|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1169 Records
-
2025 (2) TMI 1169
Seeking grant of bail - Money Laundering - scheduled offences - illegal sand/mineral mining operations conducted by the present applicant - it was held by High Court that 'No case for grant of bail has been made out in terms of Section 45 of the PML Act, as there exist reasonable grounds for believing that the applicant is guilty of such offence.'
HELD THAT:- The impugned order, being interim in nature, will not have any bearing on the Writ Petition which is yet to be disposed of.
Appeal disposed off.
-
2025 (2) TMI 1168
Levy of surcharge - CIT (A) relying on the Section 2(29)(C) has held that surcharge is leviable on the AOP as the tax has been charged at the maximum marginal rate - assessee is an AOP (Trust) - HELD THAT:- We are in complete agreement with the order of Hon’ble ITAT, Mumbai, in the case of Jitendra Gala Navneet Trust v. DDIT [2024 (11) TMI 233 - ITAT MUMBAI]. We therefore hold that the assessee is not liable for the levy of surcharge because assessee’s income has not breached Rs. 50 Lakhs. In view of the above, the appeal filed by the assessee is allowed.
-
2025 (2) TMI 1167
Additions u/s 69A and 69C - Reliance on documents from electronic records - evidence on record to show compliance u/s. 65B of the Indian Evidence Act - HELD THAT:- Admittedly, from the perusal of the image found from the mobile of Shri Javed Shaikh as reproduced in the impugned assessment order, we note that there is nothing mentioned about the name of assessee. It was found from person who was an employee of the assessee and had left the employment, as stated by the assessee in his statement.
There is no corroborative material brought on record by the authorities below, to conclusively demonstrate that transactions are of the assessee for the purpose of making addition. Importantly, we also note that requirements of Section 65B of the Indian Evidence Act have not been complied with since the entire addition is based on image found from the mobile of Shri Javed Shaikh which is an electronic record. In this respect, we take note of the decisions of Hon'ble Supreme Court in Arjun Pandirao Khotkar [2020 (7) TMI 740 - SUPREME COURT] which makes it mandatory to comply with the requirements in respect of electronic record, compliance of which has nowhere been mentioned in the entire proceedings.
Thus, we delete the addition made in the hands of the assessee as unexplained money u/s. 69A. Further, we affirm the deletion in respect of addition made by AO u/s. 69C by holding it as unexplained expenditure. Accordingly, ground taken by the Revenue is dismissed and that of the assessee is allowed.
Addition made u/s. 69C based on documents, found and seized from mobile of one Shri Shailendra Rathi - The image/sheet found from the mobile of Shri Shailendra Rathi being an electronic record, used as evidence for the purpose of making addition in the hands of the assessee is without obtaining necessary certification in this regard and therefore, addition by AO is not tenable. Accordingly, considering the overall factual matrix and discussions made above, we do not find any infirmity in the findings arrived at by ld. CIT(A). Ground no.2 raised by the Revenue is thus, dismissed.
Addition u/s. 69A based on statement of one Shri Kaustubh Latke that payment is made by assessee to one group called as “GNP Group” - AO did not make any independent enquiry, so as to ascertain the fact stated by Shri Kaustubh Latke in respect of sale of land at Pune in this respect. He did not identify details of land in Pune, i.e., its location, area, buyer, seller, consideration, etc., in relation to which assessee is alleged to be the recipient of consultancy services from Shri Kaustubh Latke. AO has simply placed reliance on uncorroborated statement of Shri Kaustubh Latke and arrived at a conclusion that assessee had made payment of Rs. 3 crores without adducing any evidence to that effect or conducting any enquiry. The seized document in the form of image found from the mobile of Shri Kaustubh Latke does not specify nature or purpose of the alleged transaction nor does have any signature or any other identification of the assessee.
Addition cannot be made only on the basis of WhatsApp conversation between third parties without adducing corroborative evidence in support of such allegation.
