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GST - Case Laws
Showing 81 to 100 of 123 Records
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2022 (6) TMI 423 - ALLAHABAD HIGH COURT
Seeking grant of Bail - allegation of registration of fake firms with the GST Department - non-existent firms or not - HELD THAT:- The illicit transactions which led to fake Input Tax Credit claims to be processed have also not been disclosed. The applicant is not a beneficiary of any illicit transaction. The applicant cannot be linked with the illicit transactions. The determination of the tax liability of the applicant has not been finalized.
There are merit in the submissions of learned counsel for the applicant and accordingly hold that the applicant is entitled to be enlarged on bail - the applicant is entitled to be enlarged on bail - bail application allowed.
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2022 (6) TMI 422 - RAJASTHAN HIGH COURT
Cancellation of registration of petitioner - Jurisdiction - power to suspend registration during the pendency of proceedings for cancellation of registration - Applicability of Sub-Section 1 of Section 29 of the Act of 2017 or not - HELD THAT:- If a drastic power of suspension of registration even during pendency of the proceedings has been conferred on the authority under the Statute, the proceedings itself are required to be brought to its logical conclusion one way or the other in a time bound manner and merely because the Statute does not provide any limitation for completion of proceedings, the authority cannot be allowed to sit over the matter and leave the person to suffer suspension of registration and all consequences to follow where the entire operations are brought to suspension.
The authority was required to decide the matter one way or the other within a reasonable time.
The respondent No.3 are directed to conclude the proceedings within an outer limit of 15 days from the date of receipt of the copy of this order - petition disposed off.
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2022 (6) TMI 421 - ANDHRA PRADESH HIGH COURT
Demand of GST with interest and penalty - Violation of principles of Natural Justice - opportunity of personal hearing not given to petitioner - Section 75(4) of the I.G.S.T./A.P.G.S.T. Act, 2017 - HELD THAT:- From a reading of the provision of Section 75(4) of the A.P.G.S.T. Act, it is very much evident that an opportunity of hearing shall be given when a request is made in writing by the person who is charged with tax or penalty or where any adverse decision is contemplated.
In the instant case, a notice for personal hearing, dated 13.10.2020, was issued to the petitioner. But on that day, the Assistant Commissioner directed the petitioner herein to produce documents for verification but however, did not give any date for hearing. Without hearing the petitioner, an adverse order came to be passed, which is impugned in this case. Therefore, it can be said that there is violation of Section 75(4) of the A.P.G.S.T. Act. It may not be necessary for us to go into the other aspects since the impugned order is liable to be set aside on this ground alone.
The matter is remanded back to respondent No.1 for consideration of the same after giving notice of personal hearing to the petitioner - petition allowed by way of remand.
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2022 (6) TMI 420 - MADHYA PRADESH HIGH COURT
Seeking permission for migration into GST - benefit of input tax credit - Circular No.2018/Computer (24)/70, dated 03-8-2018 - HELD THAT:- A bare perusal of the Circular dated 03-8-2018 shows that the Commissioner, Commercial Tax, Madhya Pradesh, Indore granted opportunity to the traders to migrate in GST, who were earlier registered with VAT, Entertainment Tax, Service Tax and Central Excise etc.. This opportunity was afforded to the dealers, inasmuch as certain dealers could not migrate by furnishing their full information on the website/portal.
This writ petition is disposed off with a direction to the respondents, to consider and decide the application, dated 29-8-2018 (Annexure-P/5) moved by the petitioner in quite promptitude, in the light of the Circular dated 03-8-2018 (Annexure-R/1) by passing a well reasoned order, within a period of sixty days from the date of receipt of certified copy of this order.
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2022 (6) TMI 419 - AUTHORITY FOR ADVANCE RULING, TELANGANA
Levy of GST - lease of land for mining - royalty paid in respect of Mining Lease can be classified under "Licensing services for the right to use minerals including its exploration and evaluation falling under the heading 9973 attracting GST - supply of like goods involving transfer of title in goods - determination of the liability to pay tax on contributions made to District Mineral Foundation (DMF) and National Mineral Exploration Trust (NMET) as per MMDR Act, 1957.
