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GST - Case Laws
Showing 61 to 80 of 218 Records
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2021 (1) TMI 848 - ALLAHABAD HIGH COURT
Validity of restriction imposed under amended Rule 89(5) of the Central Goods and Services Tax Rules, 2017 vide para 2(i) of the Notification No.21/2018-Central Tax dated 18.4.2018 - ultra vires to the Section 54(3) of the Central Goods and Services Tax Act, 2017 or not - refund claim of the credit availed on input services - HELD THAT:- Since vires of Rule 89(5) of the Central Goods and Services Tax Rules, 2017 and Uttar Pradesh Goods and Services Tax Rules, 2017 has been challenged, let the notices be issued to the Attorney General of India and the Advocate General of the State.
Let the case be listed in the week commencing 8.3.2021 in the additional cause list. When the case is next listed the name of Shri Sanjay Kumar Om be shown as counsel for the respondent no.1.
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2021 (1) TMI 847 - DELHI HIGH COURT
Validity of notice (DRC-3) for reversal of Input Tax Credit - attachment of Bank accounts of petitioner - seeking return of the original documents seized under Section 67(2) of CGST Act - HELD THAT:- This writ petition is dismissed as withdrawn, (i) granting liberty to the petitioner to, on or before 22nd January, 2021 prefer objections under Rule 159(5) supra and directing the Commissioner to dispose of the said objections by an order in writing, on or before 22nd February, 2021; and, (ii) by directing the petitioner to, in response to the summons already issued to the petitioner and mentioned in the short affidavits (two in number) filed by the respondent no.2, along with its objections under Rule 159(5), submit the requisite information/documents, and binding the Managing Director of the petitioner to, appear before the Commissioner in Rule 159(5) proceedings on whatever date is given along with all further information, if any, sought and by clarifying that if the petitioner and/or its Managing Director default, the Commissioner in the order to be passed under Rule 159(5) supra to give particulars thereof along with the dates and directions issued for production of further records/information and communication thereof to the petitioner/its Managing Director.
The respondents cannot have any claim to further overdraft, if any, availed of by the petitioner in the overdraft account with the SBI. We thus deem it apposite to, while disposing of this petition as aforesaid, direct that while the ICICI Bank account and the SBI account with monies therein as on the date of attachment shall continue to be attached till further orders in pursuance to the objections to be filed under Rule 159(5) supra, the petitioner shall be entitled to avail of further overdraft in the SBI account and to withdraw and/or disburse by cheques or otherwise the further overdraft amount so availed of by the petitioner.
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2021 (1) TMI 846 - ALLAHABAD HIGH COURT
Maintainability of petition - availability of alternate remedy of appeal - imposing liability upon the petitioner for payment of service tax along-with interest and penalties - HELD THAT:- Once the efficacious remedy is available to the petitioner then there is no reason or occasion to bypass the statutory provisions.
Consequently, the present writ petition stands disposed of, asking the petitioner to prefer an appeal within one month's time from today. In case, any such appeal is preferred alongwith other statutory requirements, the same would be entertained by the appellate authority in accordance with law, ignoring the delay and latches in the matter.
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2021 (1) TMI 845 - KARNATAKA HIGH COURT
Confiscation of goods and conveyance - Section 130 of the Central Goods and Services Tax Act, 2017 and Section 130 of the Karnataka Goods and Services Tax Act, 2017 read with Section 20 of Integrated Goods and Service Tax Act, 2017 and Section 11 of the GST (Compensation to States) Act, 2017 - HELD THAT:- Taking note of the statement of learned counsel for the respondents that they would abide by the directions as contained in W.P.No.10832/2020, insofar as the procedure for taking forward the proceedings under Sections 129 and 130 are concerned, the present writ petitions could be disposed off in terms of the observations and directions made in W.P.No.10832/2020. The respondents to proceed further and consider the reply made by the petitioner insofar as notice under Section 129 and also with respect to the reply to be submitted to the show cause notice under Section 130. The respondents to also consider the further proceedings under Section 130 after reply is furnished by the petitioner in that regard.
Learned counsel for the petitioner is permitted to seek for incriminatory material by addressing the representation within three days from today and said request to be considered as per law by the respondent - authority. Thereafter, within three days from such date of the respondent sharing information as requested and permissible to be shared, reply to the show cause to be furnished by the petitioner and the respondent - authority to take decision thereafter in terms of the observations made above within a period of one week thereafter.
Petition disposed off.