CIT (A) after considering various judicial precedents to state that documents/material found from the premises of third party or a statement of third party cannot be relied upon to make additions in the hands of the assessee, unless such material or statement is corroborated by independent evidence, linking such material to the assessee
As decided in Common Cause v. UOI [2017 (1) TMI 1164 - SUPREME COURT] wherein searches were conducted on the Birla and Sahara Group of Companies and incriminating material in form of random sheets and loose papers, computer prints, hard disk, pen drives etc. were found, held that noting on loose sheet/diary does carry any evidentiary value under the provision of section 34 of the Evidence Act.
-
2025 (2) TMI 1166
Addition made u/s 69C - Addition on the basis of the statement and loose sheets - HELD THAT:- No addition can be made unless there irrebuttable evidence as regards the payment of bonus in cash and addition cannot be made merely because of the failure on the part of AO to conduct necessary enquiries and to bring on record cogent, convincing and admissible evidence.
Even otherwise, the AO has made addition u/s 69C in the present case. In order to make additions under the said section the initial burden is upon the revenue/AO to prove that expenditure was actually incurred only thereafter assessee can be put to prove the source with regard to such expenditure.
In the facts of the present case, AO has miserably failed to discharge its burden and nothing has been brought on record to prove the actual incurring of any expenditure. Therefore, on this reason also no addition could have been made u/s 69C of the Act.
AO has failed to discharge its burden and to bring on record the cogent, convincing and relevant documentary evidences to make addition u/s 69C - Appeal filed by the assessee stands allowed.
-
2025 (2) TMI 1165
Unexplained investments and unexplained receipts - additions have been made on the basis of information collected by the AO - HELD THAT:- We are of the considered view that even in the third round of litigations, the AO could not provide the specific information/ details collected from the companies on the basis of which the impugned additions have been made, are in complete violation of the principles of natural justice.
Thus to sum- up even in the first round of litigation, AO could not provide the details which were the basis for making the impugned additions. Therefore, in our considered view, such additions cannot be sustained, keeping in mind the number of decades passed since the original assessment order was framed. Moreover, the additions have been made in violation of audi alteram partem. We, therefore, direct the AO to delete the impugned addition.
Addition based upon the letter received from the Custodian - As no specific details of holding of shares for the impugned assessment year has been mentioned or provided to the assessee, the additions cannot be sustained. AO is directed to delete the same.
Additions made on account of dividend details/warrants - The investment in shares DCM Ltd. of 2500 shares are coming from earlier years as the same is opening balance. Similarly, 3900 shares of Eicher Motors which were opening balance of the assessee were only 200 shares with bonus of 400 shares at the end of the impugned financial year. The holding of Golden Proteins at 15,300 shares have been wrongly taken from the opening balance of Gujarat Ambuja Proteins. The complete details of short-term capital gains and long-term capital gains on sale of shares during the impugned financial year have been given with complete details of dividends received from shares during the financial year.
It would be pertinent to mention here that the entire additions have been based on dividends declared by the companies of which the assessee may or may not have held the shares during the year under consideration as the same is not based on physical holding of shares and merely on the basis of information collected behind the back of the assessee for which we have already expressed our view elsewhere. Therefore, this addition also cannot be sustained. Accordingly, Ground No. 2 with all its sub- grounds is allowed.
Addition on account of unexplained receipts - We do not find any specific reason given for making the impugned addition as interest received on savings bank account, dividend income have already been shown by the assessee on its income statement and there is no specific mention as to entry in which bank account has not been shown/declared by the assessee. The additions have been repeated from the first round of litigation without any demonstrative evidence, therefore, the same is directed to be deleted.
Allowability of interest expenditure - In assessee's own case for AY 1991-92, has allowed the claim of interest. On finding parity of facts we direct the AO to allow the entire claim of interest.
Enhancement of assessed income on account of difference in the balance sheet in the books of account of Late Harshad Mehta - As we figures from the reconciliation statement hereinabove we find that the balance has been mentioned as balance as per the books of Harshad Mehta and the total balance which included share-market balance, money market balance and personal balance. It seems that the balance of Harshad Mehta have been considered with his own balance and not with the balance of Sudhir S. Mehta, which have been explained in the above chart and the balance stands totally reconciled. Therefore, the impugned enhancement made by the ld. CIT(A) is uncalled for and deserves to be deleted. Accordingly, Ground No. 6 is allowed.
