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GST - Case Laws
Showing 21 to 40 of 131 Records
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2020 (6) TMI 676 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - Frozen Green Peas - allegation that the Respondent had not reduced the selling price of the “Frozen Green Peas”, when the GST rate was reduced - penalty - HELD THAT:- The profiteering amount is determined as ₹ 2,33,515/- as per the provisions of Rule 133 (1) of the CGST Rules, 2017 as per Annexure-12 of the Report. The Respondent is therefore directed to reduce the prices of the above products 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 ₹ 2,33,515/- along with the interest to be calculated at 18% from the date when the above amount was collected by him from the recipients till the above amount is deposited. Since the recipients, in this case, are not identifiable, the Respondent is directed to deposit the amount of profiteering of ₹ 2,33,515/- as per Table-B, mentioned above and Annexure-12 of the DGAP's Report dated 23.12.2019, in terms of Rule 133 (3) (c) of the CGST Rules, 2017, along with 18% interest in the Central and the State Consumer Welfare Funds of State of Andhra Pradesh and Telangana. The above amount shall be deposited within a period of 3 months from the date of this order failing which the same shall be recovered by the concerned Commissioner CGST/SGST as per the provisions of the CGST/SGST Act, 2017.
Penalty - HELD THAT:- The Respondent has denied the benefit of reduction in the tax rate to his buyers in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has thus resorted to profiteering. Hence, he has committed an offence under section 171 (3A) of the CGST Act, 2017, and therefore, he is liable for imposition of penalty under the provisions of the above Section. Accordingly, a Show Cause Notice be issued to him 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.
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2020 (6) TMI 675 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - purchase of Flat in the “Devaan” project of the Respondent - allegation that the Respondent had not passed on the benefit of Input Tax Credit (ITC) availed by him by way of commensurate reduction in the price of the above flat - contravention of section 171 of CGST Act - Penalty - HELD THAT:- 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/shops commensurate with the benefit of ITC received by him as has been detailed above. Since the present investigation is only up to 30.06.2019 the DGAP is directed to further investigate the quantum of ITC benefit under Rule 133 (4) of the above Rules which the Respondent is required to pass on to the home/shop buyers w.e.f. 01.07.2019 till 30.06.2020 or till the Completion Certificate is obtained by the Respondent whichever is earlier as the project is still under execution and submit his report as per the provisions of Rule 129 (6) of the above Rules.
Penalty - HELD THAT:- The Respondent has denied benefit of ITC to the buyers of the flats being constructed by him in his above project in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has thus resorted to profiteering. Hence, he has committed an offence under Section 171 (3A) of the CGST Act, 2017 and therefore, he is apparently liable for imposition of penalty under the provisions of the above Section. Accordingly, a Show Cause Notice be issued to him 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.
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2020 (6) TMI 674 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - purchase of Flat - allegation that the Respondent had not passed on the benefit of Input Tax Credit (ITC) by way of commensurate reduction in the prices - contravention of section 171 of CGST Act - penalty - HELD THAT:- The Respondent has benefited from the additional ITC to the extent of 8.73% of the turnover during the period from July, 2017 to March, 2019 and hence the provisions of Section 171 of the CGST Act, 2017 have been contravened by the Respondent as he has not passed on the above benefit to his customers and thus he has profiteered an amount of ₹ 19,23,01,682/- inclusive of GST @ 12% on the base profiteered amount of ₹ 17,16,97,930/-. Further, the Respondent has realized an additional amount of ₹ 4,06,859/- and ₹ 2,85,572 which includes both the profiteered amount @ 8.73% of the taxable amount (base price) and 12% GST on the said profiteered amount from the Applicant No. 1 and Applicant No. 2 respectively. He has further realized an additional amount of ₹ 19,16,83,441/- which includes both the profiteered amount @ 8.73% of the taxable amount (base price) and 12% GST on the said profiteered amount from the 907 flat buyers other than the Applicant No. 1 and 2. The details of the profiteered amount and the buyers have been mentioned by the DGAP in Annexure-14 of his Report dated 28.10.2019. These buyers are identifiable as per the documents placed on record and therefore, the Respondent is directed to pass on the amounts of ₹ 19,16,83,441/-, ₹ 4,06,859/- and ₹ 2,85,572/- to the other flat buyers, the Applicant No. 1 and the Applicant No. 2 respectively along with the interest @ 18% per annum from the dates from which the above amounts were collected by him from them till the payment is made, within a period of 3 months from the date of passing of this order as per the details mentioned in Annexure-14 attached with the Report dated 28.10.2019.