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2021 (1) TMI 844 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - restaurant service supplied by the Respondent - allegation that the reduction in the rate of tax not passed on by way of commensurate reduction in price - contravention of section 171 of CGST Act - penalty - HELD THAT:- It is revealed from the record that the Respondent is running a restaurant as a franchisee of M/S Subway Systems India Private Limited in Maharashtra and is supplying various food products to customers. It is also revealed from the plain reading of Section 171 (1) of the CGST Act, 2017 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 record that there has been a reduction in the rate of tax from 18% to 5% w.e.f. 15.11.2017, on the restaurant service being supplied by the Respondent, vide Notification No. 46/2017-Central Tax (Rate) dated 14.11.2017 without the benefit of ITC. Therefore, the Respondent is liable to pass on the benefit of tax reduction to his customers in terms of Section 171 (1) of the above Act. It is also apparent that the present investigation has been carried out w.e.f. 15.11 .2017 to 30.06.2019.
It is also evident that the Respondent has been dealing with a total of 137 items during the period from 15.11.2017 to 30.06.2019. The DGAP has reported that the GST rate of 5% has been charged w.e.f. 15.11.2017 however the base prices of 133 products have been increased more than their commensurate prices w.e.f. 15.11.2017 which establishes that because of the increase in the base prices the cum-tax prices paid by the consumers were not fixed commensurately, despite the reduction in the GST rate.
As per the provisions of Sec 171 (1) read with Rule 133 (1) the profiteered amount is determined as ₹ 6,85,531/- as has been computed in Annexure-15 of the DGAP’s Report dated 27.12.2019. Accordingly, the Respondent is directed to reduce his prices commensurately in terms of Rule 133 (3) (a) of the above Rules. Further, since the recipients of the benefit, as determined, are not identifiable, the Respondent is directed to deposit an amount of ₹ 6,85,531/- in two equal parts of ₹ 3,42,766/- each in the Central Consumer Welfare Fund and the Maharashtra State Consumer Welfare Fund as per the provisions of Rule 133 (3) (c) of the CGST Rules 2017, along with interest payable @ 18% to be calculated from the dates on which the above amount was realized by the Respondent from his recipients till the date of its deposit. The above amount of ₹ 6,85,531/- shall be deposited, as specified above, within a period of 3 months from the date of passing of this order failing which it shall be recovered by the concerned CGST/SGST Commissioners.
Penalty - HELD THAT:- The Respondent has denied the benefit of GST rate reduction to the customers of his products w.e.f. 15.11.2017 to 30.06.2019, 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 liable for imposition of penalty under the provisions of the above Section. However, a perusal of the provisions of Section 171 (3A) under which penalty has been prescribed for the above violation 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 15.11.2017 to 30.06.2019 when the Respondent had committed the above violation and hence, the penalty prescribed 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 Respondent.
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2021 (1) TMI 801 - APPELLATE AUTHORITY FOR ADVANCE RULING, RAJASTHAN
Supply of Works Contract - contract entered into with AVVNL as per two work orders combine of supply, erection, testing and commissioning of materials/ equipments for providing rural electricity infrastructure - whether such supply, erection, testing and commissioning of materials/equipments for providing rural electricity infrastructure made to AVVNL would be taxable at the rate of 12% in terms of Sr. no 3 (vi)of Notification N/N. 11/2017- C.T.(Rate) as amended w.e.f. 25.01.2018? - challenge to AAR decision.
HELD THAT:- There is no dispute regarding the ruling of RAJAAR that the supplies rendered by them to AVVNL are in nature of Composite Supply of Works Contract. The only dispute to be decided is whether the said composite supply of works contract is covered under Entry No. 3 (vi)(a) of Notification No. 11/2017-Central Tax(Rate) dated 28.06.2017(as amended) or not. The RAJAAR has concluded that all the conditions prescribed implicitly by Entry No. 3 (vi)(a) of the Notification No.11/ 2017- Central Tax (Rate) dated 28.06.2017, as amended, are satisfied by the applicant except one, viz. that the activity is meant predominantly to be used other than commerce, industry, or any other business or profession - RAJAAR has disallowed the benefit of concessional rate of GST under Entry No. 3 (vi)(a) of Notification No. 11/2017-Central Tax(Rate) dated 28.06.2017(as amended) on the premise that M/s AVVNL is involved in the business of supplying goods hence the work undertaken by the appellant cannot be said to have been used predominantly for use other than for commerce, industry, or any other business or profession. Hence the only dispute remains to be decided before us is whether the work undertaken by the appellant have been used predominantly for use other than for commerce, industry, or any other business or profession.