HELD THAT:- The contract for mining lease cannot be classified as ‘Leasing or Renting of goods’. Further the CGST Act or rules made there under or Notifications issued do not create a legal fiction for mining to be classified as ‘Leasing or Renting of goods’.
At Serial no. 17 of the Notification No. 11/2017 chapter heading no. ‘9973’ of SAC enumerates ‘leasing or rental services without an operator’. This entry was modified by removing ‘with’ operator vide Notification No. 27/2018 dated: 31.12.2018. According to explanation to this notification any reference to chapter, section or heading shall be with respect to scheme of classification of services annexed to the notification. In this annexure, the service leasing or renting of goods is enumerated under group head ‘99732’ - Under this group, the tariff item ‘997337’ enumerates ‘licensing services for the right to use minerals including its exploration and evaluation’. This is the appropriate entry concerning royalty on mining. Hence the rate of tax of the residual entry is attracted on the royalty paid for mining at the rate of 9% CGST & 9% SGST.
The holder of mining lease shall also pay, to the District Mineral Foundation of the district in which the mining operations are carried under Section 9B of the MMDR Act, 1957 a sum in addition to the royalty either 1/3rd of such royalty or any other such amount in terms of Second Schedule of the MMDR Act - Similarly the holder of the mining lease shall also pay an amount of 2% of the royalty payable to the National Mineral Exploration Trust under Section 9C of the MMDR Act, 1957.
Both these amounts are paid in addition to the royalty payable and in a proportion to the royalty paid for extracting minerals from a contract of mining lease. Therefore they are consideration for the service of right to use minerals including its exploration and evaluation which is enumerated as tariff item ‘997337’, this is same as royalty and hence attract tax at the rate of 9% CGST & SGST each.
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2022 (6) TMI 418 - AUTHORITY FOR ADVANCE RULING, TELANGANA
Levy of GST - forest permit fee - reverse charge mechanism - can services received by the Applicant be classifiable under heading 9973 of Notification No. 11/2017 Central Tax (Rate) dated 28th June, 2017 and thus be exigible to a lower rate of tax for the period prior to 01-01-2019? - HELD THAT:- The coal mines operated by the applicant are situated in the forest area and under rule 3 of the State Forest produce transit rules, no forest produce shall be moved into or from within the State by land or water. Such movement is permitted only when the person moving the produce obtains a forest permit by paying a fee which in the instant case is Rs. 10 per ton of coal transported - Further the contravention or violation of State Forest produce Transit rules will attract penalty under Sections 20 and 29 of A.P. Forest Act, 1967. Thus transporting coal through forest area without obtaining a forest transit permit and paying the transit fee is punishable under Section 20 (4) of the Forest Act. Penalties are fixed for breach of the provisions of the Rules. The transit fee is the amount of consideration for tolerating an act or a situation arising out of the legal obligation during the transport of the mineral through a forest area.
The facts of the present case clearly reveal that the forest department is collecting transit fee to allow the transit of vehicles carrying coal through the forest area, thus this is covered under entry 5(e) of the Schedule II to the CGST Act, 2017 wherein ‘to do an act’ is deemed to be a service. Forest department’s act of allowing such vehicles through forest area is therefore covered under this head. Further these services are not classifiable under heading ‘9973’ of Notification No. 11/2017 as the same relate to ‘Leasing or rental services without an operator’ whereas the present service relates to Entry 5(e) of the Schedule II to the CGST Act, 2017.
The consideration received is taxable on reverse charge basis vide the service entry at Serial No. 5 of Notification No. 13/2017 dated: 28.06.2017 - The supply is to be clarified as tolerating to do an act and is to be treated as service as per entry 5(e) of the schedule II to the CGST Act, 2017.
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2022 (6) TMI 361 - DELHI HIGH COURT
Freezing of Bank Accounts of petitioner - HELD THAT:- The provisional attachment order was issued on 09.03.2020. The validity period, unless the provisional attachment order is renewed, is one year, as per Section 83 of the CGST Act.
List the matter 31.08.2022.
