the MVAT Act and liable for sales tax on the sale of movable properties. However, the Appellant is granted prospective effect to the DDQ Order, exempting it from liability for past transactions.
Appeal disposed off.
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2025 (3) TMI 115
Calculation of limitation in filing a complaint case under the Consumer Protection Act, 2019 - six months are required to be counted from the date of the indemnity cum undertaking, i.e. 10th January 2015 or not - HELD THAT:- The initial cause of action indeed arose in July 2015 after the six-month period expired, however, the Court cannot be amiss to the fact that the parties had been pursuing the matter with the respondent by way of letters, meetings, and even with the escrow agent, who, in turn, did his own back and forth with the owner, before finally releasing the flats in escrow in favour of the appellants. Further, as can be seen from the reliefs extracted supra, what has been claimed is the security of the title they received upon the respondent's default. The complaint case has not been filed seeking the flats in escrow for which the cause of action did arise on 10th July 2015, and hence the same limitation cannot be applied to a subsequent situation, which is that the appellants already have the flats with them. They only seek that the same be registered in their name and not alienated to any third party henceforth.
The NCDRC have committed an error on the face of record. Finding the view taken by it to be ex-facie erroneous, the impugned order set aside with particulars mentioned in paragraph 1 of this order. The complaint filed by the appellant is within time.
Appeal disposed off.
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2025 (3) TMI 114
Ownership and possession of suit property - right, title, or interest in the subject matter of the agency of holder of the General Power of Attorney (GPA) along with an Agreement to Sell, to execute the registered sale deed - legality of registered sale deed.
Relationship between the Executant and Holder of General Power of Attorney - HELD THAT:- A power of attorney derives its basic principles from Chapter X of the Contract Act which provides for "Agency" along with Sections 1A and 2 respectively of the Powers of Attorney Act, 1882. Agency is a fiduciary relationship between two persons, where one explicitly or implicitly agrees that the other will act on their behalf to influence their legal relations with third parties, and the other similarly agrees to act in this capacity or does so based on an agreement. The relationship between the executant of a general power of attorney and the holder of the power is one of principal and agent. A principal is bound by the acts done by an agent or the contracts made by him on behalf of the principal. Likewise, power of attorney in the nature of contract of agency authorizes the holder to do acts specified by the executant, or represent the executant in dealings with third persons.
In the case of Syed Abdul Khader v. Rami Reddy & Ors., [1978 (11) TMI 158 - SUPREME COURT], this Court held that the relation between the donor of the power and the donee of the power is one of the principal and agent having its genesis in a contract. It further observed that the term "agency" refers to the relationship in which one person has the authority or ability to establish legal relations between a principal and third parties. This relationship arises when a person, known as the agent, has the authority to act on behalf of another, called the principal, and agrees to do so.
In State of Rajasthan v. Basant Nahata, [2005 (9) TMI 620 - SUPREME COURT], while dealing with the challenge to the constitutional validity of Section 22A of the Registration Act, it was held that a deed of power of attorney is a document of convenience empowering the agent to act for the principal or manage the affairs of the principal.
From the above exposition of law, it is settled that power of attorney is a creation of an agency by which the grantor/donor/executant authorizes the grantee/donee/holder/attorney to do the acts specified on his behalf, which will be binding on the executant as if the acts were done by him - In the present case, the original owner, executant of the POA, holds the position of a principal. Whereas, the holder of the POA is an agent. There is no gainsaying in the fact that the original owner by executing the POA dated 04.04.1986 in favour of the holder entered into a principal-agent relationship with each other.
Independent Reading of the General Power of Attorney and the Agreement to Sell - 'Interest' in Power of Attorney - HELD THAT:- In the present case, it is evident from para 1 of the GPA executed by the original owner in favor of the holder that the POA was to look after, maintain, manage the Scheduled Property. Para 2 states that the attorney can enter into any agreement with any person with respect to the Scheduled Property for any amount, receive advance amount, to execute deeds in favor of such persons, issue proper discharge - Lastly, para 8 states that the attorney is generally entitled to do all acts required in respect of the Suit Property which are not specifically mentioned and that the GPA is irrevocable.
Nature of Power of Attorney - HELD THAT:- The import of the word "general" in a POA refers to the power granted concerning the subject matter. The test to determine the nature of POA is the subject matter for which it has been executed. The nomenclature of the POA does not determine its nature. Even a POA termed as a 'general power of attorney' may confer powers that are special in relation to the subject matter. Likewise, a 'special power of attorney' may confer powers that are general in nature concerning the subject matter. The essence lies in the power and not in the subject-matter.