The work order under the discussion is for providing rural electricity infrastructure under Rajiv Gandhi Grameen Vidhyutikaran Yojana, hence before reaching any conclusion, it would be better to have a look at the objective and scope of RGGVY. From the perusal of ‘Guidelines for Preparation of DPRs under XII Plan of RGGVY’ submitted by the appellant along with written submission during PH and ‘Evaluation Report on RGGVY(PEO Report No. 224 published in May, 2014)’prepared by Planning Commission (now Niti Aayog), both available in public domain, we find that RGGVY was launched with the principal objective of 100% rural village electrification and eventually providing electricity to all households in next five years. Broadly the scheme, at introduction, intended to accelerate rural development, generate employment and eliminate poverty through development in areas of irrigation, small scale industries, KVI industries, cold chains, health care, education and IT and other services. Rural Electrification Corporation Ltd (REC), was the Nodal agency for implementing Rajiv Gandhi Grameen Vidyutikaran Yojana (RGGVY). Under this Yojana, 90% grant is provided by Government of India and 10% as loan by Rural Electrification Corporation (REC) to the State Governments. The RGGVY was launched during 10th five year plan vide Ministry of Power order of 18th March 2005 and continued in 11th plan vide Ministry of Power order of Feb 2008.Under XII plan, only those villages & habitations having population 100 and above are eligible to be covered - the scheme is aimed at electrifying all villages and habitation as per revised definition; providing access to electricity to all rural households; providing electricity connection to Below Poverty Line (BPL) households free of cost of service connection with single light point. However, from the Evaluation Report on RGGVY of Planning “Commission, we note that only the connection was free and the consumption of the electricity by the beneficiaries of the Yojna was chargeable.
Though the beneficiaries of RGGVY are getting free electricity connection but they will have to pay for the consumption of electricity to AVVNL. In other terms, the work being undertaken by the Appellant will ultimately increase the consumer base of AVVNL resulting in more revenue to AVVNL. We find force in the contention of the RAJAAR that M/s AVVNL is involved in supply of electricity to the consumers and are collecting consideration in lieu of the said supply. The ‘Electricity’ as per GST is classified under the category of ‘goods’ and thus M/s AVVNL is supplying goods to consumers and is receiving consideration against the same, hence they are involved in the business of supplying goods. They also receive consideration for the supply of electricity. The predominant activity of M/s. AVVNL is to supply electricity and the civil structure or original work being under taken by the Appellant shall be used for transmission of electricity which is predominant activity of AVVNL and is chargeable - the work undertaken by the applicant in the instant case is an original work which is incidental or meant predominantly for use for commerce, industry, or any other business or profession.
The AVVNL, though a Government Entity, is engaged in the business activity i.e. purchase and sale of electricity. As per the Memorandum of Association of the AVVNL, one of the main objective of formation of AVVNL is to carry on the business of purchasing, selling, importing, exporting, wheeling, system operation, trading of power, including formulation of tariff, billing and collection thereof - thus, the work being undertaken by the Appellant is predominantly used for or incidental to the main activity of AVVNL i.e. transmission (sale) of electricity.
Appeal dismissed.
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2021 (1) TMI 800 - DELHI HIGH COURT
Freezing of and/or provisional attachment of the bank account of the petitioner - father of the petitioner is the Chief Financial Officer (C.F.O.) and the petitioner is not even mentioned as a taxable person within the meaning of Section 2(107) of the CGST Act, 2017 - HELD THAT:- The counsel for the respondent seeks time till Friday, i.e. 22nd January, 2021, to take instructions.
List on 22nd January, 2021.
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2021 (1) TMI 799 - DELHI HIGH COURT
Release of attached Bank Accounts - it is informed that there is an amount of about ₹ 40,000 odd in the bank account which has been frozen but monies are due from the overseas buyers to the petitioner and receipt whereof also is held up owing to the account having been frozen - HELD THAT:- The amount already lying in the account may be ordered to remain frozen in the account and/or be directed to be kept in a fixed deposit and the operation of the account can otherwise be permitted.
We would like to hear the counsels on, whether in pursuance to the order under Section 83 of the Central Goods and Services Tax Act, 2017, the respondents are entitled to any further monies also received in the account beyond the date on which the order of freezing is made.
List for hearing of the petition as well as also on this aspect on 24th February, 2021.
