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GST - Case Laws
Showing 41 to 60 of 1693 Records
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2020 (12) TMI 1046 - MADHYA PRADESH HIGH COURT
Direction to respondent no.2 and 3 to consider the claim of petitioner Firm who submits their claim for granting the adjustment and credit of Excise duty for the stock which was available on the date when the GST was made applicable in the interest of justice - HELD THAT:- Shri Seth, learned counsel for the respondent Nos.2 and 3 was requested to seek instructions and on instructions, it is submitted that on petitioner's filing a representation to the Central Goods & Services Tax Authority, the same shall be considered objectively.
The petition is disposed off with a direction to the petitioner to file a representation before the Central Goods & Services Tax Authority. In case, the representation is filed within a period of 15 days, the Authority concerned shall consider the representation objectively and decide the same expeditiously, however, not later than 45 days from receiving the representation. It is made clear that we have not expressed any opinion on the merits of the matter.
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2020 (12) TMI 1045 - KERALA HIGH COURT
Detention of goods alongwith the vehicle - There was no e-way bill accompanying the consignment. - Individual consignment (out of many) had a value of less than ₹ 50,000/- - goods detained have already been released on Bank guarantee - appellant vehemently argues that the proceedings initiated itself are without jurisdiction - HELD THAT:- Explanation 2 defines the consignment value of goods to be that declared in an invoice, a bill of supply or a delivery chalan including the goods and services tax payable with any Cess charged. Sub-Rule (1) read with Explanation 2 leads to only one inference that the consignment value has to be determined from the invoice. But when goods of the same consignment covered by multiple invoices exceed the limit of ₹ 50,000/-, necessarily there should be generation of e-way bill. Otherwise the mandate for generation of an e-way bill would be defeated and rendered redundant enabling the consignors to issue any number of bills having value below ₹ 50,000/- and consign them in one vehicle. The consignment value is that shown in the invoice. When goods of the same consignor covered by different invoices are consigned together in one vehicle; the value will be the total of that in the multiple invoices.
Appeal dismissed.
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2020 (12) TMI 1044 - KERALA HIGH COURT
Principles of natural justice - it is the contention of the learned counsel for the petitioners that no such records of personal hearing was maintained, and at any rate no copies of the said record of personal hearing were sent to the petitioners - HELD THAT:- Inasmuch as the procedure for maintaining a record of personal hearing was a formal one that was devised to take care of the compliance with the rules of natural justice during the period when the personal hearing had to be undertaken through video conferencing, taking note of the covid pandemic situation, the respondent Appellate Authority ought to have complied with the said procedure strictly.
Inasmuch as in these cases, the said procedure was not complied, it is deemed appropriate to quash the impugned orders and direct the appellate authority to pass fresh orders after complying with the said procedure and after hearing the petitioners - petition allowed by way of remand.
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2020 (12) TMI 1043 - PATAN HIGH COURT
Permission to withdraw the present petition - power under section 50 read with section 75(12) of Bihar Goods And Services Tax Act, 2017 - HELD THAT:- The petitioner, under instructions, seeks permission to withdraw the present petition reserving liberty to file a fresh petition on the same and subsequent cause of action.
Petition dismissed as withdrawn.
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2020 (12) TMI 1042 - GUJARAT HIGH COURT
Vires of Rule 96(10) of the CGST Rules as amended by Notification No. 54/2018-19 Central Tax dated 9.10.2018 - retrospective effect or prospective effect - HELD THAT:- The Coordinate Bench in COSMO FILMS LIMITED VERSUS UNION OF INDIA & 3 ORS. [2020 (10) TMI 1099 - GUJARAT HIGH COURT] took the view that the notification No. 54 of 2018 should be made applicable with effect from 23.10.2017 and not prior thereto i.e. from the inception of Rule 97(10) of the CGST Act.
Mr. Sheth, the learned counsel has drawn our attention to Annexure – A page-20 of the paper book. It is the Notification No. 54 of 2018 dated 9.10.2018. According to Mr. Sheth, the Notification itself makes it clear that the same shall come into force from the date of its publication in the official gazette - According to Mr. Sheth, what has been observed in para-9 of the order passed in the Special Civil Application No. 15833 of 2018 needs to be re-looked, as the Department has started issuing notices indiscriminately on the premise that the Notification would apply with effect from 23.10.2017.
