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GST - Case Laws
Showing 41 to 60 of 154 Records
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2021 (11) TMI 862 - MADRAS HIGH COURT
Release of seized goods alongwith conveyance - exempt goods - Section 129 of the TNGST Act, 2017 - HELD THAT:- Considering the fact that the order has been passed under Section 130 of the TNGST Act, the impugned order dated 27.09.2021 stands quashed and the same shall be treated as Show Cause Notice issued under Section 129 of the TNGST Act, 2017.
The petitioner is directed to comply with the requirements of Section 129 of the TNGST Act, 2017. If the petitioner pays the amount as is completed under Section 129 of the TNGST Act, the respondents shall release the vehicle. It is made clear that the respondents shall accept the amounts if the same is tendered by the petitioner.
Writ Petition stands disposed of.
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2021 (11) TMI 861 - AUTHORITY FOR ADVANCE RULING, TELANGANA
Classification of services - rate of GST - Input tax credit - Air Conditioned Stage Carriage - inward supply of services received from the suppliers who are in the same line of business - Sl.No.8 (ii)(b) and Sl.No.8(vi) of Notification No. 11/2017-Central Tax (Rates), dt: 28-06-2017 - option of 12% (6% each towards CGST & SGST) with no conditions attributed to it is applicable or not - HELD THAT:- The service mentioned at Sl.No.8(ii)(b) is “Air Conditioned Stage Carriage” whereas the service mentioned at Sl.No.8(vi) is transport of passengers in any motor vehicle designed to carry passengers where the cost of fuel is included in the consideration charges from the service recipient. Evidently though both the entries deal with motor vehicles for carrying passengers, the entry at Sl.No.8(vi) is a general entry whereas the entry at Sl.No.8(ii)(b) is the specific entry, i.e., Air Conditioned Stage Carriage. And it is the principle of interpretation of statute that general things do not derogate from special things and therefore that special provision prevails over the general provision.
As the applicant has stated that they will be in the business of passenger transport in Air conditioned buses as stage carriages, the applicable entry in view of the above discussions is Sl.No.8(ii)(b) of Notification No.11 of 2017, dt: 28-06-2017 - Further they are liable to pay tax at the rate of 2.5% under CGST & SGST respectively if they are not claiming any ITC on goods and services used in supplying service in the said entry.
There is no exclusion of services from other taxable persons in the same line of business from this condition, as the entry clearly mentions that ITC should not be taken on “Goods & Service used in supplying the service”. Therefore if they are recipient of services from other suppliers who are in the same line of business and would like to claim a lower rate of tax under Sl.No.8(ii)(b), they cannot claim the credit of input tax charged on services from these other suppliers of similar service - the entry Sl.No.8(vi) is not applicable to the nature of business of the applicant.
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2021 (11) TMI 860 - AUTHORITY FOR ADVANCE RULING, TELANGANA
Classification of services - telecom services provided by Airtel to Greater Hyderabad Municipal Corporation (GHMC) - Nil rated under GST as per the S. No. 3 of Notification No. 12/2017- Central Tax (Rate) dated 28.06.2017 or not - pure services - functions entrusted under article 243W - Invoices for telecommunication services are to be issued with (or) without GST - HELD THAT:- Under serial no. 3 of Notification No. 12/2017 pure services provided “in relation to any function” entrusted to a municipality under Article 243W of the Constitution of India is eligible for exemption from GST. Clearly the exemption should be directly related to the functions enumerated under Article 243W of the Constitution of India i.e., Responsibilities specified at Sl No.(1) or those functions listed under 12th schedule.
Hon’ble Supreme Court of India in the case of HH. MAHARAJADHIRAJA MADHAV RAO JIWAJI RAOSCINDIA BAHADUR VERSUS UNION OF INDIA [1970 (12) TMI 87 - SUPREME COURT] observed that the expression “relating to” means to bring into relation or establish a relation. It was further clarified that there should be a direct and immediate link with a covenant and that there cannot be any independent existence outside such covenant.