Levy of interest u/s 234D - In our considered opinion, provisions of Section 234D of the Act are not applicable in the facts of the case inasmuch as, there was no refund issued to the assessee as there was no processing of return u/s 143(1) of the Act. Our view is fortified by the decision in the case of Delta Airlines Inc [2011 (9) TMI 21 - BOMBAY HIGH COURT] We accordingly direct the AO to not charge interest u/s 234D of the Act.
Levy of interest u/s 234A and 234B - In our considered view, such levies are mandatory but only up to the date of original assessment order which is dated 20/03/1995. The AO is directed to charging interest u/s 234A and 234B of the Act up to the date of original assessment order.
-
2025 (2) TMI 1164
Cancellation of bail granted to respondent - fraudulent availing of Input Tax Credit (ITC) - interpretation and application of the provisions under Sections 122 and 132 of the CGST Act - HELD THAT:- Sections 122 (viii) and 122 (x) explicitly address the unlawful acquisition of refunds and falsifying final records or creating fake accounts. Under Section 132 (c), it is mandated that invoices or bills cannot be utilised without the corresponding supply of goods or services. In this case, the respondent wrongfully availed of input tax credit without receiving any goods, relying on forged bills from non-existent companies. The evidence unmistakably establishes that the respondent was the proprietor of M/s Gurbax Rai & Sons and M/s Gurbax Rai Cotton Industries. Investigative materials have further revealed that the respondent fraudulently availed input tax credit amounting to Rs. 8.59 crores.
Upon reviewing the entire record, it is evident that the learned trial court erred egregiously and displayed a lack of accuracy by granting bail to the accused respondent, Lovkesh Kumar. The argument that a similar matter received an interim order of no coercive action from the Hon’ble Apex Court does not justify dismissing the plea for cancellation of bail.
Conclusion - The trial court's decision to grant bail is based on a misinterpretation of the CGST Act's provisions, particularly Section 132. This Court firmly decides to cancel the bail granted to respondent Lovkesh Kumar S/o Shri Guruvax Rai.
The application for the cancellation of bail is allowed, and the order permitting bail from 05.04.2024 issued by the learned Additional Sessions Judge No.1, Jaipur Metropolitan-II, is hereby nullified.
-
2025 (2) TMI 1163
Confirmation of demand - imposition of penalty under section 78 of the Finance Act, 1994 - short-payment of Service Tax under Reverse Charge Mechanism (RCM) against import of certain services - irregular availment of Cenvat credit of input services - levy of penalty.
Levy of penalty - HELD THAT:- It is an admitted fact that the moment audit pointed out, they have paid the Service Tax along with interest. Therefore, the department was aware that they have already paid the Service Tax and interest as it was even recorded in the SCN. Further, on going through various grounds taken including revenue neutrality, it would be obvious that there were certain interpretational issues, which the appellant would have had while considering the payment of Service Tax or otherwise - in the absence of any cogent and positive evidence by the department about deliberate and intentional suppression or misstatement, the ground for invoking extended period cannot be sustained and on the same ground, the penalty can also be not imposed. Further, since these conditions are not established, therefore, the benefit under Section 73(3) cannot be denied and once the amount has been paid along with interest, there was no need to issue SCN. Therefore, on this count, the Order of the Commissioner imposing penalty, in the facts of the case, cannot sustain and accordingly, the penalty imposed by the Adjudicating Authority is set aside.
Short payment of Service Tax under Business Support Service by wrongly claiming deduction under Pure Agent clause - HELD THAT:- During the material time, Rule 5 provided for inclusion of reimbursable activities as part of service provided. As per Rule 5(1), as it existed during the material time, whether any expenditure or costs are incurred by the service provider in the course of providing taxable service, all such expenditure or costs were to be treated as consideration for taxable service provided or to be provided and shall be included in the value for the purpose of charging Service Tax on the said service. Therefore, irrespective of the fact whether the expenditure or costs are incurred on reimbursable basis or otherwise, it was required to be included in the gross value in terms of Rule 5(1). However, Rule 5(2), which was subject to the provisions of Rule 5(1), certain expenditure and costs incurred by the service provider as pure agent of the recipient of service was required to be excluded from the value of taxable service, subject to fulfillment of certain conditions. The Adjudicating Authority has examined these conditions and came to the conclusion that the appellants have not fulfilled all the conditions enumerated under Rule 5(2) to justify the claim of deduction as pure agent.