Let notice be issued to the respondents returnable on 24.02.2020. Till the next date of hearing, the proceedings pursuant to the notice dated 24.11.2020 Annexure – B shall remain stayed.
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2020 (12) TMI 1041 - PUNJAB AND HARYANA HIGH COURT
Grant of Regular Bail - wrongful adjudged input tax credit resulting in loss of tax to the Government exchequer to the extent of ₹ 2.24 crores - HELD THAT:- The condition in the impugned order with regard to the payment of ₹ 2,24,46,239/- alongwith interest is set aside and the bail bonds of ₹ 50 lakhs with one surety in the like amount are reduced to ₹ 25 lakhs which may be in the form of immovable property to the satisfaction of the Illaqa Magistrate/Duty Magistrate, Panipat - The impugned order passed by the Additional Sessions Judge, Panipat dated 11.12.2019 is modified only to the extent above and the other conditions therein are ordered to remain intact.
Petition allowed in part.
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2020 (12) TMI 1040 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - allegation that the benefit of reduction in the rate of tax and the benefit of Input Tax Credit which was required to be passed on to the eligible recipients as per the provisions of section 171 (1) of the Central Goods & Service Tax (CGST) Act, 2017, not passed on - HELD THAT:- On the issue of reduction in the tax rate, it is apparent from the DGAP's Report that there has been no reduction in the rate of tax in the post GST period, i.e. after 2017. Hence, the only issue to be examined is whether there was any benefit of ITC to the Respondent upon the introduction of GST.
The DGAP has reported that the Respondent had obtained the Commencement Certificate (CC) for the project “Golf Meadows Godrej City, Panvel (Phase-II)” on 07.09.2018 and for the project “EWS” on 11.05.2018. The DGAP has also verified that the project “Golf Meadows Godrej City, Panvel (Phase-II)” was registered on 11.10.2018 by Maharashtra RERA and the first booking in the above project was made on 02.11.2018. The DGAP has further observed that the project “EWS” was not registered under Maharashtra RERA and the Respondent had not sold any EWS unit as of 31.12.2019. The DGAP has further found that the projects “Golf Meadows Godrej City, Panvel (Phase-Il)" and "EWS" had been launched in the post-GST regime and there was no price history of the units sold in the pre-GST regime that could be compared with the post-GST base prices to establish whether there was any profiteering by the Respondent or not. In terms of the provisions of the RERA Act, bookings in the project could not happen till the registration was obtained. Since the registration was obtained for the subject projects post the introduction of Goods and Services Tax only, the provisions of Section 171 dealing with Anti-profiteering could not be made applicable to the said project in the view of the fact that there was no additional ITC that had been utilized by him, which was relevant for establishing any allegation of profiteering.
The DGAP has reported that the Respondent had neither benefited from additional ITC nor had there been a reduction in the tax rate in the post-GST period and therefore it did not qualify to be a case of profiteering - the instant case does not fall under the ambit of Anti-Profiteering provisions of Section 171 of the CGST Act, 2017.
The proceedings are dropped.
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2020 (12) TMI 1039 - COMMISSIONER (APPEALS) CENTRAL GOODS AND SERVICE TAX, JAIPUR
Refund of the tax paid - tax paid under protest - Reverse Charge Mechanism - refund claim rejected on the ground that the appellant has not submitted the final outcome of the referred SCN whether the issue has been finally decided in favour of the assessee or not - HELD THAT:- The refund claims filed by the appellant is not covered by any of the refund category mentioned in Section 54 and claimed under any other category and there is no specific provision for refund of the tax paid under RCM.
The appellant bas mainly contested in their appeal memo that the adjudicating authority has passed the ex-parte order and had not granted any opportunity of hearing and rejected the refund claim filed by them. Further, they stated that the show cause notice dated 14.10.2019 for fixing the date of personal hearing in the matter fixed on 18.10.2019 was received on 16.10.2019, since the matters are being handled centrally from their Corporate Centre, Mumbai and not possible at a very short period of time to attend the hearing - But instead of giving some time and accepting the request of the appellant for seeking of time to submit the reply, the adjudicating authority has passed the Orders-in-Original rejecting the refund claims filed by the appellant. Thus, the appellant did not avail the opportunity of personal hearing and without considering his submission the adjudicating authority has passed the order.
