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GST - Case Laws
Showing 1 to 20 of 166 Records
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2023 (3) TMI 1568
In the High Court of Gauhati, under the judgment presided over by HONOURABLE MR. JUSTICE DEVASHIS BARUAH, the court addressed a matter involving the petitioner, represented by Mr. D. Mozumder and Mr. B. D. Deka, and the respondent, represented by Mr. G. Goswami, Standing Counsel for the Railways. An additional affidavit was submitted by respondent No. 4 on 01.03.2023, containing allegations in paragraphs 3 and 4. The court decided to grant the petitioner an opportunity to respond to these allegations by filing an affidavit-in-reply within ten days. The case is scheduled to be listed again on 28.03.2023.
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2023 (3) TMI 1565
Deduction of 18% from the RA bills submitted by the petitioner towards Goods and Services Tax (GST) - HELD THAT:- There is no dispute that the petitioner has submitted bids based on the SR rates notified on 25.11.2016 and these rates included tax as was applicable under the provisions of Indirect Tax Regime. Crucially, as pointed out by Sri. S.Mahesh, the petitioner has signed the subject agreement specifically agreeing to the second respondent deducting taxes at source as per applicable law. The intent of the parties in signing the contract including the terms as aforesaid, even before it could be opined that the term will include any upward variation in the tax rates, will have to be examined in the back drop of the evidence that will be brought on record to substantiate the intent as respectively claimed by them.
There cannot be any directions in the absence of such evidence. The parties have agreed to resolve the disputes through arbitration and therefore, this Court is of the considered view that all questions must be left open to be decided in the arbitral proceedings, if the petitioner proposes to have recourse to such remedy.
Conclusion - The petitioner is bound by the 2019 agreement, which allows for GST deductions, and that disputes regarding these deductions should be resolved through arbitration.
Petition disposed off.
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2023 (3) TMI 1563
Cancellation of registration of petitioner - failure to furnish returns for a continuous period of six months - HELD THAT:- The present writ petition is disposed of with liberty to petitioner to move an application for revocation of the cancellation order under Section 30 of CGST Act read with under Section 23 of the CGST Rules, within two weeks from today.
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2023 (3) TMI 1558
Non-compliance with the directions issued by a Division Bench of this Court - failure to provide the duly endorsed copies of the documents seized vide panchnama - HELD THAT:- The Petitioner(s) does not dispute that the directions issued by the Division Bench vide in M/S ATLANTIC INTERNATIONAL TRADING PVT. LTD., MS BLUE STAR INTERNATIONAL PVT LTD., MS SUNFLAME TRADING PVT LTD. AND ORS. VERSUS COMMISSIONER, CENTRAL EXCISE AND CENTRAL GST COMISSIONERATE DELHI SOUTH & ANR. [2022 (11) TMI 1540 - DELHI HIGH COURT], with respect to cloning of data from the digital devices which were seized during the searches dated 17.09.2020 and 24.11.2020 have been completed and handed over to the Petitioner(s) herein.
The Respondent has placed on record its stand with respect to the circumstances in which it has been unable to furnish the documents seized vide panchnama dated 17.09.2019. The Respondent has stated that the said file is untraceable and the Respondent has initiated steps for tracing the said file. In these circumstances this Court is of the opinion that there is no wilful disobedience by the Respondents of the directions issue vide order dated 22.11.2022.
Petition dismissed.
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2023 (3) TMI 1534
Seeking permission of this Court to carry out the assessment for the year 2018-2019 otherwise it would become time barred post 31 March 2023 - HELD THAT:- Considering the facts and circumstances, such permission is granted, however, with a condition that the effect of such carrying out assessment will not be enforced and it will be subject to the outcome of this writ petition. The concern expressed by the assessee also noted that due to short time period they may not be given an opportunity to put forth their case. This contention also will be considered as and when the petition is taken up for hearing.
The interim application is accordingly disposed of.