The issue regarding inclusion of reimbursable expenditure or costs in the gross value of consideration received for providing taxable service or otherwise is no longer res integra in view of the judgment in the case of Union of India Vs Intercontinental Consultants and Technocrats Pvt Ltd [2018 (3) TMI 357 - SUPREME COURT]. Hon’ble Supreme Court at Para 21, inter alia, observed that Rule 5 brings within its sweep the expenses which are incurred while rendering the services and are reimbursed i.e., for which the service recipient has made payment to the assessee and as per these Rules, these reimbursable expenses also forms part of the gross amount charged.
Conclusion - The reimbursable expenses should not be included in the taxable value. Penalty imposed on the appellants for short payment of Service Tax and Cenvat credit demand set aside, as there was no evidence of willful misstatement or suppression.
The impugned order is set aside - appeal allowed.
-
2025 (2) TMI 1162
Power to arrest under the Customs Act, 1962 and the Central Goods and Services Tax Act, 2017 - reasons to believe - non-cognizable offences - Jurisdictionary powers of judicial review under Article 32 and Article 226 of the Constitution of India.
As per Sanjiv Khanna, CJI
HELD THAT:- Section 41-D of the Code is applicable for offences under the Customs Act. Accordingly, a person arrested by a customs officer has the right to meet an advocate of his choice during interrogation, but not throughout interrogation - In Senior Intelligence Officer, Directorate of Revenue Intelligence v. Jugal Kishore Samra, [2011 (7) TMI 910 - SUPREME COURT]. This Court held that an advocate/authorised person may be present within visual distance during interrogation, but he cannot be within hearing distance of the proceedings nor can there be any consultations with such advocate/authorised person during the course of the interrogation.
Reference can also be made to Section 50A of the Code, which states that every police officer or other person making an arrest under the Code shall forthwith give information regarding such arrest and place where the arrested person is being held to any of his friends, relatives, or other person as may be disclosed or nominated by the arrested person for the purpose of giving such information. The arrested person must be informed of this right - the details of compliance with this mandate must be entered into the diary maintained by customs officer. It is the duty of the Magistrate, when an arrested person is produced, to satisfy himself that the requirements of Section 50A(2) and (3) have been complied with. Thus, these stipulations will apply in cases of arrests made by the customs officers.
Arvind Kejriwal v. Directorate of Enforcement, [2024 (7) TMI 760 - SUPREME COURT] a recent judgment authored by one of us (Sanjiv Khanna, J.), is a dictum relating to the Prevention of Money Laundering Act, 2002. This Court held that the power of arrest granted to the Directorate of Enforcement under Section 19 of the PML Act is fenced with certain pre-conditions. These pre-conditions act as stringent safeguards to protect the life and liberty of individuals.
In Arvind Kejriwal, a combined reading of Pankaj Bansal v. Union of India and Others, [2024 (7) TMI 760 - SUPREME COURT] Prabir Purkayastha v. State of NCT of Delhi, [2024 (5) TMI 1104 - SUPREME COURT] and Vijay Madanlal Choudhary and Others v. Union of India and Others [2022 (7) TMI 1316 - SUPREME COURT (LB)] was adopted by this Court. It was held that the power to arrest a person without a warrant and without instituting a criminal case is a drastic and extreme power. Therefore, the legislature had prescribed safeguards in the language of Section 19 itself which act as exacting conditions as to how and when the power is exercisable. These safeguards include the requirement to have “material” in the possession of DoE, and on the basis of such “material”, the authorised officer must form an opinion and record in writing their “reasons to believe” that the person arrested was “guilty” of an offence punishable under the PML Act. The “grounds of arrest” are also required to be informed forthwith to the person arrested.
Arvind Kejriwal also holds that the courts can judicially review the legality of arrest. This power of judicial review is inherent in Section 19 as the legislature has prescribed safeguards to prevent misuse. After all, arrests cannot be made arbitrarily on the whims and fancies of the authorities. This judicial review is permissible both before and after criminal proceedings or prosecution complaints are filed.
