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GST - Case Laws
Showing 21 to 40 of 123 Records
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2022 (6) TMI 1167 - AUTHORITY FOR ADVANCE RULING, RAJASTHAN
Exemption from GST - activity of providing the hostel facility on the rent to various students by applicant is exempt (where hostel fees charged per student per day is much less than Rs.1000/-) - composite supply or mixed supply - Applicability of entry of Notification No.12/2017-Central Tax (Rate) (as amended time to time) dated 28.06.2017 - lack of requisite documents - HELD THAT:- In order to examine the applicability of exemption/ taxability, there should be documentary evidences which support the contention of the applicant - In the instant case, documentary evidence like rent/lease agreement of the premises and License from the Local authority in respect of Hostel are keenly required. Further, Brochure mentioning thereunder the facilities / services which to be provided to the occupants of the said Hostel and Break up of fees to be charged from the occupants is also required to decide whether it is accommodation & lodging service or otherwise.
It is found that the services to be supplied in the present case are more than two but in the absence of Brochure of Hostel facilities, Break-up of fees in respect of facilities/services to be provided, License from the Local Authority, Details of rooms occupancy and Rent/ lease Agreement etc; we are not in the position to decide whether the accommodation services alongwith allied services like service of Light, water, food etc. are only to be provided by Hostel or other services will be there. In the absence of above required documents/information, we are not in position to decide whether the said supply is mixed or composite supply.
Thus, in absence of supporting documentary evidence in support of services to be provided by the applicant, how it can classify in HSN provided in the CGST Act, 2017 and thus there is no question to discuss the exemption under Sr. No. 14 of the of the Notification No. 12/2017-CT(Rate) dated 28.06.2017 - no ruling advanced for want of requisite documents.
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2022 (6) TMI 1166 - AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND
Concessional rate of tax - Manufacture of Fortified Rice Kernels- Premix - applicability of exemption N/N. 39/2017 CT (R) with effect from 1 Oct 2021 - HELD THAT:- Since under the head “Description of Goods” at Column (3), the use of words “Fortified Rice Kernel (Premix) supply for ICDS or similar scheme duly approved by the Central Government or any State Government” signifies that the goods in question must be supplied for ICDS or similar scheme duly approved by the Central Government or any State Government, which clearly means that the supplier must be aware beforehand that the particular quantity/ lot/ batch of said goods are intended for supply for ICDS or similar scheme.
In the instant case, as per the applicant's own admission they have to supply the FRK to the Rice Millers, enlisted in the letter dated 03.01.2022 and not to the agency (ies) entrusted by the Government for free distribution to the economically weaker sections of the society. From the above letter, it appears that the Rice Millers referred to in the letter dated 03.01.2022 have to supply, such goods (food preparation) to the agency (ies) entrusted by the Government in this regard and not the applicant - it is also clear that even the sample has to be taken from the rice Mills, where the fortified Rice is being manufactured and not from the premises of the applicant.
Thus, the designated Rice Millers have been requisitioned for supply of the fortified rice and the applicant has neither been supplying the said goods for free distribution to the economically weaker sections of the society under a programme duly approved by the Central Government or the State Government concerned, nor they are into final supply of said goods in terms of Notification No. 39/2017-C.T. (Rate) dated 18.10.2017 - the applicant is not eligible for concessional rate of tax of 5% under the exemption Notification No. 39/2017-C.T. (Rate) dated 18.10.2017.
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2022 (6) TMI 1165 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - purchase of Flats - it is alleged that Respondent had not passed on the benefit of Input Tax Credit (ITC) availed by way of commensurate reduction in the price of the flats - contravention of Section 171 of CGST Act - Interest - Penalty - HELD THAT:- Section 171 (1) of the CGST Act, 2017 deals with two situations:- One relating to the passing on the benefit of reduction in the rate of tax and the second pertaining to the passing on the benefit of the ITC. 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; hence the only issue to be examined is as to whether there was any net benefit of ITC with the introduction of GST. On this issue it has been revealed from the DGAP's Report that the ITC as a percentage of the turnover that was available to the Respondent during the pre-GST period (April-2016 to June-2017) was 2.34% and during the post-GST period (July-2017 to December-2018), it was 5.65% for the project 'Sports Vile'. This confirms that, post-GST, the Respondent has been benefited from additional ITC to the tune of 3.31% (5.65% - 2.34%) of his turnover for the project 'Sports Ville' and the same was required to be passed on to the customers/ home/shop buyers. The DGAP has calculated the amount of ITC benefit to be passed on to all the flat buyers as Rs. 1,42,45,741/- for the project “Sports Ville' which was availed by the Respondent.
