|
Advanced Search Options
GST - Case Laws
Showing 1 to 20 of 218 Records
-
2021 (1) TMI 1317
Taxability of unincorporated associates - principle of mutuality - Applicability of decision in the case of STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT] - HELD THAT:- The impugned order is dated 27.06.2019, whereas the judgment of the Supreme Court is dated 03.10.2019 and the Officer did not thus have occasion to take note of the same.
Hence impugned order of assessment dated 27.06.2019 is set aside and the matter remitted to the file of the Assessing Authority to re-done in the light of the judgment of the Supreme Court in Calcutta Club Limited.
The writ petition is disposed off.
-
2021 (1) TMI 1316
Prayer for a mandamus directing the respondent to correct GSTR statements - HELD THAT:- This request ought to have been made first before the respondent, instead of which the petitioner has directly approached this Court. Thus, this writ petition is pre-mature. The petitioner is permitted to file a representation seeking the same relief as sought here and pursue the same.
Writ petition is dismissed.
-
2021 (1) TMI 1301
Adjudication not finalised even after lapse of more than 10 years - Denial of CENVAT Credit - recovery of rebate claim - petitioner purchased their raw material from J & K based manufacturer who did not purchase any crude Mentha oil from the farmers - HELD THAT:- The present petition stands allowed in terms of decision in the case of SHREE BALAJI AROMATICS PVT. LTD., HINDUSTAN MINT AND AGRO PRODUCTS PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS AND SERVICES TAX, CHANDIGARH. [2021 (1) TMI 1300 - PUNJAB AND HARYANA HIGH COURT], where it was held that The show cause notices having been issued long back more than a decade are not sustainable in the eyes of law, and thus, deserve to be quashed.
Petition allowed.
-
2021 (1) TMI 1300
Adjudication not finalised even after lapse of more than 10 years - Denial of CENVAT Credit - recovery of rebate claim - petitioner purchased their raw material from J & K based manufacturer who did not purchase any crude Mentha oil from the farmers - HELD THAT:- The decision in the case of M/S MENTHA & ALLIED PRODUCTS LTD THROUGH ITS AUTHORISED REPRESENTATIVE SATYA NARAIAN VERSUS COMMISSIONER, CENTRAL GOODS & SERVICE TAX, CHANDIGARH AND M/S ARORA AROMATICS PVT. LTD. VERSUS UNION OF INDIA AND OTHERS [2020 (12) TMI 1230 - PUNJAB AND HARYANA HIGH COURT] would cover the case of the petitioners in their favour, where it was held that The show cause notices having been issued long back more than a decade are not sustainable in the eyes of law, and thus, deserve to be quashed.
Petition allowed.
-
2021 (1) TMI 1287
Levy of GST - GTA Services - diesel filled free of cost by the service recipient in the engaged chartered (dedicated) vehicles, would form part of value of supply of service charged by the applicant or not - HELD THAT:- The applicant in the instant case is required to provide trucks / trailers on a day to day basis along with the driver and report at the unit of the service recipient and the fuel for providing such service has been kept within the scope of the service recipient and not in the scope of work of the applicant. Thereafter the applicant will be issuing consignment note /bilty for each vehicle load / consignment. As per Notification No. 11/2017-Central Tax (Rate) dated 28th June, 2017, “goods transport agency” or GTA means any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called.
There can be no dispute whatsoever: as regards the fact that fuel forms the single most important factor in rendering Goods Transport Service by a GTA and to visualize a Goods Transport Agency providing Goods Transport service without having any obligation or responsibility towards fuel / fuel cost is inconceivable. Cost of Fuel is definitely a consideration for the said supply as per the definition of “consideration” supra, in the course of furtherance of business and forms the most vital part in the intended supply of goods transport service by a GTA. Goods Transport Agency or GTA provides service in relation to transport of goods by road and to perceive provision of this service without the element of fuel, can in no way be a logical or workable proposition - if the proposed concept of provision of “free of cost diesel” by the service receiver for the instant supply of service of transportation of goods by road that too unaccounted by the service provider CIA, is justifiable it becomes all the more inconceivable to visualize a situation when the service receiver would besides providing free of cost diesel would also be providing “free of cost trucks/trailers” for the instant supply.