A three-Judge Bench of this Court settled the rules of interpretation applicable to power of attorney in Timblo Irmaos Ltd., Margo v. Jorge Anibal Matos Sequeira, [1976 (12) TMI 193 - SUPREME COURT]. It was held that words used in a POA must be interpreted in the context of the whole; the purpose of the powers conferred must then be examined through the circumstances in which it was executed; and finally, necessary powers must be implied.
Further, a mere use of the word 'irrevocable' in a POA does not make the POA irrevocable. If the POA is not coupled with interest, no extraneous expression can make it irrevocable. At the same time, even if there is no expression to the effect that the POA is irrevocable but the reading of the document indicates that it is a POA coupled with interest, it would be irrevocable.
Applying the above exposition of law in the facts of the present case, it is evident from the tenor of POA that is not irrevocable as it was not executed to effectuate security or to secure interest of the agent. The holder of POA could not be said to have an interest in the subject-matter of the agency and mere use of the word 'irrevocable' in a POA would not make the POA irrevocable. The High Court was right in holding that the holder did not have any interest in the POA. When the High Court observes that the power of attorney does not explicitly state the reason for its execution, it implies that its nature is general rather than special.
From the independent reading of the POA and the agreement to sell, the submissions of the appellants fail on two grounds, first, the POA is general in nature and does not secure agent's right in the subject-matter of the agency, and secondly, an agreement to sell simpliciter does not confer ownership in the immovable property so as to transfer a better title to anyone else.
Combined Reading of the General Power of Attorney and the Agreement to Sell - HELD THAT:- Section 17(1)(b) prescribes that any document which purports or intends to create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property is compulsorily registerable. Whereas, Section 49 prescribes that the documents which are required to be registered under Section 17 will not affect any immovable property unless it has been registered - Even from the combined reading of the POA and the agreement to sell, the submission of the appellants fails as combined reading of the two documents would mean that by executing the POA along with agreement to sell, the holder had an interest in the immovable property. If interest had been transferred by way of a written document, it had to be compulsorily registered as per Section 17(1)(b) of the Registration Act. The law recognizes two modes of transfer by sale, first, through a registered instrument, and second, by delivery of property if its value is less than Rs. 100/-.
The High Court rightly held that even though the GPA and the agreement to sell were contemporaneous documents executed by the original owner in favour of the holder, this alone cannot be a factor to reach the conclusion that she had an interest in the POA - even though the GPA and the agreement to sell were contemporaneous documents executed by the original owner in favour of the same beneficiary, this cannot be the sole factor to conclude that she had an interest in the subject-matter. Even if such an argument were to persuade this Court, the document must have been registered as per Section 17(1)(b) of the Registration Act. In the absence of such registration, it would not be open for the holder of the POA to content that she had a valid right, title and interest in the immovable property to execute the registered sale deed in favour of appellant no. 2.
Effect of Suit for Injunction simpliciter - HELD THAT:- Where the question of title is "directly and substantially" in issue in a suit for injunction, and where a finding on an issue of title is necessary for granting the injunction, with a specific issue on title raised and framed, a specific prayer for a declaration of title is not necessary. As a result, a second suit would be barred when facts regarding title have been pleaded and decided by the Trial Court. In the present suit, the findings on possession rest solely on the findings on title. The Trial Court framed a categorical issue on the ownership of the appellants herein. To summarize, where a finding on title is necessary for granting an injunction and has been substantially dealt with by the Trial Court in a suit for injunction, a direct and specific prayer for a declaration of title is not a necessity.
Conclusion - The GPA and the agreement to sell were contemporaneous documents executed by the original owner in favor of the holder, but this alone cannot be a factor to conclude that she had an interest in the POA. Even if such an argument were to persuade the Court, the document must have been registered as per Section 17(1)(b) of the Registration Act. The practice of transferring an immovable property via a GPA and agreement to sell has been discouraged.
It is concluded that no error not to speak of any error of law could be said to have been committed by the High Court in passing the impugned judgment - appeal dismissed.