The Respondent has not disputed the findings of the DGAP regarding method of computation of profiteering and the amount worked out by him. As such, the Authority finds no reason to differ from the above-detailed computation of profiteering in the DGAP's Report or the methodology adopted and hence, the Authority determines the profiteered amount for the period from 01.07.2017 to 31.12.2018, in the instant case, as Rs. 1,42,45,741/-, for the project 'Sports Ville'.
Interest - HELD THAT:- The Authority directs the concerned jurisdictional CGST/SGST Commissioner to ensure that such amounts are returned/passed on/ refunded along with interest as prescribed under Rule 133 (3) (c) of the CGST Rules, 2017 to each customers/ home/shop buyers by the Respondent, if not already paid. As observed by the Authority, the conclusive proof of passing benefits - Respondent is also liable to pay interest as applicable on the entire amount profiteered, i.e. Rs. 1,42,45,741/-, for the project 'Sports Ville”. Hence the Respondent is directed to also pass on interest @18% to the customers/ home/shop buyers on the entire amount profiteered, starting from the date from which the above amount was profiteered till the date of passing on/ return/refund, as prescribed under Rule 133 (3) (b) of the CGST Rules 2017 - the profiteering amount of Rs. 1,42,45,741/- for the project 'Sports Ville' along with the interest @ 18% from the date of receiving of advance from the customers/ home/shop buyers till the date of passing the benefit of ITC shall be paid/passed on by the Respondent within a period of 3 months from the date of this order failing which it shall be recovered as per the provisions of the CGST Act, 2017.
Penalty - HELD THAT:- Respondent has denied the benefit of ITC to the customers/ home/shop buyers in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and he has thus committed an offence under Section 171 (3A) of the Act and therefore, he is liable for imposition of penalty under the provisions of the Section. However, since the provisions of Section 171 (3A) have come into force w.e.f. 01.01.2020, whereas, the period during which violation has occurred is w.e.f. 01.07.2017 to 31.12.2018, hence the penalty prescribed under the above Section cannot be imposed on Respondent retrospectively.
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2022 (6) TMI 1164 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - construction service supplied by the Respondent - benefit of input tax credit not passed by way of commensurate reduction in the price in the project - contravention of section 171 of CGST Act - Penalty - HELD THAT:- The Authority finds that the allotment of units, agreements, booking, construction activity and receipt of payments had taken place in the post-GST era. The draw of lots for allotment of houses was conducted on 05.07.2017 in the presence of the committee constituted under the Affordable Housing Policy, 2013. The Authority also finds that first BBA between the flat buyers & the Respondent was executed on 20.07.2017 in the post GST period. On the basis of the sequence of the above events, it could be safely concluded that the above project had started after coming in to force of the GST w.e.f. 01.07.2017 and Applicants were allotted flats only after coming in to force of the GST w.e.f. 01.07.2017, as the allotment cum first tax invoice for demand was issued after the implementation of the GST w.e.f. 01.07.2017, hence apparently there was no pre-GST tax rate or input tax credit availability that could be compared with the post-GST tax rate and the input tax credit, to determine whether there was any benefit that was required to be passed on by way of reduced price.
It is established that there had been no additional benefit of ITC to the Respondent and hence he is not required to pass on the benefit to the above Applicants by reducing the prices of the flats. The Applicants could have availed the above benefit only if the above project was under execution/implementation before coming into force of the GST as the Respondent would have been eligible to avail ITC on the purchase of goods and services after 01.07.2017 on which he was not entitled to do so before the above date. Since there is no basis for comparison of ITC available before and after 01.07.2017, the Respondent is not required to recalibrate the price of the flats due to additional benefit of ITC. Hence, the allegations of the above Applicants made in this behalf are incorrect and therefore, the same cannot be accepted
Thus, Respondent had not contravened the provisions of Section 171 (1) of the CGST Act, 2017 and there are no merit in the Applications filed by the above Applicants and the same are accordingly dismissed.