The adjudicating authority while rejecting the refund claims of the appellant neither considered their first request for seeking 15 days time to submit reply to show cause notice nor granted any sufficient opportunity of time to attend the personal hearing despite their written request dated 22.10.2019 - Also, non-passing of speaking order indeed amount to denial of natural justice. Before passing of orders atleast their request for seeking 15 days time to submit their reply to show cause notice should have been considered and at least speaking order should have been passed by giving proper opportunity of personal hearing to the appellant and detailing factors leading to rejection of refund claims. Such order is not sustainable in the eyes of law and accordingly set aside.
Appeal allowed by way of remand.
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2020 (12) TMI 997 - MADHYA PRADESH HIGH COURT
Permission to allow the petitioners', their employees / representatives to have presence of their Advocate at a visible but not audible distance during the course of interrogation and / or recording of their statement - petitioners are apprehensive that coercive attempts may be made to extort confession from them - HELD THAT:- This Court, in light of the order passed by Hon'ble Supreme Court from time to time, as in similar circumstances the apex Court directed that the advocate of the petitioner should be allowed to be present during the interrogation of the petitioner, is of the opinion that the advocate of the petitioners are to be allowed to be present during the interrogation of the petitioners. It is further clarified that he/they should be made to sit at a distance beyond hearing range, but within visible distance and the lawyer must be prepared to be present whenever the petitioners are called upon to attend such interrogation.
Petition allowed in part.
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2020 (12) TMI 945 - KERALA HIGH COURT
Detention of goods alongwith the vehicle - goods detained by the respondent for the reason that the transportation of the goods was not accompanied by a valid e-way bill - Section 129(3) of the GST Act - HELD THAT:- Taking note of the request of counsel for the petitioner for permission to clear the goods and the vehicle on furnishing a bank guarantee for the amount demanded in Ext.P3, the writ petition is disposed off by directing that if the petitioner furnishes a bank guarantee for the amount demanded in Ext.P3 notice, then the respondent shall release the goods and the vehicle to the petitioner, and thereafter proceed to adjudicate the matter, after hearing the petitioner, under Section 129(3) of the GST Act.
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2020 (12) TMI 944 - DELHI HIGH COURT
Seeking quashing of the selection of the respondent No.4 as L-1 bidder - seeking declaration that the bid of the respondent No.4 should be rejected as being non-responsive - It is the contention of the petitioner that the bid of the respondent No.4 does not comply with the tender conditions viz Clause 6.10.3, Clause 6.10.5 and 18 of the “Instructions to the Bidders” and it ought to have been rejected as non-responsive - HELD THAT:- The bidder had to indicate the exact rate of customs duty and applicable item of custom tariff under which it is covered. The amendment dated 04.01.2019 whereby a new Clause 6.10.5 was introduced, mandated that the tenderer had to state in its offer, the GST etc. whichever is applicable in India, over and above the prices being quoted. Instruction 7 of Annexure-1 prescribed that the bidders must not indicate the separate discount, if any. A perusal of the technical bid shows that the petitioner has indicated the rate of the GST which was applicable. However, in the commercial bid, respondent No.4 has indicated "000" against the column "total amount of GST/IGST" meaning thereby, that respondent No.4 was not passing on the tax element to the respondent No.1 to 3/Prasar Bharti.
As rightly submitted by Mr. Sharma, learned counsel for the respondent No.1 to 3/Prasar Bharti that there is nothing in the tender which shows that it is mandatory for a bidder to pass on the tax element to respondent No.1 to 3/Prasar Bharti. It is up to the bidder to decide whether or not to pass on the tax element to the respondent No.1 to 3/Prasar Bharti. It is not mandatory in law that a dealer has to collect the tax from the purchaser and pass it on to the Government. A dealer is permitted to absorb the tax element in the price offered. The Government is only interested in getting the tax payable on the sale and is not concerned as to whether the tax element is passed on to the consumer or not. In this view of the matter, there are no anomaly in the decision making process adopted by the respondent No.1 to 3/Prasar Bharti.