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2025 (3) TMI 113
Jurisdiction of the Civil Court in entertaining the suit having barred either expressly or by necessary implication - challenge to ex parte ad interim order of injunction passed by the Trial Court at the behest of the defendant/respondent who neither appeared in the said suit at the time of passing impugned order nor filed the pleading raising such issue - HELD THAT:- The question often arises when the regulatory authority is not empowered to execute its order or direction as a decree of a Civil Court whether it can exercise such power vested upon the Appellate Tribunal under the said Act. It is no longer res integra that the authority exercises the powers and assumes jurisdiction on the basis of a statute enacted in this regard and cannot travel beyond the peripheral thereof. The moment the legislatures consciously did not incorporate specific provision conferring the power and the jurisdiction in such manner, the regulatory authority cannot assume such jurisdiction.
The exclusion of the jurisdiction of a Civil Court should not be inferred readily except when it is so excluded explicitly or by necessary implication and/or the statute in question provides adequate and satisfactory alternative remedy to a party; in other words, the ouster of Civil Court can only be assumed if the authority under the statute can exercise all powers vested upon the Civil Court. In the event the statute provides that the authority is vested with the power not only to adjudicate the dispute which is capable to be adjudicated by the Civil Court but also to execute the same in the manner as is done by the Civil Court, the exclusion can be inferred by necessary implication in absence of any express provision.
Inspiration in this regard can be drawn from a Division Bench judgment of this Court in case of Mandira Mookerjee vs. District Consumer Disputes Redressal Forum & Ors., [2004 (12) TMI 737 - CALCUTTA HIGH COURT] where an identical issue arose whether the Consumer Forum is competent to pass an order for specific performance of an agreement for sale of an immovable property. It is held that under the Specific Relief Act which recognises the right of the specific performance of a contract available to a party agreed but it does not contain any express provision that it can only be done by the Civil Court and not otherwise. The reference was made to a hypothetical situation where the parties under an agreement agreed to resolve the dispute through private fora i.e. arbitration and the arbitrator was empowered to pass an order for specific performance.
Section 79 of the Act has to be interpreted in such a manner and the moment the jurisdiction of the Civil Court is ousted, it cannot pass any order be it in a form of ex parte, interim or temporary injunction. The Apex Court in Hasham Abbas Sayyad vs. Usman Abbas Sayyad & Ors., [2006 (12) TMI 491 - SUPREME COURT] held that any order passed by an authority lacking the inherent jurisdiction would be regarded as nullity.
Conclusion - RERA Act being a complete Code providing the exhaustive mechanism not only for the adjudication of the disputes, adherence of an obligation of the respective parties but also to execute the same as if it is a decree passed by the Civil Court. It thus excludes the jurisdiction of the Civil Court.
Appeal allowed.
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2025 (3) TMI 112
Entitlement to restoration of the subject property - petitioner has not made a pre-deposit in terms of Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - HELD THAT:- The petitioner does not dispute that the property was mortgaged by the father on 13th April, 2012. The petitioner also does not dispute that the medical document alleging her father’s mental illness or incapacity is dated 22nd August, 2015, i.e., post the creation of the mortgage. This submission alongwith the contention that her share in the said property cannot be put to auction by the bank are all disputed questions of facts which can only be adjudicated by DRT or DRAT. It is apparent from the submissions that the petitioner has stepped into the shoes of the borrower as she is claiming her rights upon the mortgaged property. It is also clear that the respondent no.1/bank has the first charge on the said mortgage property.
It is apparent that the petitioner has to comply with the statutory requirement of making a pre-deposit in terms of Section 18 of the SARFAESI Act. No application seeking waiver of the pre-deposit was filed before the DRAT. In the present petition, there is no averment as to why pre-deposit has not been made by the petitioner. It is trite that pre deposit is mandatory in the absence whereof, the DRAT may not be able to entertain an appeal filed by a party.
Petition dismissed.
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2025 (3) TMI 111
Legality, validity and propriety of the show-cause notices and final orders which admittedly do not contain physical or digital signatures of the Proper Officer - HELD THAT:- There is no ‘head on’ between Sections 73/74 of the GST Act and DRC-01 and DRC-07 and hence we find no merit in the contention of Sri Swaroop Oorilla that since Sections 73/74 of the GST Act are silent about the requirement of digital/physical signature any such requirement in DRC-01 and DRC-07 can be ignored. This is trite that Rules are introduced to translate the scheme of the Act into reality. When there is no difference or ‘head on’ between the Sections and the Rules/Forms, the Rules supplement the Sections and do not supplant it. In this view of the matter, it is constrained to hold that once there exists a specific column earmarked for the signature, the said requirement becomes a statutory requirement. For this reason, the argument that taxation statute must be strictly interpreted based on the judgment of Supreme Court in Dilip Kumar & Co [2018 (7) TMI 1826 - SUPREME COURT (LB)] is of no assistance to the respondents. Instead it supports the contention of the petitioners.