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2022 (6) TMI 1163 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - service of construction of affordable housing provided by the Respondent - benefit of reduced ITC not passed on by commensurate reduction in the price - contravention of section 171 of CGST Act - HELD THAT:- The Authority finds that the Respondent has profiteered an amount of Rs 2,73,04,997/- during the period of investigation. Therefore, in view of the above facts, the Authority under Rule 133(3)(a) of the CGST Rules orders that the Respondent shall reduce the price to be realized from the buyers of the flats/shops commensurate with the benefit of ITC received by him as has been detailed above. The Authority directs that such amount profiteered as determined shall be passed on/returned by the Respondent to the recipients of supply alongwith the interest @18% from the date such amount was profiteered by the Respondent uptil the date such amount is passed on/returned to the respective recipients of supply.
It is also evident from the narration of the facts that the Respondent has denied benefit of ITC to the buyers of his flats in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and he has thus resorted to profiteering. Hence, he has committed an offence for violation of the provisions of Section 171 (1) during the period from 01.07.2017 to 29.02.2020 and is therefore, liable to imposition of penalty under the provisions of Section 171 (3A) of the above Act. However, perusal of the provisions of the said Section 171 (3A) 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 hence accordingly the penalty equivalent to ten per cent of the profiteered amount will be imposed upon him for the ,amount collected after 01.01.2020. However, no penalty shall be leviable if the profiteered amount is deposited/passed on by the Respondent within thirty days of the date of passing of this order by the Authority.
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2022 (6) TMI 1127 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - purchase of flats - it is alleged that the Respondent had not passed on the benefit of ITC to him by way of commensurate reduction in prices and charged full rate of GST on the amount due to him against payments - contravention of Section 171 of CGST Act - Interest and Penalty - HELD THAT:- On perusal of the records and the Reports of the DGAP, the Authority finds that the Anti-profiteering provisions do not apply to the project “The Serenas”, since the draw for the selection of the allottees, the allotments, the Builder-Buyer agreements, and construction activities were executed in the GST period only. The Respondent entered into an agreement with the Contractor for the construction of Residential Units on 31.08.2017 after which construction activities started on 10.091017. Further the Respondent held the draw on 20.07.2017. Post draw, the first Builder-Buyer agreement was entered into on 18.09.2017. Therefore, the Residential project “The Serenas” was launched in the post-GST regime and there was no price history of the residential units sold in the pre-GST regime which could be compared with the Post-GST base price to establish whether there was any profiteering by the Respondent or not as the Respondent neither availed any ITC nor had any turnover in pre-GST regime on Residential dwelling units.
The Authority finds and determines that the Respondent has profiteered by an amount of Rs. 42,21,321/- for the project `Signum 36' during the period of investigation i.e. 01.07.2017 to 30.06.2019. The above amount that has been profiteered by the Respondent from his shop buyers/ recipients of supply in the above mentioned project shall be refunded by him, along with interest @18% thereon, from the date when the above amount was profiteered by him till the date of such payment, in line with the provisions of Rule 133 (3) (b) of the GCST Rules 2017 - This Authority under Rule 133 (3) (a) of the CGST Rules, 2017 orders that the Respondent shall reduce the prices to be realized from the buyers of the shops commensurate with the benefit of ITC received by him.
Interest - HELD THAT:- The Respondent is also liable to pay interest as applicable on the entire amount profiteered, i.e. Rs. 42,21,321/-, for the project 'Signurn 36'. Hence the Respondent is directed to also pass on interest @18% to the customers/ shop buyers/ recipients on the entire amount profiteered, starting from the date from which the above amount was profiteered till the date of passing on/ payment, as per provisions of Rule 133 (3) (b) of the CGST Rules 2017.
Penalty - HELD THAT:- It is evident from the above narration of facts that Respondent has denied the benefit of Input Tax Credit (ITC) to the customers/shop buyers in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and he has thus committed an offence under Section 171 (3A) of the above Act and therefore, he is liable for imposition of penalty under the provisions of the above Section. However, since the provisions of Section 171 (3A) have come into force w.e.f. 01.01.2020 whereas the period during which violation has occurred is w.e.f. 01.07.2017 to 30.06.2019, hence the penalty prescribed under the above Section cannot be imposed on the Respondent retrospectively - Accordingly, Show Cause Notice directing him to explain why the penalty prescribed under Section 171 (3A) of the above Act read with Rule 133 (3) (d) of the CGST Rules, 2017 should not be imposed on him, is not required to be issued.