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 of the above Project commensurate with the benefit of ITC received by him as has been detailed above. Since the present investigation is only up to 31.03.2019 any benefit of ITC which accrues subsequently shall also be passed on to the buyers by the Respondent. The concerned Commissioner CGST/SGST shall ensure that the above benefit is passed on to the eligible flat buyers. In case the above benefit is not passed on by the Respondent the above Applicants or any other buyer shall be at liberty to approach the Haryana State Screening Committee to initiate fresh proceedings against the Respondent as per the provisions of Section 171 of the CGST Act, 2017.
Penalty - HELD THAT:- The Respondent has denied benefit of ITC to the buyers of the flats being constructed by him in his above project 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 under Section 171 (3A) of the CGST Act, 2017 and therefore, he is apparently liable for imposition of penalty under the provisions of the above Section. Accordingly, a Show Cause Notice be issued to him 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.
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2020 (6) TMI 658 - DELHI HIGH COURT
Carry forward of Transitional credit - credit of eligible dues in respect of stock available with the petitioner as on appointed day - vires of Rules l17 and 120A of the Central Goods and Services Tax Rules, 2017 as ultra vires Sections 140 and 174 of Central Goods and Services Tax Act, 2017 - HELD THAT:- List on 16th September, 2020.
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2020 (6) TMI 657 - DELHI HIGH COURT
Carry forward of Transitional credit - credit of eligible dues in respect of stock available with the petitioner as on appointed day - vires of Rules l17 and 120A of the Central Goods and Services Tax Rules, 2017 as ultra vires Sections 140 and 174 of Central Goods and Services Tax Act, 2017 - HELD THAT:- List on 16th September, 2020.
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2020 (6) TMI 656 - DELHI HIGH COURT
Carry forward of Transitional credit - credit of eligible dues in respect of stock available with the petitioner as on appointed day - vires of Rules l17 and 120A of the Central Goods and Services Tax Rules, 2017 as ultra vires Sections 140 and 174 of Central Goods and Services Tax Act, 2017 - HELD THAT:- List on 16th September, 2020.
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2020 (6) TMI 654 - DELHI HIGH COURT
Carry forward of Transitional credit - credit of eligible dues in respect of stock available with the petitioner as on appointed day - vires of Rules l17 and 120A of the Central Goods and Services Tax Rules, 2017 as ultra vires Sections 140 and 174 of Central Goods and Services Tax Act, 2017 - HELD THAT:- To await the judgment of the Supreme Court in UNION OF INDIA VERSUS BRAND EQUITY TREATIES LIMITED AND ORS. ETC. ETC. [2020 (6) TMI 517 - SC ORDER].
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2020 (6) TMI 644 - APPELLATE AUTHORITY FOR ADVANCE, RAJASTHAN
Classification of goods - Fortified Rice Kernels (FRK) - whether classifiable under HSN 19049090 or not - rate of tax - Challenge to AAR decision - HELD THAT:- From the manufacturing process, it is noted that to manufacture FRK, the natural rice has to be converted into Rice Flour. The moment the Rice is converted into Flour, essential characteristics of rice is changed and no grain remain present in the product and therefore, the same cannot be classified in any of the heading of Chapter 10 in terms of Chapter Note 1(A) ibid. Further, consequent upon changing from rice grains to rice flour and then preparation of any product out of rice flour, whether similar to Rice or not in shape, the resultant product does not fail in the inclusive part of the Chapter note 1(B) of Chapter 10, which specifically mentions Rice (i) Husked, (ii) milled, (iii) polished, (iv) glazed, (v) parboiled or (vi) broken as in all such form of Rice, natural grains are present in the product - thus, FRK is out of the ambit of Chapter 10.
The appellant supplied the FRK to various millers/suppliers with instruction “this product should be first mixed (blended) with traditional rice in ratio of 1:100 and then the mixed rice is cooked and consumed.” This is an admission of fact by the appellant that FRK is a product different from the traditional rice and to be used for blending in traditional rice - the FRK manufactured by the appellant do not have essential character of natural Rice and also does not merit classification under Chapter 10 in terms of Chapter Note 1 (A) of the said Chapter. It is appropriately classifiable under the sub-heading of Chapter 19 i.e. under Chapter sub-heading 19049000.
Appeal disposed off.