It is also seen that subsection (4) to Section 15 of the CGST Act, 2017 provides that where the value of the supply of goods or services or both cannot be determined under sub-section (1), the same shall be determined in such manner as may be prescribed. In the instant case, as price doesn't appear to be the sole consideration for the supply in question, in as much as diesel the most important ingredient consumable required for rendering the said supply of service of transportation by the applicant GTA is being provided by the service receiver, resort has to be taken to the valuation rules as prescribed - in the instant case in hand, where the supply of service being rendered is transportation of goods by road by the applicant GTA, and as diesel being provided free of cost being a consideration not wholly in money, the value of such supply shall be the sum total of consideration in money and such further amount in money as is equivalent to the consideration not in money which is known at the time of supply. This also goes on to substantiate that the cost of diesel provided by service receiver is to be considered for arriving at the GST liability in such supply.
In the instant transaction by the applicant diesel filled free of cost by the service recipient in the engaged chartered (dedicated) vehicles would form part of value of supply of service charged by the applicant and accordingly GST at the applicable rate would also be leviable on value inclusive of the cost of diesel filled by the service recipient, under GTA service.
-
2021 (1) TMI 1285
Levy of IGST under Reverse Charge Mechanism - deemed Ocean Freight on import of goods (raw material) on CIF basis - inter-state supply or not - HELD THAT:- An importer of goods is liable to pay 5% IGST under reverse charge on services by way of transportation of goods by a vessel from a place outside India up to the Customs station of clearance in India, provided by a person located in non-taxable territory to a person located in non-taxable territory and in case actual value of service (actual value of freight) is not known to importer, the same shall be deemed to be 10% of the CIF value of imported goods - Import of goods has been defined in the IGST Act, 2017 as bringing goods into India from a place outside India. All imports shall be deemed as inter-State supplies and accordingly Integrated tax shall be levied in addition to the applicable Custom duties. The IGST Act, 2017 provides that the integrated tax on goods imported into India shall be levied and collected in accordance with the provisions of the Customs Tariff Act, 1975 on the value as determined under the said Act at the point when duties of customs are levied on the said goods under the Customs Act, 1962. The integrated tax on goods shall be in addition to the applicable Basic Customs Duty (BCD) which is levied as per the Customs Tariff Act. In addition, GST compensation cess, may also be leviable on certain luxury and demerit goods under the Goods and Services Tax (Compensation to States) Cess Act, 2017.
Under the GST regime, Article 269 A constitutionally mandates that the supply of goods, or of services, or both in the course of import into the territory of India shall be deemed to be supply of goods, or of services, or both in the course of inter-State trade or commerce for levy of integrated tax. So, import of goods or services will be treated as deemed inter-State supplies and would be subject to Integrated tax - While IGST on import of services would be leviable under the IGST Act on reverse charge basis, the levy of the IGST on import of goods would be levied under the Customs Act, 1962 read with the Custom Tariff Act, 1975. Accordingly, the concept of “double taxation” propounded by the applicant in their application is thus found to be unsubstantiated, bereft of merit.
In the instant case, the applicant appears to be questioning the veracity and validity of levy of IGST on ocean freight under reverse charge mechanism, as stipulated under the aforesaid Notifications issued by the Central Government, on the recommendations of the GST council deriving powers as envisaged under section 5, subsection (1) of section 6 and clause (iii) and clause (iv) of section 20 of the Integrated Goods and Services Tax Act, 2017 (13 of 2016) road with sub-section (5) of section 15 and sub-section (1) of section 16 of the Central Goods and Services fax Act, 2017 (12 of 2017) and under sub-section (3) of section 5 of the Integrated Goods and Services Tax Act, 2017 (13 of 2017).
In terms of prevailing provisions of the IGST Act, 2017 and the Rules made there under, the applicant in addition to IGST on import of goods levied under the Customs Act, 1962 read with the Custom Tariff Act, 1975 would also be liable to pay IGST on deemed ocean freight under reverse charge mechanism as stipulated under Notification No. 10/2017-I.T.(Rate) read with Notification No. 8/2017-I.T.(Rate).
-
2021 (1) TMI 1264
Reimbursement of differential tax amount arising out of change in tax regime from Value Added Tax (VAT) to Goods and Service Tax (GST) - requirement to pay tax which was not envisaged while entering into the agreement - change in the regime regarding works contract under GST - HELD THAT:- The Government has now come out with a revised guidelines in this respect in supersession of the guidelines issued vide Finance Department letter dated 7th December, 2017. He has filed Additional Counter Affidavit of Opposite Party-authority in similar cases annexing the revised guidelines relating to works contract under GST issued by the Government of Odisha, Finance Department vide Office memorandum No. FIN-CTI-TAX-0045-2017/38535/F Dated 10th December, 2018.