Application disposed off.
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2022 (6) TMI 1126 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - purchase of Flat - it is alleged that the Respondent had not passed on the benefit of Input Tax Credit (ITC) to him by way of commensurate reduction in prices - contravention of section 171 of CGST Act - Interest and Penalty - HELD THAT:- It is clear from a plain reading of Section 171 (1), that it deals with two situations:- one relating to the passing on the benefit of reduction in the rate of tax and the second about the passing on the benefit of the ITC. 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; hence the only issue to be examined is whether there was any benefit of ITC with the introduction of GST. On this issue, it has been revealed from the DGAP's Report that the ITC as a percentage of the turnover that was available to the Respondent during the pre-GST period (April 2016 to June 2017) was 0% and during the post-GST period (July 2017 to September-2020), it was 11.76% for the Project ‘Jeevan Ananda'. This confirms that post-GST, the Respondent has benefited from additional ITC to the tune of 11.76% (11.76% - 0%) of his turnover, and the same was required to be passed on to the customers/flat buyers/recipients. The DGAP has calculated the amount of ITC benefit availed by the Respondent which needs to be passed on to all the recipients of supply including the Applicant No. 1 as Rs. 1,85,70,263/-.
The Authority finds that the Respondent has profiteered by an amount of Rs. 1,85,70,263/- during the period of investigation i.e. 01.07.2017 to 30.09.2020. This amount of Rs. 1,85,70,263/- includes the amount relating to the Applicant No. 1 amounting to Rs. 1,27,892/-. The above amount that has been profiteered by the Respondent from the recipients of supply in the Project shall be refunded by him, along with interest @18% thereon, from the date when the above amount was profiteered by him till the date of such refund payment and per the provisions of Rule 133 (3) (b) of the CGST Rules 2017.
The Authority finds no reason to differ from the above-detailed computation of profiteering in the DGAP's Report or the methodology adopted and hence, the Authority determines the profiteered amount for the period from 01.07.2017 to 30.09.2020, in the instant case, as Rs. 1,85,70,263/-. This Authority under Rule 133 (3) (a) of the CGST Rules, 2017 orders that the Respondent shall reduce the prices to be realized from the buyers of the flats commensurate with the benefit of ITC received by him.
Interest - HELD THAT:- The Respondent is also liable to pay interest as applicable on the entire amount profiteered, i.e. Rs. 1,85,70,263/-. Hence the Respondent is directed to also pass on interest @18% to the customers/ flat buyers/ recipients on the entire amount profiteered, starting from the date from which the above amount was profiteered till the date of passing on by way of refund payment, as per provisions of Rule 133 (3) (b) of the CGST Rules 2017.
Penalty - HELD THAT:- The Respondent has denied the benefit of ITC to his home buyers in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has committed an offence under Section 171 (3A) of above Act. That Section 171 (3A) of the CGST Act, 2017 has been inserted in the CGST Act, 2017 vide Section 112 of the Finance Act, 2019, and the same became operational w.e.f. 01.01.2020. As the period of investigation was 01.07.2017 to 30.09.2020, therefore, the Respondent is liable for imposition of penalty under the provisions of the above Section for the amount profiteered from 01.01.2020 onwards.
Application disposed off.
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2022 (6) TMI 1082 - ALLAHABAD HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - petitioner submits that there is remedy of filing of an appeal under Section 112 of the UPGST Act before the GST Appellate Tribunal but since GST Appellate Tribunal has still not been constituted, as such, the petitioner has filed instant writ petition before this Court - HELD THAT:- It is prima facie evident from the Annexure No. 8 that M/s Shree Trading Company is registered on the portal of the GST. It is also evident therefrom that SGST and CGST has been paid by the petitioner. Further the petitioner has also not been afforded proper opportunity to rebut/respond to the demand notice as he was bed ridden at that time.
Matter requires consideration - List/put up this matter in the week commencing 8th of August 2022.