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2022 (6) TMI 360 - MADRAS HIGH COURT
Attachment of property of petitioner - before completing the reassessment process, now invoking the provisions of Section 79 of the GST Act, the attachment GST DRC-16 has been issued - Section 83 of GST Act - HELD THAT:- Though it has been mentioned as if it was issued under Section 79 of the Goods and Service Tax Act, we find that such attachment order can be construed only as a provisional attachment order made under Section 83 of the said Act. Section 83 enable the revenue to issue provisional attachment order to protect revenue in certain cases and if such orders are issued that will be valid for one year, within which, if the assessment process is completed based on which further proceedings can be initiated by the revenue.
Therefore, merely because of the wrong quoting of the provision, the order impugned before the Writ Court cannot be successfully assailed by the appellant, as the law is well settled in this regard. Non-quoting of the provision of law or wrong quoting of the same may not vitiate the proceedings on that ground itself.
There is absolutely no scope for interfering with the order of the learned Judge, which is impugned in this Writ Appeal - Appeal dismissed.
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2022 (6) TMI 359 - MADRAS HIGH COURT
Validity of orders of attachment of bank accounts passed by the respondent/Revenue - Section 83 of the Central Goods and Service Tax Act, 2017 - HELD THAT:- Though an argument was advanced by the learned Standing Counsel appearing for Revenue that based on the tangible materials, which are available with the Revenue, they can very well sustain the order of attachment, this Court however feels that, the present order shall not stand in the legal scrutiny as it does not reveal any such tangible material. Therefore, if these orders are set aside, it does not preclude the Revenue to proceed further by once again invoke Section 83 of the Act.
The impugned orders are set aside - it is open to the respondent/Revenue to invoke Section 83 of the Act once again, if they have tangible materials at their hands - Petition disposed off.
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2022 (6) TMI 358 - MADRAS HIGH COURT
Seeking to allow petitioner to adjust the credit amount which was blocked - Section 74(5) of the Tamilnadu Goods and Services Tax Act - HELD THAT:- The issue has already been settled in numbers of cases, where, as per the Scheme under Section 74 of the act, first notice should be given or option should be given to the dealer under Section 74(5) of the Act and if the option is not utilised or responded by the petitioner dealer, then only further notice under Section 74(1) should be issued, thereafter, on receipt of reply or otherwise and considering the same, after giving personal hearing, the Revenue should continue to proceed with Section 74 proceedings.
Here in the case in hand, in the notice dated 01.11.2021, it is wrongly mentioned as Form GST ASMT-10 and that has been replied on 24.11.2021. Thereafter, straight away the order under Section 74(1) was issued on 09.12.2021. Therefore, it is a clear case where procedure contemplated under Section 74 especially, under Section 74(5) has not been complied with. Therefore, on that ground, this Court is inclined to set aside the order and remand the matter back to the respondents.
The matter is remanded back to the respondents for reconsideration and while reconsidering the same, the procedure contemplated especially in the context of Section 74(5) and 74(1) should be strictly followed by giving an opportunity to the petitioner including personal hearing - Petition disposed off.
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2022 (6) TMI 357 - MADRAS HIGH COURT
Rate of tax - petition was into wrong apprehension that he need not pay 12% of the tax and it is only 5%, accordingly he started to pay 5% of tax from November 2017 till April 2019 - partnership firm which was subsequently converted into a Private Limited Company - eligibility to claim Input Tax Credit - HELD THAT:- Even though the prayer sought for in these writ petitions is against the order dated 07.10.2021 issued under Section 61 of the GST Act, now in view of the stand taken by the petitioner as projected by the learned counsel appearing for the petitioner that, the petitioner is ready and willing to pay the tax at the rate of 12% by making the payment of the remaining 7% for the period from November 2017 to April 2019, we need not traverse into the merits of the case with regard to the veracity of the impugned notice dated 07.10.2021 as literally the said challenge is given up.
This Court feels that, if the petitioner is ready and willing to make the payment of the remaining 7% totally 12% tax for the period from November 2017 to April 2019 covering the assessment year 2017- 18, 2018-19 and 2019-20, it is open to the petitioner to make the said demand at the earliest.
