|
Advanced Search Options
GST - Case Laws
Showing 1 to 20 of 112 Records
-
2023 (5) TMI 1438
Time limitation - challenge to SCN on the ground that the impugned show-cause notice is barred by limitation since the same has been issued after the expiry of five years - HELD THAT:- Considering the conduct of the petitioner that it has challenged the impugned show-cause notice before this court after two years and that it has already given a detailed reply against the impugned show-cause notice which has yet not been disposed of and it is pending and that in delaying disposal of the same there is a contribution of the petitioner also as appears from record that even after passing of two years it has prayed for time to make arrangement for producing document.
No relief granted in this writ petition except by directing the respondent authority concerned to consider and dispose of the objection of the petitioner dated 21st July, 2021 against the impugned show-cause notice in accordance with law and by passing a reasoned and speaking order dealing with all the contentions raised in such objection and after giving an opportunity of hearing to the petitioner, within four weeks from the date of communication of this order.
Petition disposed off.
-
2023 (5) TMI 1437
Condonation of delay in filing beyond the prescribed statutory period under the Bihar Goods and Services Tax Act, 2017 - Validity and enforceability of the assessment orders issued under the BGST Act in the absence of a digital signature as mandated under the relevant rules - HELD THAT:- A mere omission to put the signature cannot lead to invalidation of the assessment proceeding. Moreover, by virtue of sub-section (2) of Section 160, wherein the order has been acted upon by the person to whom it is issued and where such services has not been called in question at or in the earlier proceedings commenced, continued or finalised pursuant to such notice, order or communication. Even at the last hearing date, it is specifically queried the learned counsel for the petitioner as to whether any such claim was made before the Assessing Officer, the Appellate Authority or at least before this Court. Before the Assessing Authority, the petitioner failed to appear in the 30 days’ time provided after the show cause notice. Before the Appellate Authority, it is admitted that there was no such contention taken. Even before this Court, the memorandum of writ petition does not show such contention having been raised.
On the last posting date, on 27.04.2023, a query was raised and the petitioner then, has filed a supplementary affidavit dated 28.04.2023 raising the contention of absence of digital signature. Going by the provision under sub-section (2) of Section 160, such a contention should have been taken before the Assessing Officer in so far as the absence of signature on the show cause notice or with respect to the assessment order, before the Appellate Authority.
Conclusion - i) Neither the Appellate Authority nor this Court has the power to condone the delay beyond the period specified in the statute and the period as extended by the Hon'ble Supreme Court. ii) A mere omission to put the signature cannot lead to invalidation of the assessment proceeding.
Petition dismissed.
-
2023 (5) TMI 1420
Rejection of appeal filed by the petitioner challenging the Assessment Order on the main ground that the appeal was filed beyond the condonable period - time limitation - HELD THAT:- The Assessment Order shows that it was passed by the 1st respondent on 30.06.2022. Then a perusal of the copy of the discharge summary issued by M/s Ramesh Cardiac and Multispeciality Hospital, filed along with material papers shows that the petitioner was admitted in the said hospital on 24th August, 2022 and after undergoing coronary artery bypass grafting surgery, he was discharged on 12th September, 2022.
The petitioner would submit that the petitioner received the copy of the Assessment Order on 01.07.2022. Having regard to these facts particularly that the petitioner underwent a major surgery and though he was discharged on 12th September, 2022, it would take considerable period for him to stabilize and pursue the regular business activities, it is noticed that the delay is not wanton but the circumstances beyond the control of the petitioner. Therefore the petitioner shall be given an opportunity to file the appeal and contest the original Assessment Order.
Conclusion - The delay of 60 days in filing the appeal is condoned exercising the plenary powers under Article 226 of the Constitution of India and the matter is remitted back to the 2nd respondent with a direction to register the appeal and after hearing both parties pass appropriate order expeditiously.
Petition allowed by way of remand.
-
2023 (5) TMI 1386
Inclusion of entire amounts received by it include wages paid, ESI and EPF contributions in the assessable value - HELD THAT:- This Court notices that the High Court has relegated the matter to the Assessing Officer who is required to look into the matter afresh. Since the matter is at large, there is no ground for interference.
SLP disposed off.