Thus, the applicant is providing data and voice services to GHMC and to the employees of the municipalities and general purpose for office and administrative purposes. Thus there is no direct relation between the services provided by the applicant and the functions discharged by the GHMC under Article 243W read with schedule 12 to the Constitution of India. Therefore these services do not qualify for exemption under Notification No. 12/2017.
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2021 (11) TMI 859 - AUTHORITY FOR ADVANCE RULING, TAMILNADU
Admissibility of application - Classification of services - rate of GST - EPC contract engaged in works, viz; site grading, earth filling, road works, storm water drains, utility corridor, street lighting, water storage and distribution system - civil contractor engaged in civil construction works, viz; prefabricated PUP (polyurethane) Administrative building, training centre, technology facilitation centre, etc. - HELD THAT:- It is evident that an applicant can seek an Advance Ruling only in relation to supply of goods or services or both undertaken or proposed to be undertaken by them. Further, as per Section 103 (1) of the GST Act, the ruling is binding only on the applicant and the concerned officer or the jurisdictional officer of the applicant. In the case at hand, the applicant is the recipient of the services and not supplier of such service.
The application is not admitted, under Section 98(2) read with Section 95 (a) of CGST Act, 2017/TNGST Act, 2017.
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2021 (11) TMI 858 - AUTHORITY FOR ADVANCE RULING, TAMILNADU
Classification of GST - applicant to provide the boarding, lodging facilities and such other agreed services, to AMSL - composite supply or a mixed supply? - principal supply or not - exemption under N/N. 12/2017-CT (Rate) dated 28.06.2017 - difference of opinion - HELD THAT:- The applicant is engaged in the business of hospitality providing boarding, lodging facilities and such other services to AMSL, who is into training youth in various healthcare’ related vocational programs as part of implementation of its projects under Deen Dayal Upadhyay Grameen Kaushalya Yojana (DDU-GKY). AMSL has engaged the applicant to provide the boarding, lodging facilities and such other agreed services, to AMSL in line with the SOP given by the Government of India for the implementation and furtherance of its projects under Id DDU GKY.
As per the terms of agreement entered into by the applicant with AMSL, the consideration payable shall include fixed and variable cost towards accommodation and provision of food and other facilities based on the actual number of candidates availing the services at the hostel. The applicant has stated that, their primary and predominant activity is to provide accommodation to the candidates at the hostel, the supply of food and other amenities is ancillary but an integral part of the principal supply. The applicant has stated that the activity is a composite supply, where the principal supply is accommodation services. The applicant has stated that SAC 996322 shall be applicable to their activities and the services are exempted under Sl.no. 14 of Notification no. 12/2017CT (Rate) dt. 28.06.2017.
From the Schedule of Charges (Schedule III) of the Agreement, it is seen that ₹ 3500/ is fixed towards the Rent per Candidate, per month for regions of Chennai and ₹ 3000/ towards the Rent per candidate for the accommodation per month in any region out of chennai, which translates to per day equivalent tariff of ₹ 117/₹ 100 and the consideration for other supplies is ₹ 183/₹ 150 per day. The total consideration/ equivalent declared tariff as per the agreement for the composite supply per day, amounts to ₹ 300/- ₹ 250/- per candidate per day which is below the specified limit of ₹ 1000 per day. Therefore, I find that the exemption at SI.No. 14 of Notification no.12/2017 CT(Rate) dt.28.06.2017 is applicable to the case in hand.
The supply envisaged in the agreement entered with AMSL is a composite supply of hospitality services in which provision of accommodation, food and other amenities are naturally bundled in the course of business and supplied in conjunction. The provision of accommodation is the principal supply, being provided to all the candidates (headcount wise) and the applicable SAC is 9963 and per day equivalent tariff being less than ₹ 1000, the exemption provided under SI.No.14 of Notification no. 12/2017-CT(Rate) dt.28.06.2017 is applicable to the ease in hand.
