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2023 (11) TMI 1157
Rejection of appeal of the petitioner - Correctness of proceedings u/s 74 of the GST Act - petitioner failed to discharge its onus to prove and establish beyond doubt the actual transaction as well as the genuineness of the transactions - HELD THAT:- It is admitted fact between the parties that the goods have been shown to be purchased from M/s Krishna Trading Company, Mathura. In support thereof, tax invoice, e-way bill, weighment receipt before after loading, bilty, etc. were filed and on the basis of the said documents, ITC was availed by the petitioner. Thereafter, on scrutiny, neither M/s Krishna Trading Company was found to be in existent, nor the persons, who issued the bilty and weighment slip, was found in existent. Once the very basis to show that the movement of goods has taken place was doubted, the petitioner, apparently....... + More
2023 (11) TMI 1156
Rejection of bail - fake entities created to pass on and avail Input Tax Credit under the GST regimen (ITC) to defraud government exchequer - exports declared are all bogus and fake - HELD THAT:- In RATNAMBAR KAUSHIK VERSUS UNION OF INDIA [ 2022 (12) TMI 263 - SUPREME COURT] , the Hon ble Supreme Court granted bail to the petitioner therein, the facts of the case being somewhat similar to the present case. It is true that the allegation made against the petitioner is that he received the benefit of the amount that was granted to different entities to the tune of Rs. 7,79,52,045/-, obtaining refund of Rs. 7,79,52,045/- and it is contended by the prosecution/complainant that there is likelihood of the discovery of more such transaction, but it is also not disputed that the final prosecution report has been filed in the case. The pet....... + More
2023 (11) TMI 1155
Validity of seizure order as well as penalty order - variation in the description of good actually found with that mentioned in the documents - requirement to examine the documents accompanying the goods at the time of seizure - HELD THAT:- The finding that the parties had under valued the goods or there was any intention to avoid payment of correct amount as tax may justify seizure and penalty but cannot be made ground to not treat the petitioner as owner of the goods. The respondents ought to have examined the documents accompanying the goods at the time of seizure in terms of their own Circular dated 31.12.2018 in determining the said issue. The order to the extent it seeks to reject the prayer for release of goods in favour of the petitioner, cannot be sustained. It is accordingly quashed to the said extent only. The second resp....... + More
2023 (11) TMI 1154
Availment of ineligible transitional credit availed by the appellant or not - application filed belatedly after five years from the prescribed date - HELD THAT:- Section 140 of the CGST Act enables a registered person to take in its electronic credit ledger, the amount of CENVAT credit/input tax credit carried forward in the return for the period up to 30/6/2017. Sub-section (5) of Section 140 prescribed a condition for taking transitional credit. The condition is that the invoice or any other duty or tax paying document pertaining to the transitional credit has to be recorded in the books of account of the registered person within thirty days from the appointed day. i.e., within 30th July, 2017. Proviso to the said Section permits such entry of invoice in the books of account beyond the thirty days period by a further period of thirty....... + More
2023 (11) TMI 1153
Input Tax Credit (ITC) - Failure of the supplier to deposit the Tax / GST amount - Failure to produce the Tax Invoice - constitutional validity of provisions of Section 16(2)(c) of the CGST Act and Rule 36(4) of the Central Goods and Services Tax Rules - HELD THAT:- It is settled that input tax credit is in the nature of a benefit/concession and not a right extended to the dealer under the statutory scheme. The said benefit can accrue to the assessee only as per the scheme of the statute - It is equally settled that the rule-making authority can provide restrictions in extending the concession . The benefit of an input tax credit can be availed by a purchasing dealer who sells or manufactures goods using raw materials on which tax has been paid only on satisfaction of the conditions for such availment enumerated in the statute. O....... + More
2023 (11) TMI 1152
Denial of claim for transitional credit in respect of inward supplies made before 01.07.2017 - petitioner s application for extending the limitation for claiming the transitional credit within the extended period of limitation of sixty days rejected - HELD THAT:- From perusal of Sub-section (5) of Section 140 of the GST Act, it is evident that beyond the period of thirty days an assessee can claim the transitional credit of input tax within another thirty days on an order passed by the Commissioner. Unless the order is passed by the Commissioner extending the period of limitation up to sixty days or less than, an assessee cannot claim the input tax credit in respect of the inward supply taken before 01.07.2017 - In the present case, the petitioner claimed input tax credit in his return after the initial period of thirty days expired, b....... + More