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2023 (3) TMI 1444
Maintainability of petition - Rejection of application of the petitioner for refund - appealable order or not - HELD THAT:- This Court is constrained to record that learned advocate appearing for the petitioner has made misrepresentation and incorrect statement by trying to make out a case that petitioner’s application for refund was rejected on the ground of limitation by not considering the period of limitation protected by the order of the Supreme Court during the Covid-19, which is totally incorrect and false statement, as appears from the aforesaid impugned order of rejection from which it is found that adjudicating authority has specifically recorded that the claim of the petitioner is not time barred and claim has been rejected on some other grounds.
Petition is dismissed on the ground of availability of alternative remedy by way of statutory appeal.
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2023 (3) TMI 1424
Seeking grant of Interim relief - HELD THAT:- There is no scope of passing any interim order in the matter and the issues involve require affidavit from the respondents for final adjudication.
List this matter for final hearing in the monthly list of June, 2023.
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2023 (3) TMI 1409
Distribution and/or utilisation and/or eligibility of Input Service Distributor (ISD) credit of Service Tax/excise duty - Section 140 of the CGST Act 2017 - it was held by High Court that Goods and Service Tax Network (GSTN) is directed to open common portal for filing concerned forms for availing Transitional Credit through TRAN-1 and TRAN-2 for two months i.e. w.e.f. 01.09.2022 to 31.10.2022.
HELD THAT:- This Court is of the opinion that the course adopted in the impugned order does not commend to us, more so having regard to the fact that the writ petition had been opposed by the Union which had even filed an affidavit - this Court would have been benefited from reasoned judgment on the merits rather than the High Court merely adopting and following the reasoning of an order which appears to have been made in exercise of the power under Article 142 of Constitution of India.
The matter is remitted for fresh consideration by the High Court which is requested to hear the parties and deliver its judgment on the merits after reflecting upon all contentions and the relevant provisions of law - the impugned order is set aside.
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2023 (3) TMI 1390
Maintainability of petition - availability of alternative remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act - non-constitution of the Tribunal - petitioner prevented from availing the benefit of stay of recovery of balance amount of tax in terms of Section 112 (8) and (9) of the B.G.S.T Act upon deposit of the amounts as contemplated under Sub-section (8) of Section 112.
HELD THAT:- The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the B.G.S.T Act, enters office.
Considering the facts and circumstances noted above, this Court in the case of ANGEL ENGICON PRIVATE LIMITED VERSUS STATE OF BIHAR, ASSISTANT COMMISSIONER OF STATE TAX [2023 (3) TMI 879 - PATNA HIGH COURT] held that The statutory relief of stay on deposit of the statutory amount, in the opinion of this Court, cannot be open ended. For balancing the equities, therefore, the Court is of the opinion that since order is being passed due to non-constitution of the Tribunal by the respondent-Authorities, the petitioner would be required to present/file his appeal under Section 112 of the B.G.S.T. Act, once the Tribunal is constituted and made functional and the President or the State President may enter office.
There is an additional fact in the instant case, as asserted by the petitioner, that in terms of the liberty granted under earlier order dated 16.11.2022, in these proceedings, he has already deposited 20 percent of the remaining amount of tax in dispute.
The petition is disposed off.
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2023 (3) TMI 1385
Grant of Conditional Bail - payment of substantial sum ordered as a pre-condition for grant of bail - seeking that bail prayer has to be considered on the basis of the merit of the petition - HELD THAT:- The bail order given to the petitioner stands confirmed.
Requirement of deposit of amount shall not be precondition for release on bail. However, other conditions are left undisturbed and shall be complied by the petitioner.
Application disposed off.
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2023 (3) TMI 1382
Termination of proceedings - earlier proceedings under Section 67 of the U.P. Goods and Services Tax Act, 2017 terminated upon the appeal of the petitioner being allowed.
HELD THAT:- Matter requires consideration.
Learned counsel for the respondents prays for and is granted six weeks time to file counter. Petitioner will have two weeks thereafter to file rejoinder - List thereafter.
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2023 (3) TMI 1377
Maintainability of the writ petition - Availability of statutory alternative remedy of preferring appeal under Section 107 of the Act - Submission is that since such statutory alternative remedy has not been availed, therefore, the writ petition is not liable to be entertained - HELD THAT:- There are substance in the preliminary objection taken to the maintainability of the writ petition by learned State Counsel.