Since it is not necessary to pass on the tax element to the consumer and the respondent No.4 has decided to absorb the tax element in the cost of the products itself, respondent No.1 to 3/Prasar Bharti was justified in coming to the conclusion that the respondent No.4 is L-1 - there are no fault in the approach adopted by the respondents No.1 to 3/Prasar Bharti.
There are no flaw in the decision making process adopted by the respondent No.2. Nor can the decision of the authority be said to be so arbitrary or irrational, that would warrant interference under Article 226 of Constitution of India - petition dismissed.
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2020 (12) TMI 943 - GUJARAT HIGH COURT
Permission for withdrawal of writ application - Detention of goods alongwith vehicle - Section 130 of the CGST Act, 2017 - HELD THAT:- After arguing the matter for some time and as this Court was not inclined to interfere at the this stage of show cause notice, Mr. Dave, made a request that he may be permitted to withdraw this writ application leaving it open for him to raise all the legal contentions available to him including the issue of jurisdiction.
Application disposed off.
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2020 (12) TMI 942 - GUJARAT HIGH COURT
Revocation of cancellation of registration - Section 30 of the CGST Act - the consultant of the writ applicant inadvertently applied on 06.07.2020 for cancellation in Form REG-16. - HELD THAT:- The Commercial Tax Officer, GST, Ghatak- 58, Surat, should immediately look into the two applications filed by the writ applicant under Section 30 of the Act and pass appropriate order in accordance with law after giving an opportunity of hearing to the writ applicant.
This writ application is disposed off with a direction to the respondent No.2 herein, to hear the writ applicant at the earliest and pass appropriate order in accordance with law within a period of 8 days from the date of receipt of this order.
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2020 (12) TMI 941 - KERALA HIGH COURT
Maintainability of petition - availability of alternative remedy of pursuing the appeal - HELD THAT:- The writ petition is disposed by relegating the petitioner to his alternative remedy of pursuing the appeal before the appellate authority. It is made clear, however, that the Bank Guarantee furnished by the petitioner (Ext.P12) at the time obtaining a release of the detained goods and vehicle from the respondent, shall be kept alive by the petitioner during the pendency of the appeal, and on that condition, the respondent shall refrain from invoking the Bank Guarantee for a period of two months from today.
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2020 (12) TMI 940 - DELHI HIGH COURT
Grant of Interim Bail - respondents have not been able to specify the offence committed by the applicant - HELD THAT:- Plainly, the issues involved in the present application require examination - A status report and the supplementary status report has been filed. Mr Gupta, learned senior counsel seeks time to examine the same and file response, if necessary.
The applicant is directed to be released on interim bail on his furnishing a Personal Bond in the sum of ₹1 lakh with two sureties of the like amount to the satisfaction of the trial court/duty magistrate - List for hearing on 19.01.2021.
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2020 (12) TMI 939 - KERALA HIGH COURT
Refund of excess cash deposited - Balance in Electronic Cash ledger - It is the case of the petitioner that a considerable quantity of the sales effected by it is to SUPPLYCO and FACT, who deduct tax at the rate of 2% on payments made to the petitioner in terms of Section 51 of the GST Act - HELD THAT:- From a perusal of Ext.P4 order that is impugned in the writ petition that the 2nd respondent has completely misunderstood the nature of the claim made by the petitioner as also the scope and ambit of Sections 51 and 54 of the CGST Act. In the instant case, as is evident from the facts stated in the writ petition as also from a perusal of the claim for refund preferred by the 2nd respondent, what the petitioner was essentially claiming was the refund of the balance remaining in the Electronic Cash Ledger, that was maintained in accordance with the provisions of the Act. Section 54(1) deals with claims for refund of any tax and interest or other amount paid by the assessee, and the proviso to Section 54(1) deals with claim for refund of any balance in the Electronic Cash Ledger.