2023 (11) TMI 1113
Refund of accumulated Input Tax Credit (ITC) - Turnover of Zero-rated supplies - mistake in submission of documents through common portal while filing applications in form GST RFD -01 - GST officer observed that, Shipping bills were not signed by appropriate authorities or obtained sanctioned from higher official as such those shipping bills cannot be accepted as valid proof of export - HELD THAT:- The applicant has uploaded the documents which are required by the Circular. Only mistake was made by the petitioner is that he had uploaded the quadruplicate copy of the shipping bills which was countersigned by the Inspector of Customs. Subsequently, when it came to know about the anomalies, the petitioner has submitted the triplicate copy which was countersigned by the Superintendent of Customs before the Authority for consideration but ....... + More
2023 (11) TMI 1112
Refund of unutilized Input Tax Credit (ITC) - zero-rated supply - Clubbing of invoices - HELD THAT:- Admittedly the refund claim was for an aggregate amount of Rs. 10,09,000/-. The refund has been allowed only for Rs. 6,86,121/-. There has also been deduction on account of an invoice being no. EXP/2021-22/005 for Rs. 4,76,626/- - In such view of the matter the Appellate Authority in clubbing the refund claim of the petitioner with the invoice no. EXP/2021-22/005 dated 28 February, 2022 and in passing the impugned order has acted contrary to law. The clubbing or taking into account of this particular bill was without authority of law. Even if a portion of the claim was rejected, the simultaneous recovery was impermissible. The portion of the order whereby Output Tax Invoice no. EXP/2021- 22/005 for Rs. 4,67,626/- has been denied and ....... + More
2023 (11) TMI 1063
Suspension of registration of petitioner - no opinion recorded as stipulated under Rule 21A (2) of the CGST Rules, 2017 - principles of natural justice - HELD THAT:- As the petitioner has already submitted his reply to the show cause notice dated 12.10.2023, it would serve no purpose to keep the petition pending and therefore, the petition is disposed of with a direction to the respondent no.3, Assistant Commissioner/Superintendent Range-34, Division Hapaur, Commissionerate Noida to complete the proceedings instituted through show cause notice dated 12.10.2023 within three weeks from today and till the proceedings under Section 29 of CGST Act, 2017 are completed by the respondent no.3, the suspension of the registration of the petitioner as noted in the order dated 12.10.2023 shall remain stayed. Petition disposed off.
2023 (11) TMI 1062
Levy of IGST - supplies received from its holding company - secondment of employees - Reverse Charge Mechanism - HELD THAT:- Prima facie, salaries paid to employees, even though seconded by a foreign affiliate, in terms of the employment agreements with the respective employees, absent anything more, cannot be considered as payment for manpower services supplied by the foreign affiliate. List on 10.01.2024 - In the meanwhile, the proceedings pursuant to the impugned SCNs are stayed.
2023 (11) TMI 1061
Refund of GST (amount paid twice) - tax paid in respect of arecanuts that were being transported without a valid E-Way Bill - HELD THAT:- The petitioner s grievance arises on account of his inability to file an application for refund online. It is stated that there is no option available in the portal for the petitioner to apply for a refund online - Undisputedly, the tax penalty and fine quantified in GST MOV-10 dated 28.02.2022, cannot be collected twice over. The respondent authorities are, thus, required to refund the same. It is considered apposite to dispose of the petition by permitting the petitioner to make an application for refund manually to Respondent No. 3 - petition disposed off.
2023 (11) TMI 1060
Principles of natural justice - cancellation of GST registration of petitioner - cancellation without issuance of any SCN or without affording the petitioner, any opportunity to be heard - HELD THAT:- According to the petitioner, it did not receive the SCN. However, even if the respondent s contention is accepted that a SCN, a copy of which is handed over, was, issued to the petitioner, the same would be of little assistance to the respondent because the SCN does not mention any time or date for personal hearing. Thus, the petitioner was not afforded a hearing to contest the SCN. The impugned order cancelling the petitioner s registration is void as it has been passed in violation of the principles of natural justice - the impugned order is not informed by reason. It does not set out any ground for cancelling the petitioner s GST regis....... + More
2023 (11) TMI 1059
Seeking grant of bail - invocation of Section 438 of the Code of Criminal Procedure at the stage of summons - HELD THAT:- Admittedly, no steps were taken by the Department under Section 69 of the Central Goods and Services Tax Act, 2017, though the petitioner had been appearing over a period of time. The Honourable Supreme Court in THE STATE OF GUJARAT ETC. VERSUS CHOODAMANI PARMESHWARAN IYER ANR. ETC. [ 2023 (7) TMI 1008 - SUPREME COURT] held that at the stage of summons the person summoned cannot invoke Section 438 of the Code of Criminal Procedure. The Criminal Petition is disposed off.