In view of the difference in the opinions of the Members, the case is referred to the Appellate Authority for hearing and decision on this issue in terms of Section 98(5) of the CGST/TNGST Act 2017, which provides that where the members of the Authority differ on any question on which the advance ruling is sought, they shall state the point or points on which they differ and make a reference to the Appellate Authority for hearing and decision on such question.
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2021 (11) TMI 821 - DELHI HIGH COURT
Burden to bear the GST amount - Arbitration award- supply of the elevators - Reimbursement of amount payable on account of GST as stated in the tax invoices raised by Kone - input tax credit - contravention of provisions of Section 171 of CGST Act, 2017 or not - jurisdiction/scope of authority of the Hon’ble Arbitral Tribunal as per the provisions of the Arbitration and Conciliation Act, 1996 - Whether GST or DVAT is applicable for the transaction between the parties under the Contract Agreement? - principles of unjust enrichment - Claimant or Respondent is entitled to interests and/or costs or not?
HELD THAT:- It is apparent that the principal dispute before the Arbitral Tribunal remains unadjudicated. The issue struck by the Arbitral Tribunal was whether Kone had erred in not claiming the Input Tax Credit. Thus, the Arbitral Tribunal was required to address the question whether Kone was entitled to claim Input Tax Credit in respect of the Excise duty paid for the lifts in question prior to 30.06.2017 and if so, whether DMRC was obliged to reimburse the GST, notwithstanding, that Kone had not availed of such benefits - It is seen that the Arbitral Tribunal found both the parties wanting for not engaging in joint discussions for exploring the possibility of availing Input Tax Credit under the CGST Act. Accordingly, the Arbitral Tribunal reasoned that both the parties should equally bear the amount of Input Tax Credit that may have been possibly available.
This Court is of the view that since the impugned award does not address the dispute, the impugned award in this regard is liable to be set aside.
It is also relevant to refer to Section 28(2) of the A&C Act. The Arbitral Tribunal might decide “ex aequo et bono or as amiable compositeur” only if the parties have expressly authorized it to do so and not otherwise. The phrase “ex aecquo et bono” means according to equity and conscience. It empowers the arbitrator to dispense with consideration of the law and to take decisions on notions of fairness and equity. The term ‘amiable compositeur’ is a French term and means an unbiased third party who is not bound to apply strict rules of law and who may decide a dispute according to justice and fairness. In view of Section 28(2) of the A&C Act, the Arbitral Tribunal was required to decide the disputes in accordance with law and not render a decision in disregard of the same, in the interest of justice and equity.
It is relevant to note that there was no dispute that Kone had, in fact, paid the GST. It is also not in dispute that DMRC was required to reimburse the GST in addition to the price as fixed. The Arbitral Tribunal had rejected DMRC’s contention that DVAT was payable. In view of the Arbitral Tribunal’s findings, the onus to establish that Kone was entitled to an Input Tax Credit in respect of the Excise duty of ₹1,27,30,042/- rested with DMRC - The Arbitral Tribunal has not rendered any decision in respect of the aforesaid issues and has in fact left the disputes in this regard undecided.
Petition disposed off.
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2021 (11) TMI 820 - ALLAHABAD HIGH COURT
Cancellation of registration of petitioner - absence of any reply being filed to the show cause notice - requirement of granting opportunity of hearing or not - Rule 22 of the Uttar Pradesh Goods and Services Tax Rules, 2017 - HELD THAT:- In the admitted facts of the present case, though no reply may have been furnished by the petitioner still, it was incumbent on respondent no.2 to fix a date and afford opportunity of hearing to the petitioner in compliance of the first proviso to Section 29(2) of the Act. In view of such facts, no useful purpose would be served in keeping in the present petition pending or calling for a counter affidavit as the instructions received by the learned Standing Counsel are complete with respect to the issue being dealt with by the Court.