Since, the statutory alternative remedy of appeal has not been availed, as such, the order passed by the competent forum at the first instance need not be challenged.
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2023 (3) TMI 1375
Levy of penalty - Detention of goods alongwith vehicle - expired E-way bill - HELD THAT:- The reason for the vehicle of the appellant along with the goods for being detained was that the e-way bill had expired at 11:59 hours on 22nd April, 2022. As per the statute, the owner of the goods / transporter had eight hours time to revalidate the e-way bill, which would have been at 8 a.m. on 23rd April, 2022. However, the said date was a Saturday and the vehicle was intercepted at 8.52 a.m., when it was travelling towards the destination and at a distance of about 20 kilometers from the destination. There is no other allegation made against the appellant.
There is no lack of bona fide on the part of the appellant to state that there was wilful misconduct committed by the appellant while transporting the goods. There is every possibility that even if an application was made for extension of the e-way bill within the time permitted, 23rd April, 2022 being a Saturday, the e-way bill, in all probabilities, would not have been revalidated within the eight hours period.
Considering the facts and circumstances of the case, the authority could not have imposed penalty on the appellant - the appeal is allowed.
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2023 (3) TMI 1371
Constitutional Validity of Sub Rule (10) of Rule 96 of the CGST Rules, 2017 - ultra vires Section 16 of the IGST Act, ultra vires Section 54 and 164 of the CGST Act, 2017, and ultra vires Articles 14 and 19(1)(g) of the Constitution of India - refund of Integrated Tax paid on goods exported - HELD THAT:- It was pointed out that the petition containing identical controversy to be entertained by Co-ordinate Bench of this court in MESSRS AMVIAN AUTOMOTIVE PVT. LTD. VERSUS UNION OF INDIA [2022 (11) TMI 1366 - GUJARAT HIGH COURT]. It was further pointed out from the said order that interim relief was also granted by directing that the respondent shall not make any coercive recovery.
Notice, returnable on 26.4.2023.
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2023 (3) TMI 1368
Cancellation of GST registration of petitioner - appeal preferred by the petitioner was dismissed as being beyond the prescribed period of limitation - HELD THAT:- Considering the fact that the order impugned cancelling the registration is prima facie without application of mind which is squarely covered by the judgment of this court in the case of M/s Chandra Sain [2022 (9) TMI 1047 - ALLAHABAD HIGH COURT] and the issue of non-fixation of time and date is squarely covered by the judgment rendered in the case of M/s Jaiprakash Thekedar [2023 (1) TMI 237 - ALLAHABAD HIGH COURT], the writ petition deserves to be allowed on both the counts.
The matter is remanded to the adjudicating authority for passing a fresh order, in accordance with law, after giving opportunity of hearing to the petitioner within a period of three months from the date of production of certified copy of this order - Petition allowed by way of remand.
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2023 (3) TMI 1360
Condonation of delay in filing petition - present petition under Article 226 of the Constitution of India has been filed after a delay of more than 2 years - detention of goods alongwith vehicle - vehicle number not mentioned on E-way bill - HELD THAT:- The appellate authority after considering the order passed by the adjudicating authority had noted that the appellant did not file any document/evidence to show that on e-bill vehicle number was mentioned. Once the papers were not in accordance with the provisions of Act, 2017 and rules made thereunder, the adjudicating authority has proceeded to assess the tax and imposed penalty. The appellate authority did not find any error on law or facts.
Sri H.N. Tiwari, learned counsel appearing for the petitioner submits that because of spread of COVID-19 the petitioner did not appear before the appellate authority. However, there is no explanation coming in the present petition regarding delay of more than two years. The only ground, which has been taken in the present petition, regarding delay and laches is the petitioner did not get copy of the impugned order - However, this ground falls on the ground by perusing the impugned order. After the impugned order was passed, a copy of order was sent to the Additional Commissioner- Grade 1, Assistant Commissioner and the petitioner. Moreover, it was the duty of the petitioner to find out what happened in the appeal which had been instituted by him.
This petition is liable to the dismissed on the ground of delay itself - Petition dismissed.