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2020 (6) TMI 643 - APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Supply of goods or not - transport of money by cash-carry vans - goods or not - levy of GST - rate of GST and/or Compensation Cess - Input tax credit.
Whether the money being transported by the Appellant in the cash carry vans can be construed as “goods” or otherwise for the purposes of determining the availability of Input Tax Credit of the GST paid on the purchase and fabrication of the subject transport vehicles?
HELD THAT:- On perusal of Rule 138 (14) of the CGST Rules, 2017, it is clearly evident that only goods are mentioned therein as well as in the annexure thereto. Among those goods, one of the items mentioned in the annexure bearing the heading “Description of Goods” is ‘money’, which clearly indicates that the legislature has considered ‘money’ as ‘goods’, when money is being transported from one place to another. By applying the above interpretation in the present fact and circumstances of the case in hand, it can decisively be inferred that money under question is nothing but goods.
The transportation of the currency for the purpose of cash replenishment in ATMs operated by the Appellant’s clients are being regulated by RBI in the capacity of the Regulatory Authority, the guidelines of which have to be mandatorily complied with by the Appellant for carrying out their activities. Therefore, the compliance of the guidelines issued by the RBI will not detract the subject money from being goods. Further, non- applicability of the RBI guidelines on the goods other than money is quite obvious, as the RBI is the regulatory authority only in the matter related to the money and not for all the goods. Hence, such arguments, put forth by the Respondent is erroneous and absurd, and do not merit to be considered.
Input tax credit - HELD THAT:- Now, when it has been established that money, transported by the Appellant in the cash -carry vans, can be considered as goods, ITC in respect of the cash carry vans used for the transportation of cash will be available to the Appellant in accordance with provisions of section 17 (5) (a)(ii) of the CGST Act, 2017.
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2020 (6) TMI 640 - ALLAHABAD HIGH COURT
Filing of Form GST TRAN-1 - interim order - HELD THAT:- The respondent no.3 shall reopen the portal within two weeks from today. In the event they do not do so, they will entertain the GST TRAN-1 of the petitioner manually and pass orders on it after due verification of the credits as claimed by the petitioner. They will also ensure that the petitioner is allowed to pay its taxes on the regular electronic system also which is being maintained for use of the credit likely to be considered for the petitioner. List this matter after six weeks.
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2020 (6) TMI 627 - APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Levy of GST - Supply of services or not - amount collected as membership subscription and admission fees from members - Input tax credit of the tax paid on the Banquet and Catering services for holding members meetings and various events.
HELD THAT:- In the absence of any mechanism to treat the appellant and its members as separate persons the said service does not tantamount to supply u/s 7 of the CGST Act, 2017, GST is not leviable on membership fees collected by the appellant from its members.
Whether the amount collected as membership subscription and admission fees from members is liable to GST? - HELD THAT:- It appears that the Club & Association does not provide only Social Services as an NGO, but also have other functions relating to Personal Functions which clearly amounts to furtherance of business. In lieu of consideration received as membership fees, admission fees and subscriptions are taxable as supply of services under GST. So, prima facie there appears a levy of GST.
If receipts are liable to GST, can the club claim input tax credit of the tax paid on banquet and catering services for holding members meetings and various events? - HELD THAT:- The Appellant is not providing any specific facility or benefits to its members against the membership subscription charged by it, as the entire subscription amount is spent towards meetings and administrative expenditures only. Thus, we conclude that the Appellant is not doing any business as envisaged under section 2(17) of the CGST Act, 2017.
Once it has been established that the Appellant is not doing any business in terms of section 2(17) of the CGST Act, 2017, it can be deduced that activities carried out by the Appellant would not come under the scope of supply as envisaged under section 7(1) of the CGST Act, 2017 - Since, it has been held herein above that impugned activities of the Appellant will not be construed as supply, question regarding the availment of ITC on the input services like catering services, banquet services, etc. does not arise.
The amount collected as membership subscription and admission fees from members is not liable to GST as supply of services.
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2020 (6) TMI 626 - DELHI HIGH COURT
Validity of order passed by the National Anti-Profiteering Authority - profiteering on the sale of its “food processor” product - HELD THAT:- Issue notice to unserved respondent No.4 by all modes including dasti. Petitioner is directed to deposit ₹ 4,53,949/- with Central and State Consumer Welfare Boards within three months - The interest amount as well as penalty and further investigation with regard to other impacted products as well as the letter dated 11th June, 2020 issued by the Director General of Anti Profiteering are stayed till further orders.