The order dated 29.06.2019 issued by respondent no.2 is set aside - Petition allowed - decided in favor of petitioner.
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2021 (11) TMI 819 - DELHI HIGH COURT
Search and seizure - Seeking release of seized cash - Revenue alleges concealment of facts - erroneous recovery by the respondents from the petitioner without proper adjudication - HELD THAT:- Admittedly, the search at the residential premises of the Director of the petitioner company was carried out on 04.03.2021. The petitioner made no complaint to the respondents at the relevant time and till the letter dated 12.10.2021 of non-supply of Panchnama and other documents in respect of the search carried out at the premises. Clearly, this plea is being set up as an afterthought by the petitioner. As far as the power to seize cash is concerned, the same need not be adjudicated in the present petition for the reason that it is an admitted fact that on the basis of the representation/letter dated 24.03.2021 referred, the cash amount so seized was released in favour of the petitioner. The said question, therefore, in the present petition is merely of an academic importance and is, therefore, left open to be adjudicated in an appropriate case.
The petitioner clearly stated that the tax liability is being discharged by it ‘voluntarily’ and requested the respondents not to issue any Show Cause Notice in relation to the search and seizure undertaken by it on 04.03.2021. Clearly therefore, the tax amount has been deposited by the petitioner voluntarily and the case of coercion now being set up by the petitioner is an afterthought.
The effect of Subsection (5) and (6) of Section 74 of CGST Act is that the assessee can by making voluntary deposit of tax, interest and penalty avail the benefit of restriction of penalty to only 15% of such tax. In the present case, the petitioner availed of this remedy and based thereon, proceedings against the petitioner arising out of the search and seizure activities carried out on 04.03.2021 were closed.
The petition is dismissed with costs quantified at ₹ 25,000/- to be deposited with Delhi High Court Legal Services Committee.
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2021 (11) TMI 818 - MADRAS HIGH COURT
Permission to revise the Form TRAN- 1 resulting in deprivation of the Input Tax Credit - transitional arrangement for Input Tax Credit - Section 140 of the GST Act - HELD THAT:- There seems to be a consistent view that if there is substantial compliance, denial of benefit of Input Tax Credit which is a beneficial scheme and framed with the larger public interest of bringing down the cascading effect of multiple taxes ought not to be frustrated on the ground of technicalities.
The order of the learned Single Judge is affirmed in directing the petitioner/ respondent to enable the respondent herein to file a revised Form TRAN-1, by opening of the portal and that such exercise is to be completed within a period of 8 weeks from the date of issue this order.
Appeal disposed off.
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2021 (11) TMI 817 - GUJARAT HIGH COURT
Provisional attachment of the property - Section 83 of the Central Goods and Services Tax Act - It is the grievance of the petitioner that on 23.06.2020, respondent No.4 issued notice in the form of GST DRC-01A without considering the reply of the petitioner - HELD THAT:- The Court vide order dated 20.08.2020 quashed and set aside the Form GST DRC-01A dated 23.07.2020 and directed respondent No.4 to initiate fresh proceedings. However, the Court did not disturb the order of provisional attachment passed on 24.07.2020. It is further grievance of the petitioner that respondent No.4 had been directed to initiate fresh proceedings which should have issued in the form of GST DRC-01A instead he chose to issue notice in the form of GST DRC-01A. On 25.08.2020, the summons has been issued under Section 70 of the GST Act where certain documents have been called for.
It appears that there is challenge to the order of the assessment which has been passed without filing any appeal on the ground that the order is cryptic and challenge is made on the ground of non-reasoned order. The Court is not rightly concerned with the same as the separate petition had been preferred.