The investigating officer is also required to look at the whole material and cannot ignore material that exonerates the arrestee. A wrong application of law or arbitrary exercise of duty by the designated officer can lead to illegality in the process. The court can exercise judicial review to strike down such a decision.
There is substantively no difference between a person being guilty of an offence and a person committing an offence. In a catena of judgments of this Court, it has been held that words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary - given the framework of the Customs Act, which explicitly classifies offences into bailable and non-bailable, as well as cognizable and noncognizable, the “reasons to believe” must reflect these classifications when justifying an arrest. The reasoning must weigh in why an arrest is being made in a specific case, particularly given the specific severity assigned to the offence by the legislature. The reasoning must also state how the monetary thresholds outlined in the Act are met.
There are no inconsistency between Section 19(1) of the PML Act and Section 104(1) of the Customs Act. We are of the opinion that principles and ratio developed in the case of Arvind Kejriwal, and the principles specifically discussed and delineated in paragraphs 30 to 45 of this judgment, are equally applicable to the power of arrest under Section 104 of the Customs Act. The respondent authorities are, therefore, directed to comply with the mandate of this judgment and that of Arvind Kejriwal.
The challenge to the amendments as well as provisions of the Customs Act is rejected. Reliance placed by the petitioners on the decision of this Court in Om Prakash [2011 (9) TMI 65 - SUPREME COURT] is misconceived as the statutory provisions have undergone amendments to bring them in consonance with the law of the land. Moreover, the provisions themselves provide enough safeguards against arbitrary and wrongful arrests.
Section 162(1) of the GST Acts permits compounding of offences and therefore, the ratio in Makemytrip [2016 (9) TMI 52 - DELHI HIGH COURT] should be applied to the GST Acts. The decision in Makemytrip, itself carves out an exception when an assessment order under the Finance Act may not be required, namely cases where a person who is shown to be a habitual evader as one who has not filed service tax returns for a continuous period of time, who has a history of repeated defaults for which there have been fines, penalties imposed, and prosecutions launched, etc. - there are sufficient safeguards to ensure that no arrests are made till the Commissioner is able to show and establish, on the basis of material and evidence, that the conditions of clauses (a) to (d) as well as clause (i) of sub-section 1 to Section 132 of the GST Acts are satisfied and therefore the offences are non-bailable.
Constitutional validity of Sections 69 and 70 of the GST Acts - HELD THAT:- The Parliament, under Article 246-A of the Constitution, has the power to make laws regarding GST and, as a necessary corollary, enact provisions against tax evasion. Article 246-A of the Constitution is a comprehensive provision and the doctrine of pith and substance applies. The impugned provisions lay down the power to summon and arrest, powers necessary for the effective levy and collection of GST. Time and again this Court has held that while deciding the issue of legislative competence, entries should not be read in a narrow or pedantic sense but given their broadest meaning and the widest amplitude because they are intrinsic to a machinery of government.
A penalty or prosecution mechanism for the levy and collection of GST, and for checking its evasion, is a permissible exercise of legislative power. The GST Acts, in pith and substance, pertain to Article 246-A of the Constitution and the powers to summon, arrest and prosecute are ancillary and incidental to the power to levy and collect goods and services tax. In view of the aforesaid, the vires challenge to Sections 69 and 70 of the GST Acts must fail and is accordingly rejected.
The challenge to the constitutional validity as also the right of the authorised officers under the Customs Act and the GST Acts to arrest are rejected and dismissed with elucidation and clarification on the pre-conditions and when and how the power of arrest is to be exercised.
The matters are directed to be listed before an appropriate Bench in the week commencing 17.03.2025 for final hearing and disposal.