List the matter on 07th September, 2020.
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2020 (6) TMI 625 - CALCUTTA HIGH COURT
Vires of Rule 117 (4) of the CGST/SGST Rules, 2017 - violation of of Articles 14, 19(1) (g) and 265 of the Constitution of India - principles of natural justice - transitional credit of inputs held in stock - opportunity to file the declaration in CGST TRAN –2 - HELD THAT:- Transitory provisions, as the word indicates have to be given its due meaning. Transition from pre-GST Regime to GST Regime has not been smooth and therefore, what was reasonable in ideal circumstances is not in the current situation. In absence of any specific provisions under the Act, we would have to hold that in terms of the residuary provisions of the Limitation Act, the period of three years should be the guiding principle and thus a period of three years from the appointed date would be the maximum period for availing of such credit.
The petitioner has attempted to file TRAN within the time limit framed under the Rule. In the context of what has been stated discussed above, this court directs the respondent authorities to reopen the form TRAN II or accept manual filing of GST TRAN II to allow the petitioner to claim transitional credit held in stock as on the appointed date after proper verification including the invoices submitted by the petitioner. It is made hereby clear that such exercise has to be completed within 30.06.2020 so as to enable the petitioner to submit his GST TRAN II.
Application disposed off.
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2020 (6) TMI 624 - ALLAHABAD HIGH COURT
Initiation of Contempt Proceedings - Refund of admissible amount of GST to petitioner - HELD THAT:- Prima facie a case of contempt has been made out. However, considering the facts and circumstances of the case, one more opportunity is afforded to the opposite parties to comply with the aforesaid order of the Court within two months from the date of production of a copy of this order - The applicant shall supply a duly stamped registered envelope addressed to the opposite parties and another self-addressed stamped envelope to the office within two weeks from today.
This application is disposed of at this stage with liberty to the applicant to move a fresh application, if the order is not complied with by the opposite parties within the stipulated time.
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2020 (6) TMI 623 - GUJARAT HIGH COURT
Release of detained goods alongwith conveyance - Section 130 of CGST Act - HELD THAT:- We do not propose to go into the merits of the matter as we are of the view that we should allow the authority concerned to continue with the adjudication of the show cause notice issued under Section 130 of the Act. However, we are of the view that as the goods being groundnuts are perishable in nature, we should order release of the same along with the conveyance subject to certain terms and conditions pending the confiscation proceedings before the concerned authority.
The writ applicant is directed to deposit an amount of ₹ 54,000/towards tax and penalty and the balance amount of ₹ 5,67,000/shall be by way of a bank guarantee of any nationalized bank. On deposit of ₹ 54,000/and furnishing of the bank guarantee of the balance amount, the authority concerned shall immediately release the goods as well as the conveyance - application disposed off.
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2020 (6) TMI 622 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - purchase of a flat - allegation that the reduction in the rate of GST on the construction service, not passed on - contravention of section 171 of CGST Act - HELD THAT:- The provisions of Section 171 of the CGST Act, 2017 have been contravened by the Respondents as he has failed to pass on the benefit of additional ITC to his customers. Accordingly, he is directed to pass on an amount of ₹ 21,113/- to the Applicant No. 1 and an amount of ₹ 1,21,256/- (₹ 1,42,369 - ₹ 21,113/-) to the other flat buyers who are not Applicants in the present proceedings as per the details given by the DGAP in Annexure-45. The above amounts shall be paid within a period of 3 months from the date of issue of this Order to the Applicant No. 1 and the other eligible house buyers by the Respondent along with interest @ 18% from the date from which these amounts were realized by the Respondent from them, till they are paid as per the provisions of Rule 133 (3) (b) of the CGST Rules, 2017, failing which the above amounts shall be recovered by the concerned Commissioner CGST / SGST and paid to the eligible house buyers.
The Respondent has profiteered by an amount of ₹ 1,42,369/- during the period of investigation. Therefore, 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 as has been detailed above. The present investigation is only up to 31.08.2018 therefore, any additional benefit of ITC which shall accrue subsequently shall also be passed on to the buyers by the Respondent.
Penalty - HELD THAT:- The Respondent has denied the benefit of ITC to the buyers of the flats being constructed by him in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has thus profiteered as per the explanation attached to Section 171 of the above Act. Therefore, he is liable for imposition of penalty under Section 171 (3A) of the CGST Act, 2017 - Therefore, a Show Cause Notice be issued to him directing him to explain why the penalty prescribed under the above sub-Section should not be imposed on him.