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2023 (3) TMI 1359
Maintainability of petition - availability of statutory remedy of appeal - non-constitution of Tribunal - recovery of transitional credit - deduction of tax under Section 41 of the BVAT Act and carried forward under the VAT return - transitional to GST regime - HELD THAT:- Due to non-constitution of the Tribunal, the petitioner is deprived of his statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act. Under the circumstances, the petitioner is also prevented from availing the benefit of stay of recovery of balance amount of tax in terms of Section 112 (8) and (9) of the B.G.S.T Act upon deposit of the amounts as contemplated under Sub-section (8) of Section 112 - The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the B.G.S.T Act, enters office.
This Court in the case of Angel Engicon Private Limited vs. the State of Bihar & Anr. [2023 (3) TMI 879 - PATNA HIGH COURT] has disposed of the writ petition with certain observations and directions, allowing certain liberty to the petitioner, holding that the Court is of the opinion that since order is being passed due to non-constitution of the Tribunal by the respondent-Authorities, the petitioner would be required to present/file his appeal under Section 112 of the B.G.S.T. Act, once the Tribunal is constituted and made functional and the President or the State President may enter office.
There is an additional fact in the instant case, as asserted by the petitioner, that in terms of the liberty granted under earlier order dated 09.12.2022, in these proceedings, he has already deposited 20 percent of the remaining amount of tax in dispute.
Subject to verification of the fact of deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, or deposit of the same, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section 107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act, for he cannot be deprived of the benefit, due to non- constitution of the Tribunal by the respondents themselves. The recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed.
The instant writ petition disposed off subject to conditions imposed.
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2023 (3) TMI 1358
Search and seizure - Valuation of goods - service of SCN (to accountant of the firm) - goods quantified only on the basis of the eye estimation - power of taking recourse to Section 73 or Section 74 of the Act, while proceeding to pass an order under Section 130 of the GST Act - Whether tax can be assessed/ determined in exercise of powers under Section 130 of the GST Act? - HELD THAT:- In the light of what has been decided by this Court in the case of M/s Metenere Limited [2020 (12) TMI 790 - ALLAHABAD HIGH COURT], it is clear that the entire exercise resorted to under Section 130 of the GST Act for assessment/ determination of the tax and the penalty is neither stipulated under the Act, nor can be done in the manner in which it has been done, more so, in view of the fact that the department itself had undertaken the exercise of quantifying the tax due, by taking recourse under Section 74 - As the entire tax has been determined and the penalty has been levied only on the basis of a survey by taking recourse under Section 130 of the GST Act and not taking a recourse to Section 74, the order impugned is clearly unsustainable.
Whether penalty can be levied only on the allegations that at the time of verification of goods, the goods in excess were found at the premises? - HELD THAT:- On a plain reading, the scope of Clause (ii) of sub-section (1) of Section 130 is that any assessee who is liable to pay tax and does not account for such goods, after the time of supply is occasioned, would be liable to penalty under Clause (ii). Analyzing Clause (iv) of sub-section (1) of Section 130, the contravention of any provision of the Act or the Rules should be in conjunction with an intent to evade payment tax and penalty can be levied by invoking Clause (iv) only when the department establishes that there were a contravention of the Act and Rules coupled with the ‘intent to make payment of tax’. There is no such allegation in the show cause notice or any of the orders, I have no hesitation in holding that even the Clause (iv) of sub-section (1) of Section 130 would not be attracted in the present case.
Whether the service of notice as claimed by the respondent satisfies the requirement contemplated under Section 169 of the GST Act? - HELD THAT:- In terms of Clause (a) of Section 169(1), a service would be completed only when it is tendered to the taxable person or on his Manager or authorized representative. - Serving on the Accountant of the firm is neither contemplated nor provided for under Section 169(1)(a) and thus, the service as claimed by the Counsel for the respondent on the Accountant cannot be held to be a valid service, thus, on that count also, the entire proceedings are liable to be quashed.