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2022 (6) TMI 1078 - CHHATTISGARH HIGH COURT
Seeking grant of bail - wrongful availment of Input Tax Credit - by procuring invoices from fake and fictitious firm - supply of goods without payment of tax and without issuing invoices - bailable offence or not - non-cognizable offence or not - HELD THAT:- Considering the fact that the allegation against the present applicant is of wrongfully utilizing Input Tax Credit of Rs.6,95,32,472/- and supplied taxable goods without payment of taxes and without issuing invoices to the tune of Rs.27,70,559/-, totalling Rs.7,23,03,031/-, and that offence under the Act are bailable and non-cognizable except for the offence under Section 132 (5) of the Act, further considering that the applicant can be punished with maximum sentence of 5 years with fine, he is in jail since 27.10.2021, further considering that Proprietor of the firm namely, Rohan Tanna and Abhishek Pandey have already been enlarged on bail by the co-ordinate Bench and also considering that the applicant in the bail application raised a ground that the offence is compoundable in nature and, therefore, this Court after considering all the aspects of the matter, particularly the period of detention and the amount involved finds appropriate that if the applicant deposits Rs.70 lakhs under protest or admission of the disputed amount, which would be adjusted in accordance with law, the applicant can be enlarged on bail with the conditions imposed.
Bail application allowed.
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2022 (6) TMI 1077 - MADRAS HIGH COURT
Maintainability of petition - availability of alternative remedy - Demand of an amount being the difference in the ITC availed in Form GSTR-3B which was auto populated in Form GSTR-2A - HELD THAT:- The GST enactments and the rules made thereunder are a complete code by themselves. The provisions in the GST Rules have been well thought of and have been drafted using the vast experience gained under the erstwhile MODVAT Rules under the erstwhile Central Excise Rules, 1944 and its subsequent avatars under the Cenvat Credit Rules, 2001, 2002 and later under 2004 and under the various VAT enactments and the VAT Rules made thereunder - Most of the difficulties faced in the implementation of GST law was are on account of the technical glitches as returns and forms are system driven and returns are filed electronically. The information contained therein are supposed to get captured and auto populated at the end customer/recipient of goods or services.
As far as the supplier of Goods and Services is concerned, the supplier is required to file a monthly return Form GSTR-1 under Rule 59(1) of the State CGST Rule, 2017. This form is to be uploaded electronically by the due date on the common portal by the supplier either directly or through Facilitation Centre notified by the Commissioner - If there is any variance between the information furnished in Form GSTR-2A, Form GSTR-4A or Form GSTR-6A furnished by the supplier and the credit tax availed in Form GSTR-2, the recipient is required to furnish details of inward supplies added, corrected, deleted by the recipient in Form GSTR-2, Form GSTR-4 and Form GSTR-6, in Form GSTR-1A through the common portal.
In case, corrections and amendments in Form GSTR-1A of the recipient is not accepted by the supplier in its Form GSTR-1, the question of availing input tax credit on the strength of invoices alone is not enough. In case, the information is not corrected by the supplier in GSTR-1, the input tax credit availed by the recipient is liable to be paid back - Though some of the circulars and clarifications issued in the context of exports have been cited by the learned counsel for the petitioner, they are not relevant in the context of availing input tax credit at the threshold stage.
Further, the Court have recognized few exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. None of these exceptions are attracted in the facts of the present case.
Admittedly, the petitioner has an alternate remedy by way of an appeal before the Appellate Commissioner under Section 107 of the CGST Act, 2007. Therefore, this writ petition cannot be entertained ignoring the statutory dispensation - Petition dismissed.
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2022 (6) TMI 1076 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - supply of Services by way of admission to exhibition of cinematography films - allegation is that the benefit of reduction in the GST rate on which was reduced w.e.f. 1.1.2019, vide Notification No. 27/2018- Central Tax (Rate) dated 31.12.2018 by way of commensurate reduction in prices, were not passed on - contravention of Section 171 of the CGST Act, 2017 - penalty - HELD THAT:- The rates of GST on “Services by way of admission to exhibition of cinematograph films where the price of admission ticket was above one hundred rupees' was reduced from 28% to 18% and “Services by way of admission to exhibition of cinematograph films where the price of admission ticket was one hundred rupees or less” was reduced from 18% to 12% w.e.f. 01.01.2019, vide Notification No. 27/2018- Central Tax (Rate) dated 31.12.2018. The benefit of reduction in GST rates was required to be passed on to the recipients by the Respondent as per the provisions of Section 171 of the Act.