Continuation of the attachment beyond the period of one year - contravention of the provisions of Sub Section (2) of Section 83 of the CGST Act, or not - HELD THAT:- As the cause is no longer surviving and the provisional attachment made does not survive any longer by virtue of the order dated 23.09.2021, the petition is being disposed of with the word of caution to the respondents that the statutory provision needs to be complied with very strictly and stringently. There must not be any requirement for the parties to approach this Court for compliance of the provisions of law. If there are statutory remedies available, they may take recourse to, however, the State cannot insist on continuing with something which is impermissible under the law.
Petition disposed off.
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2021 (11) TMI 816 - APPELLATE AUTHORITY FOR ADVANCE RULING, KARNATAKA
Classification of the service - activities carried out by the Appellant in India would constitute a supply of “Other Support Services”, falling under Heading 9985 or as “Intermediary Service” classifiable under Heading 9961/9962? - Levy of GST - intermediary services or not - export of services or not - zero-rated supply or not - refund of unutilized ITC - HELD THAT:- The definition of ‘intermediary’ as given in Section 2(13) of the IGST Act excludes a person who supplies such goods or services or both on his own account. It is the contention of the Appellant that the services being provided to Airbus France are on their own account and they are not engaged in supplying services on behalf of the Principal. The Appellant has placed reliance on the Education Guide 2012 issued by the CBIC under the Service Tax regime and contended that none of the conditions required for qualifying to be ‘intermediary service’ as explained in the Education Guide are satisfied in their case.
There does not seem to be any difference between the meaning of the term “intermediary” under the GST regime and pre-GST regime. In the pre-GST regime, an intermediary referred to a person who facilitates the provision of a main service between two or more person but did not include a person who provided the main service on his account. Similarly, in the GST regime, an intermediary refers to a person who facilitates the supply of goods or services or both between two or more persons but excludes a person who supplies such goods or services or both on his own account. The phrase ‘such goods or services’ used in the definition of ‘intermediary’ implies that the person should not be supplying on his risk and reward entirely, the very goods or services whose supply he is arranging or facilitating. In the instant case, the Appellant is arranging for and facilitating the Principal in procuring a supply of goods from India. He is not undertaking any supply of goods.
The Appellant is not supplying such goods on his own account and hence, the Appellant does not fall within the ambit of the exclusion contained in the definition of ‘intermediary’. Therefore, the Appellant is clearly playing the role of intermediary for Airbus France, as envisaged under Section 2(13) of the IGST Act, 2017 and we uphold the findings of the lower Authority in this regard.
As regards the classification of the services provided by the intermediary, it is found that the services of the Appellant, who is acting as an intermediary, would aptly be classified under the Heading 998599 as ‘Other support services’. The Explanatory Notes to the Scheme of Classification of Services which is a guiding tool for classification of services indicates the scope and coverage of the Heading 998599 as specifically covering business services of intermediaries and brokers under this heading - there are no merit in the Appellant’s contention of classifying their activity under Heading 998399. It is trite law that in classification matters, a specific heading is preferred to a general heading. In this case, the services of intermediaries is specifically covered under Heading 998599 and hence the intermediary service rendered by the Appellant is correctly classifiable under the said Heading.
In this case, the activity of the Appellant who is the supplier of intermediary service i.e collection of information of parties in India, analysis of potential suppliers and skill development of existing suppliers, are all very much done in India, which is the location of the supplier of intermediary service. Therefore, by virtue of Section 13 (8) (b) of the IGST Act, it automatically flows that the place of supply of the intermediary service provided by the Appellant to Airbus France, is in India. When the place of supply is in India, it does not satisfy one of the conditions for export of service, that the place of supply should be outside India - the intermediary services provided by the Appellant to Airbus France, do not qualify as export of service.