In the instant case, it is not in dispute that during the period for which the refund was claimed by the petitioner assessee, there was no outstanding liability towards tax, interest, penalty or any other amount under the Act, and there were excess amounts in the Electronic Cash Ledger of the petitioner-assessee that could be considered for refund to him in terms of the first Proviso to Section 54 of the Act. The 2nd respondent, however, misdirected himself and treated the claim for refund preferred by the petitioner as one relating to Section 51(8) of the Act. It has to be noted that at no stage did the petitioner have a case that the deduction of tax at source by SUPPLYCO/FACT was excessive or erroneous. That being the case, there was no occasion for the 2nd respondent to have considered the application as one traceable to Section 51(8) of the Act. The only exercise that had to be done by the 2nd respondent was to ascertain whether there was a balance in the Electronic Cash Ledger, after meeting the known liabilities of the petitioner towards tax, interest or any other amount under the Act, and if there was such a balance, the refund had necessarily to be granted to the petitioner.
Ext.P4 order of the 2nd respondent cannot be legally sustained - the 2nd respondent is directed to ascertain the excess amount lying to the credit of the petitioner in his Electronic Cash Ledger after making provision for any known and determined liability of the petitioner towards tax, interest, penalty or other amounts under the Act - Petition allowed.
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2020 (12) TMI 938 - ALLAHABAD HIGH COURT
Grant of Bail - evasion of GST - Applicant is being summoned for the reason that there has been some business transactions between the two companies which are allegedly not disclosed by the said company and the same are being enquired into for the purposes of collection of GST - HELD THAT:- This Court is of the opinion that since there have been summons and notices to the applicant for appearance in the inquiry relating to evasion of GST by the said company wherein, the applicant has been called upon, he is directed to appear before the competent authority whenever he is called upon by the concerned authorities. The applicant shall file his bail bond of ₹ 50,000/- and two sureties each in the like amount with an undertaking that he shall appear and co-operate in the assessment proceeding as and when required, to the satisfaction of the officer concerned, in which one of the sureties will be of his family members. In the event, the applicant does not respond to any of the summons/notices issued to him by the competent officer, this order shall stand vacated.
Application disposed off.
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2020 (12) TMI 937 - PUNJAB & HARYANA HIGH COURT
Grant of anticipatory bail - evasion of GST - bogus bills - It is alleged that the tax was being evaded by ensuring that there was no checking or verification of the documents or goods, while being transported to & from State of Punjab - HELD THAT:- It would be necessary to glance at working of Goods and Services Tax (GST). With the introduction of GST regime, one of the object worked upon was free movement of goods, by removal of barriers and Information Collection Centres. The responsibility was shifted upon the Excise and Taxation Officers/ officials and more so on the mobile wing of the department. Under the GST, there is an inter-connected chain of sellers and purchasers as the purchaser gets the credit of tax paid or suffered by seller. The chain can be within the State or PAN-India. One link in the chain being ingenuine, doctored or nonexistant, would impact the entire chain.
The nature of allegation in present case of evasion of GST requires a deeper probe. There are far reaching ramifications which may vary from allowing of input credit/ MODVAT of tax not paid to the Government to an eventuality that the credit of tax paid on some other product is used for something else. Not only this, someone later in chain in spite of being a bonafide purchaser not aware of the earlier misdeed in the chain yet will have to suffer the consequences - The allegation in the present case are very serious. There is alleged connivance of the transporters, passers and the officials to facilitate the evasion of tax. The investigation is going on, it appears that the officials were being paid bribe on monthly basis.
The investigating agency had initiated action on the basis of the the information. The allegations against the petitioner is that he is running a transport business and in connivance with the officials of Excise and Taxation Depatment, a racket is being run with the help of others to dent the public exchequer. The contention of learned counsel for the petitioner that no recovery is to be made is not well founded. Merely the fact that the computers and registers are already with vigilance department would not be enough to say that custodial investigation of the petitioenr is not required. Rather it is during investigation of the petitioenr that full picture would emerge - The material evidence is in possession of the petitioner. He is in a position not only to help himself out by not producing or tampering with the evidence but would be of great help to the official of the Excise and Taxation Department named in the FIR. From the pleadings and arguments it is forth coming that it was a well knitted trap for evasion of tax. The officials were being paid on monthly basis and the petitioner was in a position to even negotiate for the monthly payment to be made.