There is no dispute relating to the fact that the Respondent has increased the base prices of the admission tickets in respect of the regular category and continues to charge the cine-goers at the prevailing rates despite a reduction in the GST w.e.f. 1.1.2019 vide Notification No. 27/2018-Central Tax (Rate) dated 31.12.2018. The Respondent in the written submissions as well as during the personal hearing has admitted the above-said liability of excess collection during the period 1.1.2019 to 30.4.2020.
The Authority finds that the Respondent has been profiteering by way of increasing the base prices of the tickets (Services) by not reducing the selling price of the tickets (Services) commensurately in the regular category, despite the rate reduction in GST rate on “Services by way of admission to exhibition of cinematograph films” where the price of admission ticket was one hundred rupees or above, from 28% to 180/0 w.e.f. 01.01.2019. From the Table 'B' above, it is evident that the base prices of the admission tickets were indeed increased, as a result of which the benefit of reduction in GST rate from 28% to 18% and 18% to 12% (w.e.f. 01.01.2019), was not passed on to the recipients by way of commensurate reduction in prices charged (including lower GST @ 18%). The total amount of profiteering covering the period of 01.01.2019 to 30.04.2020 for the 'Regular Category' was 12,83,999/-.
This Authority based on the facts discussed above has found that the Respondent has clearly resorted to profiteering in respect of 'Regular Category' by way of either increasing the base prices of the service while maintaining the same selling prices or by way of not reducing the selling prices of the service commensurately, despite a reduction in GST rate on “Services by way of admission to an exhibition of cinematograph films where the price of admission ticket is above one hundred rupees” from 28% to 18%” w.e.f. 01.01.2019 to 30.04.2020. On this account, the Respondent has realized an additional amount to the tune of Rs. 12,83,999/-from the recipients of 'Regular Category' which included both the profiteered amount and GST on the said profiteered amount. Thus the profiteering amount is determined as Rs. 12,83,999/-as per the provisions of Rule 133 (1) of the CGST Rules, 2017 in respect of 'Regular Category' only.
The Respondent is therefore directed to reduce the prices of his tickets of regular category as per the provisions of Rule 133 (3) (a) of the CGST Rules, 2017, keeping in view the reduction in the rate of tax so that the benefit is passed on to the recipients. The Respondent is also directed to deposit the profiteered amount of 12,83,999/- along with the interest to be calculated @ 18% from the date when the above amount was collected by him from the recipients till the above amount is deposited.
Penalty - HELD THAT:- The Authority finds that the Respondent has denied the benefit of rate reduction to his customers/recipients in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and resorted to profiteering and hence, committed an offence under section 171 (3A) of the CGST Act, 2017. Therefore, he is liable for the imposition of a penalty under the provisions of the above Section. Accordingly, notice be issued to him directing him to explain why the penalty under Section 171 (3A) of the above Act read with Rule 133 (3) (d) of the CGST Rules, 2017 should not be imposed on him for the profiteered amount collected from 01.01.2020 to 30.04.2020.
Application disposed off.
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2022 (6) TMI 1075 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - Project Suncity Avenue-102 - allegation is that the benefit of reduction in the GST rate by way of commensurate reduction in prices, were not passed on - contravention of Section 171 of CGST Act - penalty - HELD THAT:- This Authority observes that the benefit of additional Input Tax Credit of 3.07% of the turnover has accrued to the Respondent for the project “Suncity Avenue 102”. This benefit was required to be passed on to the recipients, however, the same was not done commensurately by the Respondent. Section 171 of the CGST, 2017 has been contravened by the Respondent, in as much as the additional benefit of ITC @3.07% of the base price has not been passed on by the Respondent to 736 recipients. These recipients were identifiable as per the documents provided by the Respondent, giving the names and addresses along with Unit no. allotted to such recipients. Therefore, the total additional amount of Rs. 2,62,56,652/- was required to be returned to the such homebuyers.
The Authority determines that the Respondent has profiteered an amount of Rs. 2,62,56,652/-. Therefore, given the above facts, the Authority under Rule 133 (3) (a) of the CGST Rules orders that the Respondent shall reduce the price to be realized from the buyers of the flats commensurate with the benefit of ITC received by him. The details of the recipients and benefit which is required to passed on to each recipient/homebuyer (including Applicant No. 1) alongwith the details of the unit are contained in the Annexure' A' to this order. The Authority directs that such profiteered amount as determined shall be passed on/returned by the Respondent to the recipients of supply alongwith interest @18% from the date such amount was profiteered by the Respondent uptil the date such amount is passed on/returned to the respective recipient of supply.