-
2023 (5) TMI 1348
Maintainability of petition - availability of alternative remedy - Seeking quashing of the seizure order - HELD THAT:- The petitioner cites difficulty. He states the petitioner is a petty unregistered dealer and that user ID and password has not been issued to him. Thus, he has been disabled from filing appeal - the State submits, if such user ID and password have not been made available to the petitioner, the same would be communicated to the petitioner at his address disclosed in this petition within a week.
Subject to above, if the petitioner files appropriate appeal against the order dated 01.06.2022 within four weeks from today, the same may be entertained on merits - Petition disposed off.
-
2023 (5) TMI 1308
Grant of Interim order - HELD THAT:- There is no scope of passing any interim order in the matter and the issues involved require affidavits from the respondents for final adjudication.
Let the respondents file affidavit in opposition within four weeks; reply thereto, if any, to be filed by the petitioner within two weeks thereafter - List the matter for final hearing in the monthly list of August, 2023.
-
2023 (5) TMI 1303
Submission of revised Tran-1/Tran-2 offline on 30.11.2022 on the last date - Argument is that having received the returns on the last date in offline form the department is not justified in refusing to entertain them on the incorrect pretext that such returns were filed on 01.12.2022 - HELD THAT:- Procedures have been provided to subserve the larger interest of the policy and the substantive rights of the persons, who are to be regulated by such procedures. The State having provided for a time frame to avail the facility cannot be permitted to deny the benefit of scheme only because the application was not made online, when it is not disputed that the online system itself was not functional on that day. The dealer has accordingly exercised its right in terms of the policy and has submitted offline application within the time permitted by the State under the policy.
The authorities of State must make necessary amendments in the procedures so as to deal with exigency of the present kind and the rights exercised by the dealer to avail the ICT benefit cannot be denied for the reasons set forth above.
Writ petition, accordingly, succeeds and is allowed.
-
2023 (5) TMI 1247
Principles of natural justice - Notice in the proceedings was issued to the petitioner on 21.10.2022 seeking his reply within 30 days - denial of opportunity of oral hearing before the Assessing Authority - HELD THAT:- Reliance placed in the decision of coordinate bench in Bharat Mint & Allied Chemicals [2022 (3) TMI 492 - ALLAHABAD HIGH COURT]. Once it has been laid down by way of a principle of law that a person/assessee is not required to request for "opportunity of personal hearing" and it remained mandatory upon the Assessing Authority to afford such opportunity before passing an adverse order, the fact that the petitioner may have signified 'No' in the column meant to mark the assessee's choice to avail personal hearing, would bear no legal consequence.
The impugned order itself has been passed on 25.11.2022, while reply to the show-cause-notice had been entertained on 14.11.2022. The stand of the assessee may remain unclear unless minimal opportunity of hearing is first granted. Only thereafter, the explanation furnished may be rejected and demand created - Not only such opportunity would ensure observance of rules of natural of justice but it would allow the authority to pass appropriate and reasoned order as may serve the interest of justice and allow a better appreciation to arise at the next/appeal stage, if required.
The matter is remitted to the respondent no.2/Assistant Commissioner, State Tax, Sector-6, Aligarh to issue a fresh notice to the petitioner within a period of two weeks from today - Petition allowed by way of remand.
-
2023 (5) TMI 1234
Seeking for interim order - HELD THAT:- There is no scope of passing any interim order in the matter and the issues involved require affidavits from the respondents for final adjudication.
List the matter for final hearing in the monthly list of August, 2023.
-
2023 (5) TMI 1232
Refund of Input Tax Credit (ITC) - goods supplied to SEZ Units (zero-rated supply) effected during the period of August 2017 to March 2018 - rejection on the ground that it was time-barred - HELD THAT:- It is stated that in the present case, the zero-rated supplies are stated to have been made between August 2017 to March 2018. According to the petitioner, the refund in respect of the supplies made during the period of February 2018 to March 2018, is within the period of limitation; if the period after 01.03.2020 to 28.02.2022, is excluded - It is apparent that neither the Adjudicating Authority nor the Appellate Authority has considered the petitioner’s claim that the delay is required to be condoned.
It is considered apposite to set aside the orders dated 26.05.2021 and 25.02.2022 impugned in this petition, and remand the matter to the Adjudicating Authority for considering afresh - petition allowed by way of remand.