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2021 (11) TMI 754 - CHHATTISHGARH HIGH COURT
Validity of proceedings under Sections 78 and 79 of CGST Act, 2017 - no recovery order as appearing in Annexure P-9 was ever served upon the petitioner - HELD THAT:- Perusal of Notice (Annexure P-10) would show that in two of the notices i.e. Recovery No.34 of 2021 and 35 of 2021, order date is mentioned as 18.8.2021. Under Section 78 of the Act of 2017, the period of three months is provided for making payment of the tax assessed/ascertained by the Proper Officer but the letter/notice Annexure P-10 to third party under Section 79 (1) (c) of the Act of 2017 was issued on 1.10.2021 which is less than three months period from the date of the recovery order No.34 of 2021 and 35 of 2021. It is not disputed by learned counsel for the respondents that no specific reasons have been assigned for issuing notice under Section 79 (1) (c) of the Act of 2017 for initiating proceedings under Section 78 of the Act before lapse of three months period.
Considering the entirety of the facts and circumstances of the case, submission made by learned senior counsel for the petitioner that no order was served upon the petitioner as required under Section 78 of the act of 2017, as an interim measure, it is directed that effect and operation of order /notice dated 01.10.2021(Annexure P-10) shall remain stayed till the next date of hearing subject to petitioner depositing 50% of the total payable tax amount within a period of three weeks from today.
Application disposed off.
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2021 (11) TMI 753 - COMMISSIONER (APPEALS) CENTRAL GOODS AND SERVICE TAX, JAIPUR
Cancellation of registration of petitioner - taxpayer neither attended personal hearing nor responded to the query raised by this office - Section 107 (1) of CGST Act, 2017 - appeal has been filed within the prescribed time- limit or not - whether or not the appeal filed against the order of cancellation to be decided? - HELD THAT:- In the instant case the appeal has been filed by the appellant with the delay of 17 months 10 days from the normal period prescribed under Section 107 (1) of CGST Act, 2017. Delay in filing the appeal is condonable only for a further period of one month provided only in case of sufficient cause is shown by the appellant. There is no reason given by the appellant for acceptance of appeal beyond the normal period prescribed under Section 107 (1) of CGST Act, 2017. Thus, there are no option but to reject the appeal as time barred without going into the merits of case.
The appeal is rejected as time barred - appeal disposed off.
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2021 (11) TMI 752 - COMMISSIONER (APPEALS) CENTRAL GOODS AND SERVICE TAX, JAIPUR
Revocation of cancellation of registration - rejection due to not deposit interest liability against late discharged cash payment and also appellant not replied to the show cause notice - HELD THAT:- On account of inadvertent mistake, particulars of disputed order were wrongly entered of Registration passed by the learned Superintendent, Circle-3, Jaipur Ward-I. This was a genuine clerical mistake which has caused ab-initio incorrectness in appeal memo. That the appellant has deposited of interest and be considered as the requirement has been complied.
The appellant has deposited ₹ 11,062/- towards interest liability on 15.06.2021 (vide DRC-03 ARN No.AD0806210018946 Dated 15.06.2021 CGST ₹ 5,531/- and SGST ₹ 5,531/- for the period April-2020 to December-2020). Further, the appellant submitted copy of DRC-03 dated 15.06.2021 and also filed GSTR-3 B return for the period July-2020 August-2020 September 2020, October-2020, November-2020 and December-2020 respectively.
The appellant has filed returns upto date of cancellation of registration hence, the appellant has substantially complied with the said provisions of the CGST Act/Rules, 2017 in the instant case. Therefore, the registration of appellant may be considered for revocation by the proper officer.
The proper officer is ordered to consider the revocation application of the appellant after due verification of payment particulars of tax, late fee, interest and status of returns - appeal disposed off.
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2021 (11) TMI 722 - ALLAHABAD HIGH COURT
Prosecution, under Section 132(1)(c) of the Central Act - parallel proceedings under Section 74 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- It appears, arising from investigation carried out on the basis of certain information received from the petitioner's bank, two proceedings have arisen - one under Section 74 of the Central Act and another seeking prosecution, under Section 132(1)(c) of the Central Act. In the first place, the proceedings under Section 74 of the Central Act have been initiated against the petitioner vide show cause notice dated 04.06.2021 requiring it to show cause - criminal prosecution has been initiated before the court of competent jurisdiction namely the Chief Judicial Magistrate, Meerut.