The Petitioner shall make a comprehensive representation before the appropriate authority within four weeks from today ventilating the grievance. If such a representation is filed, the authority will consider and dispose of the same, in the light of the aforesaid revised guidelines dated 10th December, 2018 issued by the Finance Department, Government of Odisha, as expeditiously as possible, preferably by 19th March, 2021.
Petition disposed off.
-
2021 (1) TMI 1255
Valuation of supply of services - act of recovering electricity expenses by the appellant - Pure Agent Services or not - Whether reimbursement of electricity expenses, by the lessee to lesser (appellant) would form part of taxable value? - HELD THAT:- In the instant case, reimbursement of electricity expenses had not been made on actual basis, by the lessee to lesser as it had been collected in advance with rent and further adjusted by raising the invoice/bill/memo/document by the lessor. Further, the appellant has failed to establish themselves as a pure agent. Therefore, in the instant case, the so called reimbursement of electricity expenses would form part of taxable value in term of clause (c) subsection (2) of section 15 of the CGST Act, 2017 - appellant is not working as pure agent.
The appellant has stressed upon Ruling given by the Authority for Advance Ruling Gujarat in the case of IN RE: M/S. GUJARAT NARMADA VALLEY FERTILIZERS & CHEMICALS LTD., [2021 (1) TMI 596 - AUTHORITY FOR ADVANCE RULING, GUJARAT] - In this regard, it is opined that these orders have not been passed by the higher forum than the present one; therefore, the same are not being considered.
Appeal disposed off.
-
2021 (1) TMI 1254
Credit of GST paid - credit of the GST charged by vendor at the time of supply of goods and services to it, which are used for carrying out the following activities for setting up of MRO facility which will be rented out - non-speaking order - violation of principles of natural justice - HELD THAT:- The appellant, nowhere in their appeal memo, could bring forth any evidence of availability of any such contingencies as enumerated above for producing substantial additional documents at the appellate stage. Given the fact that the appellate authority, neither has been empowered to entertain these additional facts nor, in absence of an specific provision, have the right to remand the case back to the original authority, we find ourselves not able to take up these additional evidences despite of several case laws having been cited by the appellant in their favour which pertains to the earlier period. The appellant has placed reliance upon several case laws in support of his claim that additional substantial evidences can be produced at the appellate stage.
The case law relied upon by the appellant in the case of NORTH EASTERN RAILWAY ADMINISTRATION, GORAKHPUR VERSUS BHAGWAN DAS [2008 (4) TMI 544 - SUPREME COURT] wherein it has been held by the apex court that though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 C.P.C., which carves out an exception to the general Rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and imitations as may be prescribed. From the facts of the case and the relevant provisions as contained in the rule 112 as referred to above, the additional substantial evidences cannot be allowed to be relied upon at the appellate stage.
Section 16 (1) of the CGST Act specifically provides that every registered person shall be entitled to take credit of the input tax charged on any supply of goods or services or both made to him, which are used or intended to be used in the course or furtherance of his business. Such entitlement is subject to fulfillment of certain conditions such as possession of invoice, receipt of goods/service, payment of tax to Government etc. as provided under section 16(2) of the GST Act, 2017. However, the availability of credit is subject to the restrictions as stipulated under Section 17(5)(d) of the GST Act - it is clear that the restriction imposed herein is absolute in nature as it seeks to override Section 16(1) which entitles a registered taxpayer to avail credit on goods or services used or intended to be used in the course or furtherance of business. Irrespective of the fact that the goods or services are used for construction of immovable property which in turn will be used for conducting business, credit is not available; if the ownership of the property remains with the said person. The legislature, in his wisdom, think it proper to stop the flow of seamless credit once immovable property comes into existence and the ownership is fixed.
After having been established the fact that the civil construction undertaken by the appellant is not a plant but an immovable property, we came to the another argument of the appellant where they claim that construction was under taken on account of Elcom and not on their own account and therefore the bar in section 17(5)(d) does not apply to such immovable property, it is observed that at the time of construction, every structure is constructed with a special purpose in the supervision of his own or other. The fact remained that appellant is the owner of the said immovable property -and it has not been sold to any other person. In future, it may be used for other than specific purpose related to his own and/or other without change of a brick. In future, the appellant's construction may also be used many other but quite different purposes by the appellant himself or by other with agreement of appellant - Against the material receipts, the Appellant has paid the bill amount in advance for procuring of goods and services. Further, it has been agreed that M/s Akanksha Contracts Pvt. Ltd. will raise a consolidate invoice for each month, which will include value of both goods and services so supplied along with adjustments regarding the advance so received.