Whether the valuation of goods can be done on the basis of eye estimation alone and on the basis of production capacity and/ or the consumption of electricity etc? - HELD THAT:- In the present case, the valuation of the goods is required to be done in terms of the mandate of Section 15(1) read with Section 15(2) and read with Section 15(3). In the said Section 15 or the Rules framed thereunder, there is no prescriptions for valuation of the goods on the basis of eye estimation as has been done by the department and has been repelled by the appellate authority. The appellate authority has erred in repelling the valuation done on the basis of eye estimation, however, has proceeded to value the goods (although differently) at the appellate stage without resorting to the mandate and manner prescribed in Section 15 read with the Rules, thus, on that count also, the impugned order is not sustainable.
The impugned order dated 29.01.2019 is set aside and the writ petition is allowed.
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2023 (3) TMI 1357
Detention of goods alongwith vehicle - detention mainly on the ground that the goods were without E-Way bill - petitioner argues that the order imposing the penalty that too on valuation without jurisdiction is wholly bad in law.
HELD THAT:- Section 7 of the Act provides for levy and collection of tax and Chapter IV provides for determination of value of supply. Section 15 of the Act provides for value of taxable supply, Section 15(4) makes it clear that if the value of the supply of goods or services or both cannot be determined under Section (1), the same shall be determined in such manner as may be prescribed - the value of the goods in transit is to be determined in accordance with the provisions of Section 15 declared in an invoice or a bill of supply or a delivery challan in respect of the consignment. Even Section 15 Sub-Section 1 of the Act prescribes that the value of the supply of goods or services shall be the transaction value which should include the amounts as clarified under Section 15(2) and the benefits as contained in Section 15(3). Recourse to Section 15 Sub-Section 4 can be taken only when the value of the supply of goods cannot be determined under Sub-Section 1.
In the present case, the value of the supply of goods is clear from the transaction value as indicated in the tax invoice which is on record and there being nothing on record to demonstrate that the said tax invoice was not acceptable to the respondents for any reason, as such, there are no hesitation in holding that in view of Explanation 2, Rule 138 read with Section 15(1), the transaction value is the value which is indicated in the invoice. Considering the fact that the petitioner has to be treated as the owner of the goods in view of the law laid down in the case of M/S MARGO BRUSH INDIA AND OTHERS VERSUS STATE OF U.P. AND ANOTHER [2023 (1) TMI 1237 - ALLAHABAD HIGH COURT], there are no hesitation in holding that the orders impugned insofar as it imposes the burden on the petitioner to get the goods released in terms of Section 129(1)(b) of the Act is bad in law.
The matter is liable to be remanded to the Assessing Authority to pass fresh orders treating the petitioner to be the owner of the goods in terms of the mandate of Section 129(1)(a) of the Act treating the valuation of the goods as specified in the invoice, however, as the petitioner is ready and willing to pay the liability in terms of Section 129(1)(a) of the Act, instead of remanding, it is deemed appropriate to direct the respondents to release the goods to the petitioners if the petitioners offer to pay two hundred percent of the tax payable on the goods valuing the same on the basis of the valuation as shown in the invoice - petition allowed by way of remand.
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2023 (3) TMI 1326
Levy of penalty for late filing of the GST returns - cancellation of its GSTIN registration - HELD THAT:- It is clear from the above that the order dated 14.12.2020, rejecting the petitioner’s application for revocation of cancellation of GSTIN registration is unsustainable. It provides no reason as to why the petitioner’s application was rejected - the only reason is that the petitioner had not responded to the Show Cause Notice dated 27.10.2020. It is hard to accept that there could be any meaningful response to the said Show Cause Notice. It sets out no reason at all for proposing to reject the petitioner’s application for revocation of cancellation.
It is also noticed that the petitioner’s principal contention was that it had already complied with the requirement of filing the returns on the date when the order cancelling its registration was passed and, therefore, the said order was unsustainable - from the date of the petitioner filing an application for revocation of its cancellation, that is, 16.10.2020, the petitioner cannot be held responsible for not filing its returns during the period when the registration stood cancelled.
Thus, for the purpose of calculating any penalty for the late filing of the returns, the period, 16.10.2020 to 22.04.2022, is liable to be excluded.
List on 14.04.2023.
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