Input Tax Credit - HELD THAT:- It is open to the petitioner to make a claim for ITC at the jurisdictional GST Office in the State of Kerala, where the Headquarter of the petitioner company is located and if such an availment is made by the petitioner by filing the return at the Kerala Tax Authorities jurisdiction, the same shall be considered and decided as per the eligibility of the petitioner within the meaning of the provisions of the GST Act, especially Section 16 and in this regard, the change of the GST registration number between old and new, in view of the change of composition of the petitioner's Firm into Private Limited Company, shall not stand in the way.
Petition disposed off.
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2022 (6) TMI 356 - PATIALA HOUSE COURT
Seeking grant of bail - wrongful availment and passing of Input Tax Credit - whimsical and arbitrary action on the part of the investigating agency, for treating the person committing graver offence with softer glove - HELD THAT:- GST has been hailed as a major tax reform in the post liberalisation era to check the cascading effects of taxation. However, unfortunately, some of the mischievous brains are busy removing the nuts and bolts from the vehicle of tax reforms to hinder the forward course of growth. The Courts of this country cannot afford to take a lenient view against such mischief - Economic offences cannot be treated as an ordinary crime and deserves to be dealt with sternly.
In the case at hand, applicant/accused is a key member of a crime syndicate involved in a multi crores GST fraud. As per Section 132 of CGST Act, not only the person who issued goodsless invoices but even the person who causes the issuance of such invoices is also liable to be prosecuted - the contention of Ld. Defence counsel that he has not been dealt evenly by the investigating agency as compared with principal offenders i.e. the persons behind M/s Imperial Merchants Pvt. Ltd. deserves some consideration. As per the remand application of the complainant department, it is reported that Sanjeev Goel, controller of M/s Imperial Merchants Pvt. Ltd has admitted that he issued goodsless invoices involving Input Tax Credit to the tune of Rs.69.13 crores. Admittedly, the liability of the applicant/accused reported by the complainant department is much less as compared to M/s Imperial Merchants Pvt. Ltd. Therefore, letting off persons behind M/s Imperial Merchants Pvt. Ltd is infact disturbing.
The failure of the investigating agency to deal with M/s Imperial Merchants Pvt. Ltd sternly would not absolve the applicant/accused of his individual liability. Thus, the contention of Ld. Defence counsel that the applicant/accused also deserves bail as others have not been arrested is merit less and the same deserves to be discarded.
The investigations in the instant matter smacks of whimsical and arbitrary action on the part of the investigating agency. It is infact baffling as to why two accused persons have been treated with different gloves by the investigating agency and the person whose role appears to be more graver and serious with respect to the alleged offences seems to have been treated with a softer glove.
Considering the nature of offence, seriousness of allegations and the crucial juncture of the investigation, there are no merits in the application at hand and the same is accordingly dismissed.
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2022 (6) TMI 355 - CITY CIVIL AND SESSIONS COURT, MUMBAI
Seeking grant of Bail - availing fake ITC without any valid document and movement of the goods in violation of Section 16 of CGST Act - HELD THAT:- As per say of the respondent, in the matters of Mewani, stand taken by the respondent is that those Mewani were running 17 fake firms and availed ITC and committed offence. Stand taken by the applicant since beginning that he is receiving Rs.20,000/- per month. He is not aware about business of the firms as business was handled by those Mewani. Those pleadings were taken on the basis of investigation by the respondent. Nothing is pointed out that if the applicant is released on bail, there is possibility of tampering with the evidence.
Applicant is directed to be released on bail on executing PR bond of Rs.50,000/- with one or more sureties of the same amount. In addition to this, applicant to deposit cash surety of Rs.50,000/- - bail application allowed.
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2022 (6) TMI 354 - CITY CIVIL AND SESSIONS COURT, MUMBAI
Seeking grant of Bail - availing and passing of fake Input Tax Credit (ITC) without any actual supplies of goods - bogus invoices - fraudulently making loss of revenue to the Government - violation of Section 132(1) (b) and (c) r/w. 132(5) of Central Goods and Services Tax Act 2017 - HELD THAT:- Offence committed by the applicant is economic offene which is well planned. In the investigation of the respondent, non existent/fake suppliers were noticed. Applicant availed benefit of ITC on the basis of fake invoices. Investigation is till in progress.