-
2023 (5) TMI 1231
Maintainability of petition - availability of alternative remedy of appeal - Cancellation of GST registration of petitioner - HELD THAT:- The 2nd respondent had specifically directed the petitioner to show cause as to why the GST registration of the petitioner shall not be cancelled because the petitioner does not have a building number in the registered place of the business and a valid lease agreement. In response to Ext.P13 notice, the petitioner submitted Ext.P14 reply - On going through Ext.P14 reply, the petitioner had only submitted the building tax receipt as evidenced by reference No.4 in Ext.P14. But, the petitioner did not produce the valid lease agreement. Consequently, the 2nd respondent has passed Ext.P15 order, cancelling the registration of the petitioner.
The learned Government Pleader submitted that if the petitioner is aggrieved by Ext.P15, he has a remedy under Section 13 of the GST Act, to seek for rectification of Ext.P15 order or file an appeal under Section 107 of the GST Act - In the light of the alternative statutory remedy available to the petitioner, the writ petition not entertained - petition dismissed.
-
2023 (5) TMI 1230
Attachment of Bank Accounts of petitioner - evasion of GST while providing an online payment gateway (Aggregator Services) under the trade name Onion-Pay - respondents allege that that ZIPL was supporting illegal gambling products such as ‘Teen Patti’, ‘Roulette’, ‘Ludo’, ‘Matrix 5’ and all merchants associated with the payment gateway were suspected to be fake and shell companies - creation of web of fake gaming merchant entities, which were operated and managed by ZIPL.
Whether the impugned orders are in accordance with Section 83 of the CGST Act?
HELD THAT:- There is no issue regarding the CGST liability of ZIPL, it is apparent that ZIPL’s bank accounts could not be attached for any amount due and payable to the merchants using the ZIPL’s platform. The provisions of Section 83 of the CGST Act can be invoked for attaching the assets and bank accounts of a taxable person or a person specified under Section 122(1A) of the CGST Act, if in the opinion of the Commissioner it is necessary to do so for the purpose of protecting the interest of government revenue. Thus, the bank accounts of ZIPL cannot be attached for securing the revenue of another taxable person. It is implicit that the bank accounts and assets of only those taxable person or persons specified in Section 122(1A) of the CGST Act can be attached who may be liable for payment of any government revenue and the Commissioner is of the opinion that it is necessary to attach their assets in the interest of government revenue. A debt owed by any person to the taxable person, whose assets or bank accounts are liable to be attached under Section 83 of the CGST Act, can be attached being an asset of such a person. But the bank account of the person owing such debt cannot be subject to a provisional attachment order under Section 83 of the CGST Act.
This Court considers it apposite to dispose of the present petition by setting aside the impugned orders attaching ZIPL’s bank accounts albeit with the further direction that ZIPL shall make payments due to various merchants directly in their respective bank accounts as disclosed by ZIPL to the respondents and as recorded in the impugned order dated 01.02.2023. Insofar as the remaining amount of ₹69.92 crores is concerned, ZIPL shall transfer the same to its current account.
Petition disposed off.
-
2023 (5) TMI 1229
Refund claim - delayed application of refund - Department does not dispute the applicability of circular dated 5th July, 2022 as well as the adjudication made by this Court in [2022 (3) TMI 578 - ALLAHABAD HIGH COUR] in the facts of the present case.
HELD THAT:- In that view of the matter and for the reasons recorded by this Court in Writ Tax No. 173 of 2022, this writ petition also succeeds and is disposed of on same terms. The order impugned dated 27.10.2021 stands quashed. Respondent no. 4 is directed to revisit the issue in light of the above observations, by passing a fresh order, within a period of six weeks from the date of presentation of a certified copy of this order.
-
2023 (5) TMI 1185
Seeking grant of bail - irregular availment of input Tax Credit / ITC - suppression of actual sales in their monthly GSTR-3B returns - case of applicant is that the applicant is neither owner nor proprietor of firm, whereas his mother Smt. Anusuiya Mishra is the proprietor of the firm - HELD THAT:- It is an admitted fact that the applicant is neither proprietor nor owner of the firm, whereas his mother Smt. Anusuiya Mishra is the proprietor of the firm. No charge-sheet or complaint has been filed by the Department against Smt. Anusuiya Mishra. The investigation of the Department was completed and there is no evidence or material that the applicant had not co-operated with the investigation or tampering the evidence or witnesses. The investigation was completed and charge-sheet/complaint has already been filed and there is no chance of tampering of evidence or influence of witnesses. The maximum punishment under Section 132(1)(a) of the Act, 2017 is five years which is triable by Magistrate. There is no criminal history of the applicant. The applicant is having fixed place of residence and there is no chance of his absconding.
Considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, at this stage, without commenting on the merits of the case, it is found to be a fit case for bail - The bail application is allowed.
-
2023 (5) TMI 1184
Interest on the delayed disbursal of amount of Budgetary Support already sanctioned - Budgetary Support Scheme - HELD THAT:- Circular dated 10.1.2019 stated that the claims under the Scheme are required to be disposed of within two weeks.
True it is, that, in terms of Circular dated 10.01.2019, the claims under the Scheme are required to be disposed of within two weeks. It is not the case of the petitioner that the claims for release of payment under the Scheme were not considered or disposed of by the respondents within the stipulated time frame. The amount payable to the petitioner under the Scheme was duly sanctioned in favour of the petitioner. However, the said amount could not be disbursed due to non availability of requisite funds from DIPP. It is also not in dispute that that the benefit envisaged under the Scheme is in the nature of concession/incentive granted by the Government in favour of eligible industries, so as to provide them necessary cushion to face the financial hardship that may have visited such units/industries due to withdrawal of area based exemption notifications issued under the Central Excise Act. Such being the nature of concession given, no unit could lay a claim to the payment of amount under the Scheme as a matter of right - True it is, that the claims submitted under the Scheme are required to be disposed of within a period of two weeks, but, there is no complaint by the petitioner that his claim was not considered or disposed of by the respondents within the stipulated period. Sanction for release of amount was granted in time, but, disbursement of the amount took sometime. It is also not the case of the petitioner that there was deliberate delay on the part of the respondents to release the benefit.
Admittedly, the funds at the disposal of Commissionerate were far less than the claims received and, therefore, the amount though sanctioned in favour of the petitioner could not be released till the requisite funds were made available to the Commissionerate by the DIPP. In these circumstances, it is difficult for us to say that the amount payable to the petitioner under the Scheme was illegally, arbitrarily or without any reason withheld by the respondents.
The petitioner are no entitled to interest on the amount disabused to it under the Scheme for the following reasons:
(i) That having regard to the nature of Scheme, the benefit under the Scheme is not claimable by the eligible industrial units as a matter of right. The benefit envisaged is in the nature of concession/incentive extended by the Government of India to enable the industrial units to tide over the financial hardship to which they may have been exposed with the withdrawal of area-based exemptions under the Central Excise Act;
(ii) That the respondents had a valid reason not to disburse the amount sanctioned immediately. The Commissionerate was facing acute shortage of funds and the funds placed at its disposal by DIPP were not sufficient enough to meet even the claim of the petitioner. The amount was disbursed immediately when the funds became available; and,
(iii) That there is no provision in the Scheme which provides for payment of interest in case of any delay in actual release of the benefit envisaged under the Scheme. Unless, it is pleaded and demonstrated that the amount payable under the Scheme was unauthorisedly and, without any reason, withheld by the respondents, it would be difficult for this Court to penalize the respondents by directing them to pay interest.
Petition dismissed.
-
2023 (5) TMI 1183
Seeking grant of regular bail - evasion of GST - Forming of a network of fake firms and defrauding the state exchequer. - availment of fraudulent Input Tax Credit - HELD THAT:- Since the grant or refusal of bail lies in the discretion of the Court the discretion is to be exercised with regard to the facts and circumstances of each case. However, bail is not to be denied to satisfy the collective sentiments of a community or as a punitive measure.
Therefore, broadly speaking (subject to any statutory restrictions contained in Special Acts), in economic offences involving the IPC or Special Acts or cases triable by Magistrates once the investigation is complete, final report/complaint filed and the triple test is satisfied then denial of bail must be the exception rather than the rule. However, this would not prevent the Court from granting bail even prior to the completion of investigation if the facts so warrant - Given the fact that the petitioner was arrested on 13.03.2021 and is in custody ever since in a case where the maximum sentence that could be awarded was 05 years, the further incarceration of the petitioner is not required, more so when his co-accused have been granted the concession of regular bail vide order dated 31.08.2022.
The further incarceration of the petitioner would be wholly unnecessary. Thus without commenting on the merits of the case, the aforementioned petitions are allowed and the petitioner-Amrinder Singh son of Gurnam Singh is ordered to be released on bail subject to the satisfaction of the Trial Court, concerned which is at liberty to impose any stringent conditions that it deems appropriate - Petition disposed off.