A careful reading of sub-section (1) of Section 160 of the GST Act makes it clear that the assessment, re-assessment, adjudication, review, revision, appeal, rectification, notice, summons and other proceedings will not become invalid for any mistake, defect or omission if in substance and same is in conformity with and according to the intent, purpose and requirement of this Act or any existing law. As noticed above, the requirement of the GST Rules read with Forms is to put the signature on DRC-01 and DRC-07 at specified place. Thus, sub-section (1) does not help the respondents in any way.
A minute reading of this Rule makes it clear like noonday that the Rule mandates and makes it imperative for the Proper Officer to serve the notice/order in the prescribed Forms. At the cost of repetition, the requirement of the Form is to provide signature, name, designation, jurisdiction and address - in every sub-rule of Rule 142 of the GST Rules, the law makers have used the word ‘shall’ for issuance of Statutory Forms which makes the issuance of Forms in prescribed form as mandatory. Since prescribed Forms as per Rule 142 need signature, such requirement must be held to be mandatory. In absence of signature, notice/order cannot be held to be a valid notice/order.
As analyzed, in view of judgment of Supreme Court in M/s. M.M. Rubber and Company [1991 (9) TMI 71 - SUPREME COURT] and Kailasho Devi Burman [1996 (2) TMI 2 - SUPREME COURT], such notices/orders issued without signatures are held to be invalid, the same will not get immunity in the teeth of sub-sections (1) and (2) of Section 160 of the GST Act.
Chapter-II of the IT Act deals with digital signature and electronic signature. The authentification of electronic records is based on fulfillment of requirement of Sections 3 and 5 and we find substance in the argument of Sri Karan Talwar that apart from GST Act, GST Rules and Statutory Forms prescribed thereunder and Sections 3 of the IT Act, make it obligatory for the Proper Officer to put his signature. Section 3A of the IT Act on which Sri Swaroop Oorilla placed reliance does not insulate the notice/order if it does not contain signature of Proper Officer.
From the view point of comity also, it is inclined to interpret the provisions of the GST Act, GST Rules and Statutory Forms prescribed thereunder in the same manner different High Courts have considered it. More-so, when Revenue could not make out any exception based on aspects of per incuriam, sub silentio, obiter dicta or concession, etc. The scheme of the GST Act, Rules and Statutory Forms prescribed thereunder considred and, judgment, the impugned show cause notices and the orders which are not pregnant with the signature of the Proper Officer cannot sustain judicial scrutiny.
Conclusion - The absence of a signature renders the notices/orders invalid.
Petition allowed.
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2025 (3) TMI 110
Challenge to order passed by the respondent under Section 74 of the State Goods and Services Tax Act, 2017 - HELD THAT:- A bare look at the show cause notice dated 12.10.2022 reveals that only indication made is that for the period in question, the difference between GST DRC-01 and GST-3B was Rs. 13,55,943.00/- and that no response to notice under Section 61 of the Act was given and, therefore, the petitioner must deposit a sum of Rs. 13,55,943.00/- as tax along with interest and penalty. The petitioner deposited the tax, whereafter the order impugned under Section 74 of the Act has been passed demanding interest and penalty.
For invoking Section 74 of the Act, the allegations pertaining to suppression etc. are sine qua non in absence thereof, the jurisdiction under Section 74 of the Act itself cannot be invoked by the authorities.
The order impugned dated 16.03.2024 passed by respondent no. 2 demanding interest and penalty from the petitioner invoking provisions of Section 74 of the Act cannot be invoked - Petition allowed.
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2025 (3) TMI 109
Challenge to order whereby the respondents have passed order in original and raised demand - an interim order was granted by this Court - HELD THAT:- The Court, until further orders, has stayed payment of GST for grant of mining lease/royalty by the petitioner.
In view of the above, it cannot be said that the respondents were not justified in passing the order of assessment and raising the demand as otherwise they are bound to follow the direction, i.e. not to enforce the demand.
The petitioner was not required to question the validity of the assessment order and the demand notice by filing a separate writ petition - petition disposed off.
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2025 (3) TMI 108
Provisional attachment of the bank account of the petitioner - reasoned order or not - violation of principles of natural justice - HELD THAT:- In the present case, subsequent to the provisional attachment, the petitioner had approached this Court and the coordinate Bench of this Court had directed the respondent authorities to consider the objection filed by the petitioner and grant an opportunity of hearing. The petitioner availed of the said opportunity and filed his objections and was heard by the respondents authorities, which culminated subsequently in the order dated October 30, 2024 wherein the objections of the petitioner were rejected by the respondent authorities. Furthermore, in the present the case show cause notice issued under Section 74 of the Act has also been adjudicated upon and a final order passed under Section 74 of the Act.