There is no quibble that the liberty of a person is of utmost importance. But when personal liberty is pitted against a sovereign function i.e. collection of tax which is life blood of the economy, the latter would prevail. Present is a case where arrest is imperative for fair and full investigation - Considering the complexity of the issue, the tax impact on chain of sellers and purchasers, the material as on date with the investigating agency, the multi dimensional aspects involved which needs a deeper probe, no case is made out for grant of pre-arrest bail.
Petition dismissed.
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2020 (12) TMI 936 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - purchase of Shop - allegation that the Respondent had not passed on the benefit of input tax credit to him by way of commensurate reduction in price - contravention of section 171 of CGST Act - penalty - HELD THAT:- The Applicant No. 1 had alleged that the Respondent was not passing on the benefit of ITC to him on the Shop No. GF-0131-A, which he had purchased in the “Mercado” Project being executed by the Respondent in Sector-42, Gurugram, in spite of the fact that he was availing ITC on the purchase of the inputs at the higher rates of GST which had resulted in benefit of additional ITC to him and was also charging GST from him @12%. This complaint was examined by the Standing Committee on Anti-Profiteering and was forwarded to the DGAP for investigation who vide his Report dated 23.03.2020 has found that the ITC as a percentage of the total turnover which was available to the Respondent during the pre-GST period was 2.66% and during the post-GST period this ratio was 8.57% as per the Table-B mentioned above and therefore, the Respondent has benefited from the additional ITC to the tune of 5.91% (8.57% - 2.66%) of the total turnover which he was required to pass on to the buyers of this Project. The DGAP has also found that the Respondent has not reduced the base prices of his shops by 5.91% due to additional benefit of ITC and by charging GST at the increased rate of 12% on the pre-GST basic prices, he has contravened the provisions of Section 171 of the CGST Act, 2017.
Respondent has contended that the incremental tax paid on the services should not form part of the profiteered amount - HELD THAT:- The benefit of additional ITC has to be computed by comparing the amount of ITC which has become available to the Respondent in the post GST period with the amount of CENVAT and VAT credit which he has availed during the pre GST period and accordingly, the amount of additional ITC has to be passed on by the Respondent to his buyers. Therefore, the ITC amounting to Rs, 1,08,55,599 claimed to have been paid by the Respondent as incremental tax on the procurement of input services cannot be excluded from the total amount of profiteering as it has not been paid by the Respondent from his own account. Accordingly, the above claim of the Respondent cannot be accepted.
Respondent has also contended that the profiteered amount should have been restricted to the ITC availed in respect of goods only - HELD THAT:- The amount of ITC cannot be taken to be ₹ 2,52,00,202/- claimed to be relating to the purchase of the goods for computation of the profiteered amount, as has been asserted by the Respondent. Accordingly, all the above contentions of the Respondent are fallacious and hence they are not tenable.
Respondent has further contended that due to slump in the real estate sector he has incurred additional expenses on marketing and payment of commissions which has resulted in overall increase in the project cost which should have been considered while calculating the profiteered amount - HELD THAT:- It would be appropriate to mention that every builder launches marketing campaigns and pays commission for selling his flats/houses/shops in the normal course of his business which is already built in the cost of every project and hence, the Respondent cannot claim any concession on this ground. Moreover, there is no provision under Section 171 (1) to consider the costs incurred by the Respondent while calculating the profiteered amount. Hence, the above claim of the Respondent cannot be accepted.