In view of specific exclusion mentioned under Section 17(5) (c) & (d) of CGST Act, it is concluded that ITC is not available for construction of an immovable property even when such goods or services or both are used in course or furtherance of business.
The appeal filed by the appellant has no merit and rejected accordingly.
-
2021 (1) TMI 1252
Constitutional validity of Section 174 Central Goods and Services Tax Act, 2017 - HELD THAT:- The petitioner has been made out ground for granting of interim order. It is ordered that until further orders, payment of service tax for grant of Mining Lease/Royalty shall remain stayed subject to petitioner filing of the undertaking before this Court that in case, if the petitioner did not succeed in the petition, the petitioner would discharge the obligation for payment of service tax on the royalty.
The petitioner has filed seeking dispensation of production of certified copy of Annexure-A, C, D and E - Application disposed off.
-
2021 (1) TMI 1249
Seeking amendment in dates - Change in date of adjudication order - HELD THAT:- Prayer being formal is allowed. Let the prayer indicated in paragraph 7 of the instant I.A. be incorporated in paragraph 1 of the writ petition. I.A. Nos.423 of 2021 and 425 of 2021 stand disposed of.
Matter be listed in the 1st week of March 2021. Petitioner, in the meantime, may file rejoinder thereto, if so advised.
-
2021 (1) TMI 1248
Impleadment of Central Goods and Services Tax through Principal Commissioner - HELD THAT:- Considering the nature of challenge and the inter play of certain provisions of the JGST Act, which are pari materia with the CGST Act, it is deemed proper to implead the Central Goods and Services Tax through Principal Commissioner as respondent no. 5 in the instant writ petition. Let such addition be carried out by learned counsel for the petitioner within 10 days. Office to place the file for inspection and addition on requisition being made within the same time.
Learned counsel for the CGST is allowed 4 weeks’ time to file counter affidavit. One week time thereafter is allowed to learned counsel for the petitioner to file rejoinder, if necessary.
-
2021 (1) TMI 1222
Seeking for final decision in the next hearing - HELD THAT:- The High Court is requested either to dispose of the writ petition(s) itself or take a final decision on the interim application on the next date of hearing i.e. 12-2-2021. In case, final decision cannot be taken on the above said date, a short adjournment may be granted and the interim application may finally be decided as early as possible.
The Special Leave Petitions stand disposed of.
-
2021 (1) TMI 1221
Refund of unutilized Input Tax Credit - inverted duty structure - rejection of refund of appellant mainly on the ground that of Para 4.2 of Circular No. 59/33/2018-GST, dated 4-9-2018, the claimant is not eligible for the refund on input services and eligible for the refund on Inputs - HELD THAT:- The appellant has pleaded that the tax paid on services is also covered under the definition of input tax credit as defined under Section 2(63) read with Section 2(62) of CGST Act, 2017. In absence of specific exclusion regarding refund of input tax credit on services under Section 54(3) of CGST Act, 2017 may not be denied by the Authorities. Further, the appellant has pleaded that the benefit given under Section cannot be restricted/withdrawn by Rules and section will prevail over rule as Rules are subordinate to the Act.
The Central Government, in contemplation of the powers conferred by Section 164 of the Central Goods and Services Tax Act, 2017 (12 of 2017), has amended the Central Goods and Services Tax Rules, 2017 by issuing the Notification No. 26/2018-Central Tax, dated 13-6-2018 - the subject matter has also been under consideration at various judicial and quasi-judicial authorities and the recent progression in the matter is prominent to deliberate cautiously hereunder, which is not only a obiter dicta but also laid the foundation for formulation of the principles of law for the purpose of deciding the present problem before us on this issue.
The amendment by the Notification No. 26/2018-Central Tax, dated 13-6-2018 is intra vires to the Section 54(3) of the CGST Act, 2017 provisions. Further, the Rule 89(5) is not contrary to the provisions of Section 54(3) of the CGST Act, 2017 as amended albeit it, as a corollary, Rule 89(5) of the CGST Rules, as amended, is in conformity with Section 54(3)(ii).
The scope, function and role of amendment as adumbrated in above paras and on applying the ratio decidendi of the Hon’ble Madras High Court, I find that the lexes of the amendments are amply justified. Thus, refund of input services/capital goods on account of inverted duty structure is not admissible in terms of Section 54(3) read with Rule 89(5) of the CGST Act/Rules, 2017 - appeal dismissed.