The objections of the petitioner were dealt with by the respondent authorities and the provisional attachment was justified under Section 83 of the Act for a period of one year. The said period would only come to an end on July 7, 2025.
Conclusion - Since show cause notice has already been adjudicated upon and order was passed under Section 74 of the Act, the petitioner has the statutory alternative remedy under the law to file an appeal against the same.
This writ petition is dismissed with liberty granted to the petitioner to approach the appellate authority in accordance with law.
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2025 (3) TMI 107
Detention and seizure of goods due to the expiration of the e-way bill during intra-state stock transfer - HELD THAT:- Admittedly, the goods were in transit when the same was intercepted on the ground that validity of e-way bill accompanying with the goods, was expired. The petitioner at the time of detention / seizure has filed a letter dated 16.3.2021 stating therein that due to mistake of the driver of the vehicle, e-way bill was expired without knowledge of the petitioner. In the letter it is specifically stated that the goods in question was despatched to Aligarh as intra-state stock transfer from one unit to another unit. Since the goods in transit were not sold goods but intra-state stock transfer, therefore, no adverse view should be drawn.
Further, the mistake of the driver has been disbelieved only on the ground that at the time of making statement, the driver did not make statement that he visited his village due to illness of his child and stayed there for three days but on the very first instance, letter dated 16.3.2021 was filed before the respondent authority stating therein that due to mistake of the driver, the validity of e-way bill was expired and without there being any intimation to the petitioner, the driver of the vehicle has started his onward journey after expiry of e-way bill. The said fact has not been disbelieved at any stage.
Hon’ble the Apex Court in the case of Assistant Commissioner (ST) & others Vs. M/s Satyam Shivam Papers Private Limited [2022 (1) TMI 954 - SC ORDER] has held that 'it has precisely been found that there was no intent on the part of the writ petitioners to evade tax and rather, the goods in question could not be taken to the destination within time for the reasons beyond the control of the writ petitioners.'.
Conclusion - The detention and seizure of goods, as well as the penalty imposed, were not justified in the absence of evidence of tax evasion and compliance with intra-state transfer regulations.
Petition allowed.
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2025 (3) TMI 106
Rejection of refund claim - mismatch of invoices in GSTR-2A - HELD THAT:- Despite time having been granted on earlier occasions, the petitioner has failed to file a rejoinder affidavit.
There are no justification to continue the writ petition on our board and dispose of the same by permitting the writ petitioner to file its response to the stand as taken by the respondents and which stands reflected in Paragraphs 15 and 16 of the counter affidavit as reproduced. The said response may be filed within a period of three weeks from today.
Petition disposed off.
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2025 (3) TMI 105
Challenge to refund rejection order issued in Form GST RFD-06 - mismatch between the data furnished by the exporter of goods in shipping bill and those furnished in the statement of outward supply in Form GSTR – 1 - lack of opportunity to respond to the SCN - violation of principles of natural justice - HELD THAT:- It is an admitted position that the petitioners are engaged in the business of manufacture and exports, and in usual course had exported certain goods. The petitioners claim to have exported the goods with payment of integrated goods and service tax under two several invoices dated 17th April, 2023 and 3rd June, 2023 along with two corresponding shipping bills dated 18th April, 2023 and 5th June, 2023. According to the petitioners, it had exported the goods in compliance with the provisions for making zero rated supply as prescribed in Section 16 of the IGST Act, 2017.
Since the petitioners claim to have exported the goods along with duty, the petitioners were expecting that upon furnishing of the return filed by the petitioners in Form GSTR-3B, the petitioners’ bank account would be credited with the integrated goods and service tax already paid in respect of the shipping bill to the petitioners’ bank account. In the instant case, records would reveal that the petitioners refund was not effected and the same was withheld in terms of Rule 96 (4) of the said Rules.
The benefit of doubt should be given to the petitioners, especially when the petitioners may not have got appropriate opportunity to respond to the show cause - Accordingly, on the ground of violation of principle of natural justice the refund rejection order dated 25th September, 2024 is set aside.
Conclusion - The petitioners should be given the benefit of doubt, especially considering the lack of opportunity to respond to the show cause.
Petition disposed off.
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