Thus, It is established from the perusal of the above facts that the Respondent has benefited from the additional ITC to the extent of 5.91% of the turnover during the period from July, 2017 to June, 2019 as is evident from Table-B supra. It is also apparent from the above that the provisions of Section 171 of the CGST Act, 2017 have been contravened by the Respondent as he has not passed on the benefit of ITC to his buyers. Accordingly, the profiteered amount is determined as ₹ 2,44,80,835/- inclusive of GST @ 12% as has been mentioned in Table-C supra, in terms of Section 171 (1) read with Rule 133 (1). The Respondent has realized an additional amount of ₹ 66,463/- which includes both the profiteered amount @ 5.91% of the taxable amount (base price) and 12% GST on the said profiteered amount from the Applicant No. 1. He has also realized an additional amount of ₹ 2,44,14,372/- which includes both the profiteered amount @ 5.91% of the taxable amount (base price) and 12% GST on the said profiteered amount from the 228 shop buyers other than the Applicant No, 1. The details of the profiteered amount and the buyers have been mentioned by the DGAP in Annexure-14 of his Report dated 23.03.2020. These buyers are identifiable as per the documents placed on record. Therefore, as per the provisions of Section 171 (1) read with Rule 133 (3) (b) the Respondent is directed to pass on an amount of ₹ 2,44,80,835/- and an amount of ₹ 66,463/- to the other flat buyers and the Applicant No. 1 respectively along with the interest @ 18% per annum from the dates from which the above amount was collected by him from them till the payment is made, within a period of 3 months from the date of passing of this order as per the details mentioned in Annexure-14, attached with the Report dated 23.03.2020.
Penalty - HELD THAT:- Perusal of the provisions of Section 171 (3A) under which penalty has been prescribed for the above violation shows that it has been inserted in the CGST Act, 2017 w.e.f. 01.01.2020 vide Section 112 of the Finance Act, 2019 and it was not in operation during the period from 01.07.2017 to 30.06.2019 when the Respondent had committed the above violation and hence, the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively. Accordingly, notice for imposition of penalty is not required to be issued to the Respondent.
This Authority as per Rule 136 of the CGST Rules 2017 directs the Commissioners of CGST/SGST Haryana to monitor this order under the supervision of the DGAP by ensuring that the amount profiteered by the Respondent as ordered by this Authority is passed on to all the eligible buyers. A report in compliance of this order shall be submitted to this Authority by the Commissioners CGST /SGST through the DGAP within a period of 4 months from the date of receipt of this order.
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2020 (12) TMI 903 - AUTHORITY FOR ADVANCE RULING, KARNATAKA
Maintainability of Advance Ruling Application - question raised in the application is already pending or decided in any proceedings in the case of applicant under any provisions of this Act - Section 98 (2) of the CGST Act 2017 - Classification of services - Licensing services for the right to broadcast and show original films, sound recordings, Radio & Television Programmes etc. - HELD THAT:- The instant application has been filed on 22.09.2020 and the question raised there in is about the classification of the services being provided by the applicant. It is an undisputed fact that a search, of applicant's registered premises, was conducted by the Superintendent of Central Tax, Anti Evasion, Bangalore West Commissionerate under authorization issued by the competent authority on 30.08.2019, a Statement was recorded on 31.08.2019, an offence case was booked on 11.09.2020 and DRC-01A dated 09.07.2020 was issued on the issue of suppression of taxable value. Further, a summon dated 03.09.2020 was issued seeking clarification on the question of classification. The applicant vide letter dated 08.09.2020 to the Department sought a notice on the issue and informed that they will take up the matter of classification with Karnataka Film Chamber of Commerce and CBIC. It is pertinent to mention here that the DRC-01A dated 10.09.2020 clearly specified the grounds of quantification out of which one issue is the “Wrong classification resorted under self assessment by the applicant, under SAC 9973 instead of SAC 9996 14”. Thus it is clearly evident that the issue of classification of the services provided by the applicant was under investigation as evident from DRC-01A dated 10.09.2020.
Rule 142[1A] of the CGST Rules 2017, as amended, stipulates that the proper officer may, before service of notice to the person chargeable with tax, interest and penalty, under sub-section (1) of Section 73 or sub-section (1) of Section 74, as the case may be, communicate the details of any tax, interest and penalty as ascertained by the said officer, in Part A of FORM GST DRC-01A. Further the said form is prescribed one and contains a reference of the case proceedings, which clearly indicates that proceedings have been initiated and are not concluded. Thus it proves that the case proceedings are pending.
The issue raised in the instant application and the issue pending under the proceedings are one and same i.e. classification of the services provided by the applicant. Thus first proviso to Section 98(2) of the CGST Act 2017 is squarely applicable to the instant case, as all the conditions therein are fulfilled - the application is rejected as “inadmissible”, in terms of first proviso to Section 98(2) of the CGST Act 2017.
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