-
2023 (5) TMI 1182
Validity of show cause notice - Insufficient details in the SCN - no date, time and venue for personal hearing was shown in the notice - Section 74 of MPGST Act - HELD THAT:- The show cause notice dated 22.07.2022 (Annexure P/3) issued under Section 74 of the Act, itself shows that before passing final order dated 24.08.2022 (Annexure P/4), the intention of the respondents was to give personal hearing to the petitioner as required under the law, but in the table given below, captioned as “Details of personal hearing etc.”, no Date, Time and Venue of personal hearing has been shown and in front of columns 3,4&5 of Date, Time and Venue, NA has been mentioned, which is sufficient to infer that no personal hearing was given to the petitioner before passing the impugned order dated 24.08.2022.
Availability of alternative remedy of appeal - HELD THAT:- It is well settled that when due opportunity of hearing, as required under the law, has not been afforded and principle of natural justice has not been followed, then the question of availability of alternative remedy does not come in the way for exercising jurisdiction under Article 226 of the Constitution of India.
The matter is remitted back to the Deputy Commissioner, Audit Wing, Jabalpur for passing order afresh, after giving personal hearing to the petitioner - Petition allowed by way of remand.
-
2023 (5) TMI 1181
Classification of services - services provided by the Heli-Operators by way of transport of passengers by air in case of Helicopter Shuttle Services - rate of GST - Applicability of N/N. 11/2017 CGST (Rate) dated 28.06.2017.
HELD THAT:- The “applicant” i.e. M/s Uttarakhand Civil Aviation Development Authority, Dehradun in their application dated 11.03.2023 has declared that M/s Uttarakhand Civil Aviation Development Authority, is a society formed by the State Government of Uttarakhand, for objectives which include developing tourism by way facilitating and controlling air transport in the state and to provide services in respect of air security and conducting rescue operations, which means to say that the applicant floats/ issue tenders to select “helicopter shuttle service operators” on select routes in the state of Uttarakhand on license basis, which entails providing of services by way of transport of passengers by air.
The applicant in the instant case does not provide any service of “transport of passengers by air” and also they do not receive the services of “transport of passengers by air' by any of the “helicopter shuttle service operator”, as they do not fall under the category of 'passengers”. Hence the applicant do not fulfill the conditions as mandated in Section 95 of the CGST Act, 2017, in as much as the applicant i.e. M/s Uttarakhand Civil Aviation Development Authority, Dehradun has approached the Authority for Advance Ruling, Goods & Service Tax, Uttarakhand, on matters or on questions which is not in relation to the supply of goods or services or both, being undertaken or proposed to be undertaken by them.
The applicant in the instant case do not fulfill the criterion as mandated in sub-section (a) of the Section 95 of the CGST Act, 2017, and hence in terms of section 98(2) of the Central Goods And Services Tax Act, 2017, the present application is not admitted and rejected without going into the merits of the case.
-
2023 (5) TMI 1145
Maintainability of appeal - appeal not admitted, as appellate tribunal has not yet been constituted - contravention to sub-sections (1) & (4) of Section 107 of the GST Act - demand of tax alongwith penalty - It is contended that the petitioner has already deposited 10% of the demanded tax amount before the first appellate authority and as there is no second appellate forum, this Court should entertain this writ petition - HELD THAT:- Since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd appellate tribunal, which has not yet been constituted, the amount of penalty and interest demanded by authority shall remain stayed during pendency of the writ petition subject to the Petitioner depositing the entire amount of tax demanded within a period of fifteen days from today.
Application disposed off.
-
2023 (5) TMI 1144
Release of goods and conveyance - fictitious transactions - supplier not found to be in existence - HELD THAT:- In the facts and circumstances of the case, by way of interim relief, it is directed that the goods of the petitioner as well as vehicle truck bearing registration MH-11-CH-7275, shall be released provided the petitioner complies with the conditions imposed - petitioner shall deposit with the competent authority of the respondents, total amount of penalty of Rs.1,17,500/-, the tax is not assessed by the authorities - towards fine in lieu of confiscation of goods, which is Rs. 23,50,000/-, the petitioner shall furnish Bank Guarantee for 80% of the total amount. Bond shall be given for remaining 20% of the amount.
Petition disposed off.
........
|
9911796707