As per Bela M. Trivedi, J
HELD THAT:- Whenever the jurisdiction of the High Court or the Supreme Court is invoked under Article 226 or Article 32 as the case may be, challenging the punitive or preventive detention, the Court is expected to take into consideration the nature of right infringed, the scope and object of the legislation under which such arrest or detention is made, the need to balance the rights and interests of the individual as against those of the society, the circumstances under which and the persons by whom the jurisdiction is invoked etc. In exercise of their discretionary jurisdiction, the High Courts and the Supreme Court do not, as courts of appeal or revision, correct errors of law or of facts. The judicial intervention is warranted only in exceptional circumstances when the arrest is prima facie found to be malafide; or is prompted by extraneous circumstances, or is made in contravention of or in breach of provisions of the concerned statute; or when the authority acting under the concerned statute does not have the requisite authority etc.
The power of judicial review keeps a check and balance on the functioning of the public authorities and is exercised for better and more efficient and informed exercise of their powers, such power has to be exercised very cautiously keeping in mind that such exercise of power of judicial review may not lead to judicial overreach, undermining the powers of the statutory authorities. To sum up, the powers of judicial review may not be exercised unless there is manifest arbitrariness or gross violation or non-compliance of the statutory safeguards provided under the special Acts, required to be followed by the authorized officers when an arrest is made of a person prima facie guilty of or having committed offence under the special Act.
Conclusion - i) The amendments to the Customs Act and GST Act are valid. ii) The procedural safeguards under the CrPC apply to arrests under the Customs Act and GST Act, ensuring protection of individual rights. iii) Customs officers must exercise their arrest powers with caution, ensuring compliance with statutory and constitutional safeguards. iv) The power of arrest under these Acts is subject to judicial review to prevent arbitrary or unlawful arrests. v) The constitutional validity of Sections 69 and 70 of the GST Acts is upheld, affirming the legislative competence to enact such provisions.
-
2025 (2) TMI 1161
Challenge to assessment order - seeking direction to respondents to issue or upload DRC-07 pursuant to the order dated 29.09.2022 for filing appeal under Section 107 of the UPGST Act, 2017 - HELD THAT:- When the matter came up before the Court on 20.01.2025, learned Standing Counsel was directed to complete his instructions on the aspect of nature of order which needs to be passed by the respondents pursuant to the order dated 29.09.2022 against which an online appeal can be filed and/or issue order under DRC-07 in terms of Rule 142 of the UPGST Rules, 2017, as prayed by the petitioner.
Today, instructions have been produced inter alia indicating that summary of order in Form GST DRC-07 has been issued on 03.02.2025 and copy of the instructions has been handed over to counsel for the petitioner.
Petition disposed off.
-
2025 (2) TMI 1160
Challenge to order of determination u/s 73 of the GST Act, as well as the appellate order - non-constitution of Tribunal - jurisdiction under Article 226 of the Constitution of India - HELD THAT:- The petitioner can be given the liberty to prefer an appeal to the Tribunal within 30 days of its constitution, and also if the condition stipulated in Section 112(8)(b) of the GST Act is complied with, further recovery can be deferred until disposal of the appeal.
This writ petition is disposed of giving liberty to the petitioner to prefer an appeal within 30 days of the constitution of the Appellate Tribunal contemplated under Section 112(1) of the GST Act. It is further directed that if the petitioner deposits the amount of 10% as contemplated under Section 112(8)(b) within 30 days from today, further proceedings for recovery pursuant to Exhibit-P3 and Exhibit-P5 shall be kept in abeyance till the appeal as directed above is disposed of.
-
2025 (2) TMI 1159
Validity of summary of the order in Form GST DRC-07 and the Order-in Original - DRC-07 does not have any physical or digital signature - time limitation - HELD THAT:- Admittedly, the petitioner had a remedy of appeal under the GST Act and did not avail such remedy. This petition is not filed within the statutory time limit prescribed under the GST Act. Thus, in view of the judgment of the Apex Court in GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT], there are substance in the argument of learned Senior Standing Counsel for CBIC that this petition is not liable to be entertained. Otherwise, it will be against the scheme and intention of the statutory provision.
The O.I.O. dated 24.04.2024 contained physical signature and it is issued within the limitation period which was extended upto 30.04.2024. DRC-07 is only a ‘summary of order’ and even if it did not contain any signature, it will not cause any prejudice to the petitioner.
The petitioner can avail the remedy under the relevant statute, if law so permits - petition dismissed.