There is documentary evidence against the applicant of his involvement in the commission of the crime. Therefore, in my opinion, it is not a fit case to grant bail - bail application dismissed.
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2022 (6) TMI 353 - CITY CIVIL AND SESSIONS COURT, MUMBAI
Seeking grant of Bail - availment and utilisation of ineligible Input Tax Credit (ITC) on the basis of fake invoices issued in the name of or by several fake/non-existent firms - violation of Section 132(1) (b) and (c) r/w. 132(5) of Central Goods and Services Tax Act 2017 - HELD THAT:- Offence committed by the applicant is economic offense which is well planned. In the investigation of the respondent, non existent/fake suppliers were noticed. Applicant availed benefit of ITC on the basis of fake invoices. Investigation is till in progress. There is documentary evidence against the applicant of his involvement in the commission of the crime. At the time of arrest, applicant was informed about the grounds of his arrest. Applicant was present at the office of respondent and his statement was recorded, this shows that applicant was aware about the matter against him.
There is no violation of guidelines of Hon’ble Supreme Court in the matter of ARNESH KUMAR VERSUS STATE OF BIHAR & ANR [2014 (7) TMI 1143 - SUPREME COURT]. Further, this cannot be a sole ground to grant bail in such an offence. Therefore, it is not a fit case to grant bail.
In the matter of DAULAT SAMIRMAL MEHTA VERSUS UNION OF INDIA THROUGH THE SECRETARY AND OTHERS [2021 (2) TMI 762 - BOMBAY HIGH COURT] is concerned, in this matter, investigation was going on for more than two years and thereafter, there was arrest of the applicant. After arrest of the applicant, he immediately filed application U/s.138 of CGST Act for compounding of offence. He was released on bail upon certain conditions including deposit of Rs.25 Crores. In the present matter, applicant has not shown his willingness to cooperate with the investigation. Applicant has not disclosed name of the broker through whom he received fake invoices. Suppliers of the applicant are fake/non existent. Investigation is started just prior to one month of arrest of the applicant. Investigation is still in progress. Therefore, ratio laid down in the cited judgment cannot be applied to the facts of the present case.
Bail application dismissed.
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2022 (6) TMI 352 - CITY CIVIL AND SESSIONS COURT, MUMBAI
Seeking grant of anticipatory bail - passing huge amount of inadmissible Input Tax Credit (ITC) in fraudulent manner by the way of issuing bogus invoices without supply of any goods - availment of ITC on the basis of purchase invoices without receipt of goods - offence u/s 132(5) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Matter is at the investigation stage. Apparently, as per say of the respondent, officer of respondent visited the office of suppliers of the firm of the applicant. However, those suppliers are not in existence. This apparently shows that the applicant illegally availed ITC. Applicant may tamper with the evidence and interfere in the investigation.
So far as another ground raised by the learned advocate for the applicant on the point that if the ITC availed by the applicant is calculated year wise, then offence is bailable as it falls within the category of Rs.500 lakhs, is concerned, if this submission is accepted at it is, then application is not maintainable if the offence is bailable.
It is clear that calculation of the tax under Chapter XII is distinct from the Chapter XIX, which relates to offence and penalties. Therefore, there is no substance in the argument advanced by the learned advocate for the applicant. Considering the nature of offence involvement of the applicant, this is not a fit case to grant anticipatory bail to the applicant.
Bail application dismissed.
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2022 (6) TMI 279 - PUNJAB AND HARYANA HIGH COURT
Blocking of Input Tax Credit - fraudulent availment of Input Tax Credit - Rule 86A of the Central Goods and Services Tax Rules, 2017 - HELD THAT:- From bare perusal of the provision of Rule 86A of the CGST Rules, it is evident that the power under Rule 86A of the CGST Rules is exercised where the prescribed officer has reason to believe that credit of input tax available in the Electronic Credit Ledger has been fraudulently availed or the assessee is ineligible. The exercise vested in the prescribed Authority is subject to a satisfaction recorded by the said Authority and forming opinion to the effect that the Credit Ledger has been fraudulently availed or the assessee is ineligible in the situations as prescribed under the Rule itself.