There is no difficulty in recognizing the principle that the single transaction may give rise to both criminal and civil consequences. In the instant case, the same appears to have been caused. There is no principle in law as may warrant any interference in the present petition to either grant injunction against the pending proceedings under Section 74 of the Central Act or to quash the same, merely because the criminal proceedings is pending against the petitioner arising from the same transaction under Section 132(1)(c) of the Central Act - Both proceedings may continue simultaneously such that the rule of evidence applicable to each may be applied independently.
Petition dismissed.
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2021 (11) TMI 721 - ALLAHABAD HIGH COURT
Validity of proceedings initiated under Section 74 of the UPGST Act - mandatory opportunity contemplated by the Rule has been denied to the writ petitioner - Rule 142 (1A) and Rule 142 (2A) of UPGST Rules - HELD THAT:- Though the order is appealable, there is a patent error has crept in the impugned order inasmuch as no adjudication notice appears to have been issued to the petitioner before passing the order dated 18.02.2021. That being an undisputed fact, no useful purpose would be served in relegating the petitioner to avail statutory alternative remedy, at this stage.
The order dated 18.02.2021 is set aside. It is provided that that the petitioner may treat the order dated 18.02.2021 as the final notice issued to it under Section 74(1) of the Act and submit its reply within four weeks from today - Petition disposed off.
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2021 (11) TMI 720 - ALLAHABAD HIGH COURT
Maintainability of appeal - non-constitution of the G.S.T. Tribunal - appeal is prescribed under the U.P.G.S.T. Act 2017 before the G.S.T. Tribunal under section 112 of the said Act, but the petition was entertained - inter-state transportation of goods - HELD THAT:- Considering the fact that it was a inter-State transportation of goods, the U.P.G.S.T. Act 2017 did not apply and it is the I.G.S.T. Act 2017 and by virtue of section 20(15) of the said I.G.S.T. Act 2017 it was the C.G.S.T. Act 2017 which would apply in respect of matters covered by the I.G.S.T. Act 2017 on the subject of inspection, search, seizure and arrest. It being an inter-State transfer of goods there was no requirement of carrying the U.P. State e-way bill. For all these reasons the insistence by the State authorities that the petitioner's vehicle was not carrying the U.P. E-way bill is without any factual and legal basis.
The goods were being transported alongwith the taxinvoice etc., therefore, it was not a fraudulent transaction and there is nothing on record to show otherwise. Moreover, as already stated vide Annexure-2 I.G.S.T. at the rate of 18% had already been paid.
In the instant case goods being transported were interceipted on 19.2.2018, when there was no system of e-way bill in place under C.G.S.T. Act 2017 and U.P.G.S.T. was not applicable - In the judgment in M/S. SHAURYA ENTERPRISES VERSUS STATE OF U.P. AND 02 OTHERS [2018 (10) TMI 1237 - ALLAHABAD HIGH COURT] the Division Bench has categorically held that admittedly till 31.3.2018 it was not mandatory to download e-way bill from the official portal. The court further observed that it found substance in the submission of the learned counsel for the petitioner that only with effect from 1.4.2018 the requirement of downloading of e-way bill was compulsory.
Petition allowed.
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2021 (11) TMI 719 - RAJASTHAN HIGH COURT
Transfer of credit by permitting the petitioner to resubmit form GST TRAN-2 electronically or manually - stock valuation - Section 140 (3) of the CGST Act read with Rules framed - HELD THAT:- In the present petition we are impressed by the petitioner’s argument of no fault on the part of the petitioner in properly uploading the petitioner’s input tax credit for the month of July, 2017.