Penalty - HELD THAT:- The Respondent has committed an offence by violating the provisions of Section 171 (1) during the period from 01.07.2017 to 08.08.2019, and therefore, he is liable for imposition of penalty under the provisions of Section 171 (3A) of the above Act. However, perusal of the provisions of the said Section 171 (3A) 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 08.08.2019 when the Respondent had committed the above violation. Hence, the said penalty under Section 171 (3A) cannot be imposed on the Respondent retrospectively. Accordingly, notice for the imposition of penalty is not required to be issued to the Respondents.
This Order having been passed today falls within the limitation prescribed under Rule 133 (1) of the CGST Rules, 2017.
Application disposed off.
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2022 (6) TMI 1026 - PUNJAB AND HARYANA HIGH COURT
Seeking grant of Regular Bail - second complaint on identical allegations - It is contended that immediately after the petitioner secured bail pursuant to the order dated 18.05.2021, the present case was registered against her and she was again arrested on 18.05.2021 and is in custody till today - HELD THAT:- Admittedly, the petitioner is in custody in this case since 09.12.2020 and though the petitioner had secured bail on 18.05.2021 on a complaint containing identical allegations, the said benefit has been denied by filing a second complaint containing the same allegations.
The petitioner is ordered to be released on regular bail subject to furnishing bail bonds in the sum of Rs.10,00,000/- with one surety in the like amount to the satisfaction of the learned Illaqa Magistrate/Duty Magistrate with the conditions imposed - petition allowed.
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2022 (6) TMI 964 - MADRAS HIGH COURT
Demand of interest in terms of Section 50 of the Central Goods and Services Tax Act, 2017 - period July, 2017 to September, 2021 - HELD THAT:- Apprehending demand of recovery, since there is no response till date to the request seeking personal hearing, the present Writ Petition has come to be filed challenging the quantification in the impugned order.
Seeing as what remains is only a proper quantification of the demand based on the rival quantifications between the Department and the petitioner, it would suffice that the petitioner be directed to appear before the respondent on Friday, the 24th of June, 2022 at 10.30. am. without expecting any further notice in this regard. Let the parties deliberate upon the matter and arrive at a proper quantification of the demand, pursuant to which fresh demand of interest payable may be raised.
Petition allowed.
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2022 (6) TMI 963 - GUJARAT HIGH COURT
Seeking grant of Anticipatory Bail - Fraudulent availment of Input tax credit - present applicant is alleged to be the mastermind of the entire scam - relevancy of statement under Section 70 of the GCST Act - HELD THAT:- This Court based upon the submissions of the learned Public Prosecutor more particularly relying upon confidential documents provided to this Court, is of the opinion that the present applicant, who was mastermind of the entire scam, whereby the entity in question one M/s Madhav Copper Limited had availed input tax credit to the tune of Rs.137.28 Crores. It also clearly appears from the said documents that the present applicant was also a prime beneficiary of the scam in question. In the considered opinion of this Court, when learned Co-ordinate Bench of this Court has thought it fit not to exercise its discretion in favour of a person who had almost similar or slightly lesser role than that played by the present applicant in the scam in question, then certainly this Court would not exercise its discretion in favour of the present applicant.
Insofar as the submissions made by the learned Senior Advocate for the present applicant that the only material with the Investigating Officers, is the statement of co-accused, which may not be a basis, to implicate the present applicant, in the considered opinion of this Court, at this stage, the department based upon the material that had been collected by them, are inquiring/ investigating in the scam and whereas in the considered opinion of this Court, more particularly in view of the material shown to this Court by the learned Public Prosecutor, it could not be stated that the statements of the co-accused would be the only material which is available with the department.
The submissions made by learned Senior Advocate for the applicant more particularly with regard to admissibility of the statement under Section 70 of the CGST Act would not be appreciated by this Court at this stage - in the considered opinion of this Court, this should not be the case where this Court would exercise discretionary jurisdiction under Section 438 of the Code of Criminal Procedure to release the present applicant on anticipatory bail - Application dismissed.