The impugned order in the present case when tested on the touchstone of the provision contained in Rule 86A and the law referred to herein above, we find that the reason to invoke the power conferred under Rule 86A of CGST Rules against the petitioner is an intelligence report received from Principal Chief Commissioner, Central Excise and Central Tax, Vadodara Zone regarding a racket of firms indulging in fake judicial and passing of illicit ITC. Merely by recording that some investigation is going-on a drastic far-reaching action under Rule 86A of the CGST Rules cannot be sustained - It is trite law that a speaking order has to be self sustainable and respondents at this stage cannot be allowed to justify the same by adding reasons to it by filing additional affidavits. From the reading of the order it is evident that it is bereft of any material or 'reason to believe' that the petitioner is guilty of fraudulent transaction or is ineligible under Section 16 of the CGST Act.
The present writ petition is allowed.
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2022 (6) TMI 278 - DELHI HIGH COURT
Jurisdiction of GST officer to issue the impugned show cause notice - Taxable turnover below threshold limit prescribed qua tobacco products or not - seeking refund the amount, that was deposited respondents, although, given the taxable turnover generated by the petitioner, he was not exigible to tax, on the basis of wrong advise - HELD THAT:- The petitioner had identified the source from whom he purchased the goods - the taxable turnover of the petitioner was Rs.15 lakhs (approx), which, as noticed, is below the threshold limit of Rs.20,00,000/- fixed for tobacco products - the respondents had no jurisdiction to issue the impugned show cause notice and/or pass the impugned orders.
Refund allowed with interest interest @6% (simple) per annum. - the respondents will ensure that the subject premises are de-sealed forthwith.
Petition allowed.
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2022 (6) TMI 277 - MADRAS HIGH COURT
Levy of GST on the penalty levied in the disciplinary proceedings - clause 5(e) of the schedule II of the Central Goods Sales Tax Act, 2017 - Penalty was imposed on the employee against the allegation of fraudulent act and omissions - HELD THAT:- Qua levy of GST, in the order, based on which, the learned Judge passed the order impugned herein, it was held that the penalty imposed, under Rule 7(b) (xiv) of the Code in a disciplinary proceedings initiated against the employees, would not attract the GST and the penalty referred therein would only refer to the penalty imposed in the course of trade or commerce; and hence, the imposition of GST on the penalty is illegal and is liable to be set aside.
Appeal disposed off.
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2022 (6) TMI 276 - UTTARAKHAND HIGH COURT
Seizure of goods alongwith the vehicle - petitioner had escaped to refer the alphabetical figures, which was given therein, i.e. SAI/V235 - HELD THAT:- The learned counsel for the State had made reference to a judgement of the Hon’ble Apex Court in Achal Industries Vs. State of Karnataka [2019 (3) TMI 1483 - SUPREME COURT], and particularly, he makes reference to para 11 of the said judgement, which has provided that the Court cannot exercise the powers of an economic superiority, in determining the principle of levying of turnover taxes, on the assessee in pursuance to the commercial transaction, which in the said case was falling within the ambit Section 6-B (1) of Karnataka Sales Tax Act, 1957 - In fact, if the opening paragraph of the aforesaid judgement is taken into consideration, it was an aspect, where the charging Section was under consideration. The charging section, was pertaining to the charging of tax on the basis of the turnover of the assessee.
The scope of its interpretation has been limited only, qua applicability of the charging section; because of the economic superiority, which has been vested with the revenue for incorporation of a charging section. But here, since the issue involved is not factually akin to the one, which has been settled by the Hon’ble Apex Court in the case of Achal Industries, the same would not be applicable in the present case.
The imposition of the penal consequences due to an exception, which has been caused on account of the inadvertent human error by not referring the invoice number as “SAI/V-235” and by referring it to “235” only. Since even the invoice number “235” has been consistently maintained in all the documentations, which were made by the petitioner, since it never cleverly intended to evade the tax, or revenue of the State, the exception would fall to be within Clause 5 of the Circular dated 14th September, 2018 - the imposition made on account of the said human error, which has crept in in invoice number is pardonable under Clause 5 of the Circular dated 14.09.2018.
Petition allowed.
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