The Department does not dispute that the petitioner had made monthly declaration in Tran 2 form for all three months of July, August and September, 2017. This was done on a single date i.e. 14.06.2018. 2. For the months of August and September, 2017, the system showed the input tax credit as declared by the petitioner in the respective Tran-2 forms. 3. On the same day on 14.06.2018 itself the petitioner raised an objection to the Department regarding non-reflection of input tax credit for the month of July, 2017.
The petitioner cannot be deprived of its rightful tax credit if otherwise available in law. The respondents shall ensure that such declaration of the petitioner is accepted - Petition disposed off.
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2021 (11) TMI 718 - ALLAHABAD HIGH COURT
Seeking grant of Anticipatory Bail - registration certificate was not surrendered and no returns were being filed - sole proprietor of said firm expired - HELD THAT:- In the instant matter, perusal of record shows that Smt. Sushma Devi, who is mother of applicant, was sole proprietor of alleged M/s Vikas & Company and she expired on 28.04.2021. As per prosecution version, applicant-accused, being her eldest son, was looking after and co-operating of manufacturing and supplies of activities in the name of M/s Vikas & Company and as per documents, applicant and his brothers are actual beneficiaries and that tabulation conducted so far has reveled evasion of GST of ₹ 1,01,76,022/- and Central Excise duty of ₹ 31,90,909/-.
It is apparent that so far evasion of GST of ₹ 1,01,76,022/- and Central Excise duty of ₹ 31,90,909/- has been revealed, however, it has been stated that investigation is still going on and that on the basis of assumption, total GST evasion is more than ₹ 5 crores. It is not disputed that an amount of ₹ 1,23,61,000/- was seized from premises of said firm, which was taken into possession by the DGGI officials. This legal proposition could also not be disputed that as per provisions of Section 132(1)(iii) of Central Goods and Services Tax Act 2017, the evasion of tax of ₹ 1,01,76,022/- is a bailable offence and that in this case, amount of ₹ 1,23,61,000/- has already been seized from the premises of applicant.
Keeping in view entire facts of the matter brought on record, quantum of evasion of tax involved in the matter, period of custody of applicant and all attending facts and circumstances of the case, the Court is of the view that a case for bail is made out.
The bail application is hereby allowed.
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2021 (11) TMI 717 - ORISSA HIGH COURT
Seeking grant of Bail - availment of irregular input tax credit - there was neither any purchase nor sale of goods and that the transactions were made only on paper with a view to illegally avail ITC - offence punishable under Section 132(1)(i) of Odisha Goods and Services Tax Act, 2017 - HELD THAT:- Investigation ought to be completed within 60 days as per Section 167 Cr.P.C. Of course, Section 173(8) Cr.P.C. permits the investigating agency to keep the investigation open. But the same, if not concluded for an indefinite period, cannot obviously be cited as a ground to detain the accused in custody. As is seen, the initial prosecution report was filed way back on 09.10.2020 and till date further investigation is said to be in progress. Thus, more than a year has elapsed from the date of submission of initial P.R.. This cannot be a ground to detain the accused in custody indefinitely.
Without expressing any opinion on this point, this Court is of the considered view that since the transactions in question were basically one and the same involving the present petitioner and the co-accused Atul Bansal, there is hardly any justification to treat the petitioner differently than him.
Coming to the apprehension of the prosecution that the present petitioner may tamper with the evidence, this Court is unable to accept the same for the reason that a bare perusal of the prosecution report would suggest that the same was submitted after thorough investigation during which several documents and records were verified and statements collected from different persons. The report of further investigation also suggests that the same has been/is being conducted in different States whereby, several incriminating materials have supposedly been discovered - the apprehension expressed by the prosecution does not appear to be reasonable for being considered as a ground to refuse bail to the petitioner.
This Court finds that the petitioner has been successful in making out a good case for his release on bail. On the other hand, the prosecution has failed to satisfy the court as to how it would be prejudiced by grant of bail to the petitioner - It is directed that the petitioner shall be released on bail by the court in seisin over the matter on such terms and conditions as may be imposed by it.
The application for bail is allowed.
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