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2022 (6) TMI 907 - DELHI HIGH COURT
Issuance of SCN - issuance of notice under Section 73 of the Act when show cause notice is already issued and adjudicated under Section 74, for the same cause of action - HELD THAT:- Issue notice to the Respondent, through all permissible modes, returnable on 05.08.2022 before the Roster Bench.
Till the next date of hearing, the impugned Demand Notice dated 02.06.2022 [Form GST DRC – 01A] – Reference Number: ZD070622001486M issued by the Respondent, is stayed.
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2022 (6) TMI 852 - MADRAS HIGH COURT
Restoration of petitioner's GST registration - no opportunity being given to explain the reason - HELD THAT:- When the matter is taken up for hearing today (ie. 17.06.2022), the learned counsel appearing for the petitioner submitted that the petitioner would deposit 10% of the total amount of tax within a period of three (3) weeks and file appeal before the Appellate Authorities as per Section 107 (6) (b) of Central Goods and Services Tax Act.
Recording the same, the petitioner is directed to deposit 10% of the total amount of tax, within a period of three (3) weeks from 20.06.2022 and he would make submission before the Appellate Authorities.
Petition dismissed.
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2022 (6) TMI 851 - PATNA HIGH COURT
Freezing of Bank Accounts of the petitioner - recovery of the amount of tax interest and penalty - infringement of the fundamental rights guaranteed to the petitioner under Article 14 and 19 (1)(g) and the constitutional right granted under Article 300A of the Constitution of India - non-constitution of GST council in the State of Bihar - remedy under Section 112 of the GST Act not available to petitioner - HELD THAT:- This Court finds that in the prayer portion of the writ application in paragraph ‘1’ (L), the petitioner has prayed for quashing of the order dated 16.12.2021 and summary of the demand issue in form GST APL-04 dated 21.12.2021, the petitioner has also challenged the order passed under Section 73 of the GST Act and the summary demand issued in Form GST DRC-07 dated 03.03.2020 but from the tone and tenor of the prayer itself it is clear that such reliefs are by way of consequential reliefs and unless the petitioner succeeds in challenging the vires of Section 16(4), perhaps he may not get the relief as prayed in paragraph ‘1’(L) of the writ application.
In the opinion of this Court, staying the impugned order in the light of Sub Section (8) of Section 112 of the GST Act would in sum and substance amount to staying the effect of Section 16(4) of the GST Act which this Court would restrain from doing - Application disposed off.
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2022 (6) TMI 850 - MADRAS HIGH COURT
Detention of goods alongwith the vehicle - quantum of security for provisional release of goods - discrepancies in the shipment of the goods and the documents accompanying the consignments - HELD THAT:- The statutory provision envisages detention and seizure, if the goods in question are found to have been conveyed in contravention of the provisions of the Act or Rules. Post such detention or seizure, the seized goods 'shall' be released subject to satisfaction of the conditions set out under clauses (a) to (c) of Section 129(1) of the Act.
Clauses (a) and (b) deal with the quantification of the penalty, clause (a) in the case of voluntary payment by the assessee and clause (b) in cases where the assessee does not come forward to remit the penalty. In either case, the remittance of the penalty is to be by way of security equivalent to the amount payable under clauses (a) or (b), furnished in the prescribed manner.
Let the petitioners furnish bank guarantees for the amounts quantified in terms of the impugned notices dated 01.06.2022, in proper form, upon receipt of which, the goods shall be released forthwith by the Officer - Petition disposed off.
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2022 (6) TMI 849 - GUJARAT HIGH COURT
Grant of refund of the amount of IGST already paid by the applicants with appropriate interest on such refund - Entry No.10 of Notification No.10/2017-IGST (Rate) dated 28.6.2017 - HELD THAT:- The Division Bench of this Court vide judgment and order dated 23.1.2020 [2020 (1) TMI 974 - GUJARAT HIGH COURT] passed in the captioned writ petition along with other writ petitions allowed the writ petitions and declared Entry No.10 of Notification No.10/2017-IGST (Rate) dated 28.6.2017 as ultra vires the Act. He would further submit that during the pendency of the present application, Civil Appeal No.1390 of 2022 and allied appeals preferred at the instance of the respondents also came to be dismissed by judgment and order dated 19.5.2022 passed by Hon'ble Apex Court. He, therefore, would submit that necessary direction may be issued to the respondents to refund the amount of tax already paid by the applicant.
The present application requires consideration and hence, the same is allowed.
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