2023 (11) TMI 1058
Seeking review of assessment order - Input Tax Credit - Even though statutory notices were issued to the appellant, she did not respond - violation of principles of natural justice - HELD THAT:- What is sought by the appellant, in effect, is the review of the said assessment order. The appellant made no case for rectification. The rectification under section 161 of the GST Act is permissible only when there are errors apparent on the face of the record, in a situation where the show cause notice was contested, which is not the case here. When a show cause notice is not contested, the resultant order passed assumes the nature of an agreed order and a rectification application will not lie to correct a factual mistake therein. There are no merit in the appeal - appeal dismissed.
2023 (11) TMI 1057
Validity of SCN - petitioner did not avail the opportunity of hearing - petitioner claimed ITC, but did not file GST-ITC 02 electronically as per Section 18 of CGST Act and Rule 41 of the CGST Rules 2017 - HELD THAT:- The question, if electronically filing in GST-ITC 02 could not be because of some technical error, non-availability on GST portal of such Form at the relevant point of time, is a question, which can be duly considered and decided if such plea is taken in the objections pursuant to the show cause notice, by the competent authority. Even if it could not be filed electronically for the reason as mentioned in the letter of the petitioner and also of TDN and manual filing could have been done or the petitioner could have waited for some period for availability of GST-ITC 02 Form on the portal, is also a question, which can be ....... + More
2023 (11) TMI 1056
Exemption from GST - activities carried by DISCOMS against recovery of charges from consumers under State Electricity Act - guarantee provided by State Government to state owned companies against guarantee commission - HELD THAT:- The petitioner was neither collecting nor depositing GST, in respect of the services in question, prior to the issuance of the impugned circular. However, notwithstanding that paragraph No. 4 of the circular was quashed by the Gujarat High Court, the petitioner has continued to collect GST from its consumers and deposit the same with the GST authorities. Resultantly, the consumers are now burdened with the liability to pay GST in respect of services, which according to the petitioner are exempt from the levy of GST - it is found difficult to accept that the petitioner could collect any GST from its consumers ....... + More
2023 (11) TMI 1055
Seeking grant of Regular Bail - involvement in utilizing bogus Input Tax Credit (ITC) through fake documents - mala fide intention of not paying taxes - HELD THAT:- From the record it is apparent that the petitioner is in custody since 20.09.2022 i.e for the last more than one year. All the offences are triable by the Court of Magistrate and the conclusion of the trial may take quite a long time. Thus, the fact as to whether the FIR in the present case is maintainable or not, shall be adjudicated by the Trial Court during the course of trial. The petitioner is ordered to be released on bail subject to his furnishing bail bonds/surety bonds to the satisfaction of the trial Court/Duty Magistrate/Chief Judicial Magistrate - Petition allowed.
2023 (11) TMI 1054
Validity of assessment order - against Ext.P1 assessment order, the petitioner has filed Ext.P2 appeal and Ext.P3 stay application - HELD THAT:- No decision has been taken on the stay application. Learned counsel also submitted that the appeal is on time. Learned counsel further submitted that pending consideration of the appeal and stay application, Ext.P4 demand notice has been issued. Considering the aforesaid facts, the present writ petition is disposed of with a direction to the 2 nd respondent to consider and pass orders on Ext.P3 stay application of the petitioner in accordance with law, within a period of one month. For a period of one month, Ext.P4 notice shall not be given effect.
2023 (11) TMI 1053
Exemption from GST - activity of affiliation - two colleges affiliated to Bharathiyar University, Coimbatore - whether the services provided by it to its constituent colleges such as the petitioners viz., self-financing and Management Colleges, were exempted from GST vide Entry 66 of Notification No.12/2017-CT (Rate) dated 28.06.2017, or not - HELD THAT:- There is no ambiguity in the language in Entry b (iv) to Entry 66 to Notification No.12/2017 CT (Rate) dated 28.06.2017 as amended by Notification No.2/2018-CT dated 25.01.2018. Entry b (iv) to Entry 66 to Notification No.12/2017 CT (Rate) dated 28.06.2017 as amended by Notification No.2/2018-CT dated 25.01.2018 is applicable only for services relating to examination or conduct of examination by petitioner colleges in W.P.No.11038 of 2022 W.P.No.5967 of 2023 and not to work rela....... + More
2023 (11) TMI 1052
Seeking grant of bail - avalling and passing on of ineligible ITC on the strength of fake invoices issued without actual supply of goods - HELD THAT:- In the present matter, the tax liability above bailable offence of 5 Cr. is Rs. 38,81,443, the entities who supplied articles to the applicant are active on GST Portal but not verified by the department, there is no chance of accused fleeing from the country nor he is a habitual offender and applicant is no more required for custodial interrogation when the custodial interrogation of applicant was not sought by the department and applicant was sent to judicial custody directly on 14.10.2023, the offence falls within preview of Section 41 A CrPC having punishment of 5 years but no notice u/s 41 A CrPC has been given, therefore, in view of the abovesaid facts and circumstances, the present....... + More