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2020 (6) TMI 621 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - purchase of a flat in the Respondent’s project “Vedantam” - allegation that the Respondent had not passed on the benefit of Input Tax Credit which had accrued to him, by commensurate reduction in the price of the flat - penalty - HELD THAT:- This Authority hereby determines the profiteered amount as ₹ 40,92,054/- in terms of Rule 133 (1) of the CGST Rules, 2017 and directs the Respondent to pass on the benefit of ₹ 6,982/-[21,496 - 14,514] to the Applicant No. 1 and an amount of ₹ 40,70,558/- to the other buyers as per the details given in Annexure-18 of the DGAP’s Report dated 05.12.2018 along with interest @18% per annum to the flat buyers from the dates from which the above amount was collected by him from the buyers till the payment is made as per the provisions of Rule 133 (3) (b) of the above Rules. The Respondent is also directed to reduce the prices of his flats commensurately as per the details mentioned above in terms of Rule 133 (3) (a) of the above Rules - It is also clear from the facts of the case that the Respondent has been directed to pass on the benefit of ITC till 31.08.2018. Any benefit of ITC which may become available to the Respondent post 31.08.2018 would also be passed on by the Respondent to the eligible buyers. The Concerned Commissioner GST shall ensure that the above benefit is passed on to the eligible buyers and report submitted to this Authority.
Penalty - HELD THAT:- The Respondent has denied the benefit of ITC to the buyers of the flats being constructed by him in his Project ‘Vedantam’ in contravention of the provisions of Section 171 (1) of the CGST Act, 2017. Therefore, he is apparently liable for imposition of penalty as per the provisions of Section 171 (3A) read with Rule 133 (3) (d) of the CGST Act, 2017. Therefore, notice be issued to him to explain why penalty should not be imposed on him. Accordingly, the notice dated 11.12.2018 whereby the Respondent was asked to explain why penalty should not be imposed on him under Section 29, 122-127 of the CGST Act, 2017 read with Rule 21 and 133 of the CGST Rules, 2017 should not be imposed, is partially withdrawn to that extent.
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2020 (6) TMI 602 - APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Nature of supply / transaction - Development of land - Lease of property or supply of works contract for construction of flat - The appellant pleaded that the activity would amount to transfer of immovable property and hence not liable to GST levy at all. - Held that:- Though the appellant in the draft agreement has projected the said transaction as a lease transaction of residential unit in an apartment/building and has also drafted agreement in such a way to project it as a lease transaction, the said transaction cannot be a lease transaction but it is an agreement for construction of residential flats. We say so because the clauses in the agreement though purported to be a lease agreement as clauses which are in complete disharmony with a normal lease transaction.
When a flat/apartment is given on lease it is always a complete unit which is immediately handed over to the Lessee for use. The appellant has argued that the transaction purported to be undertaken by him will come within the purview of renting of residential dwelling for used as residence. However, in the present case, the agreement has taken place during the construction of the project and the lease payments are made slab wise before the completion of the project. This almost never happens in the lease of a flat or a unit.
It is seen that almost 95% of the amount comprising the lease consideration is paid before the possession of the apartment. It is difficult to believe that a Lessee will commit such amount before moving or enjoying the flat. All these leads us to believe that this is nothing but a sale transaction projected as a lease transaction.
Though the object of the RERA Act is to regulate the sale of building, apartment or building, this project is RERA registered. This fact and the interpretation by the Bombay High Court in the case of Lavasa also shows that the said transaction is not a lease.
Decision of AAR upheld wherein it was held that, the activity would be in the nature of “works contract” as defined under Section 2 (119) of the Act and fall under SAC 9954 and attract GST @ 18%.
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2020 (6) TMI 601 - DELHI HIGH COURT
Transitional Credit - Period of limitation - Held that:- the judgment of this Court in Brand Equity Treaties Ltd. & Ors. (supra) has been stayed by the Supreme Court in [2020 (6) TMI 517 - SC ORDER.] - Application for early hearing dismissed.
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2020 (6) TMI 600 - DELHI HIGH COURT
Transitional credit - Ultra vires provisions - Rules 117 and 120A of CGST Rules - petitioner states that the petitioner could not carry forward this credit for reasons beyond its control due to glitches in the system of the respondents - Held that:- Notices issued - To wait for the decision of Apex court in [2020 (6) TMI 517 - SC ORDER.]
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