-
2025 (2) TMI 1158
Maintainbaility of petition - availability of alternative remedy of statutory right of appeal - HELD THAT:-Having considered the materials on record as also taking note of the fact that the Appellate Tribunal is yet to be constituted, it is opined that the petition should be heard.
Since, the petitioner has been able to make out a prima facie case, there shall be an unconditional stay of the demand made in Form GST APL – 04 dated 17th September, 2024 for a period of three weeks from date - In the event, the petitioner makes payment of 10% of the balance amount of tax in dispute, in addition to the amount already deposited in terms of Section 107 (6) of the said Act, within three weeks from date, the interim order passed herein, shall continue till the disposal of the writ petition or until further order, whichever is earlier.
Let affidavit-in-opposition to the present writ petition be filed within a period of six weeks from date. Reply, thereto, if any, be filed within four weeks thereafter.
-
2025 (2) TMI 1157
Challenge to assessment order in Form GST DRC-07 - said proceeding does not contain the signature of the assessing officer and also DIN number, on the impugned assessment order - HELD THAT:- The effect of the absence of the signature, on an assessment order was earlier considered by this Court, in the case of A.V. Bhanoji Row Vs. The Assistant Commissioner (ST), [2023 (2) TMI 1224 - ANDHRA PRADESH HIGH COURT]. A Division Bench of this Court, had held that the signature, on the assessment order, cannot be dispensed with and that the provisions of Sections-160 & 169 of the Central Goods and Service Tax Act, 2017, would not rectify such a defect.
A Division Bench of this Court in the case of M/s. Cluster Enterprises Vs. The Deputy Assistant Commissioner (ST)-2, Kadapa [2024 (7) TMI 1512 - ANDHRA PRADESH HIGH COURT], on the basis of the circular, dated 23.12.2019, bearing No.128/47/2019-GST, issued by the C.B.I.C., had held that non-mention of a DIN number would mitigate against the validity of such proceedings.
Conclusion - For the non-mention of a DIN number and absence of the signature of the assessing officer, in the impugned assessment order would have to be set aside.
This Writ Petition is disposed of setting aside the impugned assessment order in Form GST DRC-07, dated 12.08.2024, issued by the 2nd respondent, with liberty to the 2nd respondent to conduct fresh assessment, after giving notice and by assigning a signature to the said order.
-
2025 (2) TMI 1156
Violation of principles of natural justice - impugned order passed without considering the petitioner's response - HELD THAT:- Respondents states that the Adjudicating Authority had clearly failed to bear in consideration the reply as submitted by the petitioner and that the petitioner was also perhaps not provided an opportunity of hearing. In view of the above, it was suggested that the ends of justice would merit the matter being remanded for consideration afresh.
The matter shall stand remitted to the Adjudicating Authority for consideration afresh and bearing in mind the response which had been submitted by the petitioner.
-
2025 (2) TMI 1155
MIsuse of petitioner's credentials on the Goods and Services Tax portal, leading to allegations of passing fraudulent Input Tax Credit without actual supply of goods - HELD THAT:- Similar issue decided in Aakash Gupta vs. Commissioner of Delhi Goods and Services Tax & Ors [2024 (12) TMI 1535 - DELHI HIGH COURT] where it was held that 'the question of whether the credentials of the petitioner were misused and is a case of identity theft clearly gives rise to disputed questions of fact and would be liable to be duly inquired into by the competent authorities and which investigation cannot be undertaken by this Court.'
Petition disposed off.
-
2025 (2) TMI 1154
Challenge to order on the ground that the same is made in violation of principles of natural justice - availing of Input Tax Credit after the due date - HELD THAT:- The said issue is no longer res integra. This Court in a batch of writ petitions in W.P.(MD)Nos.25081 of 2024 etc. [2024 (10) TMI 1631 - MADRAS HIGH COURT], by taking note of the amendment to Section 16(4) of the CGST Act which came into force with retrospective effect from 01.07.2017 had quashed the similar impugned orders and thereafter this Court in a similar issue in JC VALVULAS INDIA PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER, CHENNAI. [2024 (11) TMI 1430 - MADRAS HIGH COURT] taking note of the amendment passed, had set aside the order of assessment and remitted the matter back to the assessing officer for passing order afresh.