-
2021 (1) TMI 1204
Seeking grant of bail - Input tax credit - issuance of fake invoices - Section 132 (1)(b)(c) of the Central Goods and Services Act, 2017 - HELD THAT:- The SLP dismissed.
-
2021 (1) TMI 1203
Seeking grant of bail - fradulent availment of ITC - possibility of tampering the prosecution evidence - HELD THAT:- This court observes that the offence is triable by the Magistrate and trial will take long time. Further, as per section 132 (2) of CGST, Act. the maximum punishament is five years and the allegation against the applicant is yet to be established during the trial and trial will take long time. Further the object of the is secure the presence of the accused before the trial. Thus, seeing the quantum of sentence accused is likely to face, gravity of the offence, the liberty of an individual being involved, the period of custody of the accused, this court is of the considered opinion that the applicant / accused is entitled for concession of regular bail in this case.
The applicant namely, Shri Nimish Niranjan Siria, is ordered to be released - Application allowed.
-
2021 (1) TMI 1200
Taxability - copper scrap - HELD THAT:- On the issue of valuation, it does appear that the petitioner had relied on the certificate of the purchaser dealer at Delhi to establish that the value of goods is not more than ₹ 50 per kg on the other hand, it is not clear as to how and on what basis the valuation had been taken at ₹ 380 per kg that too without adopting the procedure prescribed under the Act.
List immediately thereafter.
-
2021 (1) TMI 1199
CENVAT Credit - tax invoice was found not supporting the goods as discovered upon physical verification - HELD THAT:- There was nothing to doubt the ownership over the goods and ownership may arise even if the dealer is an unregistered dealer. In that regard, it has been further submitted that there was no competing claim made by any other person as to the title of the goods.
Matter requires consideration.
-
2021 (1) TMI 1198
Levy of GST - supply of service by the applicant Corporation in recovery of expenses from DISCOMs as well as UPPTCL and other power companies by way of book entries - inclusion of incidental expenses in value of supply - recovery against certain expenses such as interest cost, salary, depreciation, etc. - transfer of miscellaneous incomes of the applicant Corporation to DISCOMs, UPPTCL and other power companies - taxable expenditure will be allowed as ITC to the corporation for further adjustment of GST payable on recovery of expenses by way of book entries - difference of opinion.
HELD THAT:- In view of difference of opinion between the Members of Appellate Authority for Advance Ruling for Goods and Service Tax, Uttar Pradesh, no ruling can be issued on the questions raised by the Appellant, in terms of the provisions of Sub Section 3 of Section 101 of CGST Act, 2017. Thus the Advance Ruling issued vide Order IN RE: M/S. UP POWER CORPORATION LTD., [2020 (9) TMI 1226 - AUTHORITY FOR ADVANCE RULLING, UTTAR PRADESH] by the Authority for Advance Ruling, Uttar Pradesh, is deemed to be not in operation.
-
2021 (1) TMI 1196
Classification of services - Project Development Service (i.e. Detailed Project Report Service) and Project Management Consultancy services (PMCS) provided by the applicant to recipient under the Contract for SUDA and the Project Management Consultancy services (PMC) under the Contract for PMAY - would qualify as an activity in relation to function entrusted to Panchayat or Municipality under Article 243G or Article 243W respectively, of the Constitution of India? - Pure services or not - applicability of serial number 3 of Notification No. 12/2017-Central Tax (Rate) dated 28 June, 2017.
HELD THAT:- As per the work order produced by the applicant, it is clear that the Project Development Service (i.e. Detailed Project Report Service) and Project Management Consultancy services (PMCS) have been provided by the applicant to SUDA (State Urban Development Agency). SUDA has been established as a state level nodal agency, under the department for Urban Employment and Poverty Alleviation by Uttar Pradesh Government. This authority is registered under the 'Registration of Societies Act' since 20th November' 1990. As per the “Memorandum of Association of State Urban Development Agency”, its main objective shall be for “betterment of urban population” through comprehensive approach - SUDA is neither covered in the definition of Central Govt. nor State Govt. Moreover, SUDA is also not covered in Local Authority as the definition of local authority is very specific and means only those bodies which are mentioned as local authorities in clause (69) of section 2 of the CGST Act, 2017.
The applicant has not submitted any relevant document to establish the coverage of services provided by them in particular functions entrusted to a municipality under the twelfth Schedule to Article 243W of the Constitution. The nature of services mentioned in the Work Order dated 16.01.2019 (attached by the applicant in the application of advance ruling on sample basis) i.e. preparation of DPR and Project Management Consultancy are not covered in the functions entrusted to a municipality under Article 243W of the Constitution.
........
|