The impugned order dated 24.08.2024 is set aside and the matter is remitted back to the respondent for fresh consideration in consonance with the amended provision of Section 16 of the GST Act
Petition allowed by way of remand.
-
2025 (2) TMI 1153
Seeking to quash and set aside the impugned SCN - case of the Petitioner is that by the impugned show cause notice, the authorities are seeking to go beyond the Advance Ruling already given in favour of the Petitioner by the Appellate Authority - HELD THAT:- This is certainly not a fit case where it is required to interfere at the show cause notice stage. Whether the show cause notice, in fact, seeks to do something which is also ruled upon in the Advance Ruling order, or otherwise, is something that the authorities will have to decide whilst adjudicating the show cause notice. Further, what tax has to be paid by the Petitioner and at what rate, will also have to be decided whilst adjudicating the show cause notice. At this stage, it is not inclined to interfere with the issuance of show cause notice and the Petitioner will have to face the same.
The Petitioner shall file its Reply/ Representation to the show cause notice within a period of four weeks from today and the show cause notice shall be adjudicated within a period of twelve weeks from today.
-
2025 (2) TMI 1152
Liability to pay GST demand for the Assessment Years 2017-2018, 2018-2019, and 2019-2020 - it is alleged that petitioner was indulging in passing Input Tax Credit to facilitate evasion of tax - respondent submit that entire tax liability has been borne by the petitioner out of the Input Tax Credit availed by the petitioner which was passed on by the respective dealers.
HELD THAT:- The law on the subject has been settled by the Division Bench of this Court in Sahyadri Industries Limited Vs. State of Tamil Nadu [2023 (4) TMI 912 - MADRAS HIGH COURT]. Although the said decision was rendered in the context of Tamil Nadu Value Added Tax (TNVAT) Act, 2006, the ratio therein will squarely apply to the facts of the case under the Central Goods and Services Tax (CGST) Act, 2017 and the Tamil Nadu Goods and Services Tax (TNGST) Act, 2017.
The fact remains that the petitioner has discharged the entire tax liability from and out of the Input Tax Credit availed from the invoices raised by the above mentioned suppliers. There is no payment of tax in cash by the petitioner. Prima facie, there are indications that the petitioner acted as an accessory to pass an ineligible Input Tax Credit.
Petition dismissed.
-
2025 (2) TMI 1151
Chalelnge to assessment order - said proceeding does not contain the signature of the assessing officer and also DIN number on the impugned assessment orders - HELD THAT:- The effect of the absence of the signature, on an assessment order was earlier considered by this Court, in the case of A.V. Bhanoji Row Vs. The Assistant Commissioner (ST)[2023 (2) TMI 1224 - ANDHRA PRADESH HIGH COURT] - A Division Bench of this Court, had held that the signature, on the assessment order, cannot be dispensed with and that the provisions of Sections-160 & 169 of the Central Goods and Service Tax Act, 2017, would not rectify such a defect. Following this Judgment, another Division Bench of this Court, in the case of M/s. SRK Enterprises Vs. Assistant Commissioner, [2023 (12) TMI 156 - ANDHRA PRADESH HIGH COURT], had set aside the impugned assessment order.
Conclusion - In view of the non-mention of a DIN number and absence of the signature of the assessing officer, in the impugned assessment order would have to be set aside.
The impugned assessment orders in Form GST DRC-07, dated 30.04.2024 and Form GST DRC-08, dated 18.01.2022, issued by the 3rd respondent set aside - petition allowed.
-
2025 (2) TMI 1150
Violation of principles of natural justice - Challenge to impugned order - either the show cause notices nor the impugned order of assessment has been served on the petitioner by tender or sending it by RPAD - petitioner was unaware of the impugned order of assessment - petitioner is ready and willing to pay 10% of the disputed tax and seeks grant of one final opportunity before the adjudicating authority - HELD THAT:- The impugned order dated 19.08.2024 is set aside - The petitioner shall deposit 10% of the disputed taxes as admitted by the learned counsel for the petitioner and the respondent, within a period of four weeks from the date of receipt of a copy of this order.
Petition disposed off.
........
|
9911796707