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2021 (1) TMI 798 - PUNJAB & HARYANA HIGH COURT
Attachment of Bank Accounts of petitioner - refund sought for the amount which was got deposited by him without there being any Show Cause Notice or demand - Section 83 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- As per the counsel for the respondents the order itself reveals that it was passed with the consent of the Commissioner. However, this would not be a complete answer because under Rule 159 a person whose property has been provisionally attached can file objections and if the written order of the Commissioner is not communicated to him he would not be in a position to know what are the reasons which the Commissioner had, to arrive at the conclusion that it was in the interest of the Revenue to attach the property. If what is stated by the learned counsel for the respondent is accepted then such a person would never have the benefit of the reasons which weighed with the Commissioner and consequently not be able to file any effective objection - Resultantly, the order of attachment has to go and is consequently set aside. As regards the second plea of refund it is the case of the respondents that the amount was voluntarily deposited by the petitioner and now a Show Cause Notice has been sent demanding more duty.
Reliance placed in the Division Bench Judgment of this Court in Concepts Global Impex Vs. Union of India, [2018 (11) TMI 688 - PUNJAB AND HARYANA HIGH COURT] in that case also there was an identical fact situation where that person had deposited certain amount of money which as per him were taken by coercion but which as per the respondents was deposited voluntarily. However, at the time of deposit, 2 of 3 just like in the present case neither any demand or Show Cause Notice was pending and just like in the present case when that writ petition came up for hearing a Show Cause Notice had already been issued. This Court however directed the refund of the amount after retaining 10% of the duty demanded.
The judgment of the Division Bench of this Court would be binding on this Bench - the prayer for refund also disposed off - application disposed off.
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2021 (1) TMI 797 - GUJARAT HIGH COURT
Provisional attachment of other accounts of petitioner alongwith the cash credit account - Section 83 of GST Act - learned counsel pointed out that the order of provisional attachment is specifically confined to the cash credit account only and not to the other accounts including the fixed deposits - HELD THAT:- As the PAN Card number is common, no sooner the authority concerned instructed the bank to provisionally attached the cash credit account, then the Bank, on its own, freezed all other accounts
The provisional attachment of the cash credit account maintained with the Kotak Bank is not sustainable in law - the order of provisional attachment dated 23rd September 2020 passed in the Form GST DRC - 22 annexed at page : 51A of the writ application, is set aside - application disposed off.
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2021 (1) TMI 796 - BOMBAY HIGH COURT
Validity of prosecution proceedings under GST - fake invoices - It is contended that all cooperation was given by the department to the Petitioners and when even summons was not issued, they rushed to the Court to prevent the officers from exercising their powers. Thus, it is the contentions of the department that there is admission on the part of the Petitioners that fake transactions were shown for aforesaid purpose and inadmissible ITC was availed in respect of fake transactions
HELD THAT:- In the present matters, there are allegations against the Petitioners and Munot that they created record of false invoices for input tax credit and by deceiving the authority they have committed the fraud of amount of more than ₹ 84,00,000/-. There are statements given under section 70 of the Act showing admissions given by concerned like one director of Petitioner's company and one Munot. It is the case of the department that after seizure of record, the company of he Petitioners voluntarily deposited the aforesaid amount and it was not deposited under protest. In Section 135 of the Act, it is provided that the presumption of culpable mental state is available against such persons. In Section 136 of the Act, it is made clear that the statement recorded under section 70 of the Act can be used in proceeding like prosecution as whey would be relevant. Thus, apparently, there is material to make out prima-facie case of fraud against the Petitioners.
The provision of Section 138 of the Act shows that compounding of the offence is possible either before or after institution of prosecution. There are some provisos, which show that in some circumstances the compounding may not be possible. The proviso to Section 138(1) of the Act shows that such compounding shall not affect the proceeding, if any, instituted under any other law and the compounding can be done only after making payment of tax, interest and penalty involved in such offences - In view of the scheme of the Act, this Court has no hesitation to hold that in the cases of present nature, both adjudication and prosecution can be started simultaneously. Further, the aforesaid special provisions shall prevail over the provisions of the Code of Criminal Procedure and it cannot be said that all the provisions of the Code of Criminal Procedure like Sections 154 and 173 of he Code of Criminal Procedure need to be followed for prosecution under the Act. This Court is limiting the scope of discussion only to the extent of the offences committed under the Act and the observations are made only from that angle. If offences under the Indian Penal Code also are committed then different and more serious view can be taken. It needs to be kept in mind that the allegations make out the case of forgery.
In the present matter, admittedly, no summons was issued against the Petitioners though one director gave statement of the nature mentioned and the amount of ₹ 84,00,000/- came to be deposited by the company of the Petitioners.
Even when the matter could have been filed before the regular Court as search and seizure took place in November 2020, the matter came to be filed before the Vacation Court. This circumstance also cannot be ignored. Attempt is made to give explanation that the consultant of the company was infected due to Covid-19 virus. Such submission ordinarily cannot be accepted by the Court. On 11th January, 2021, there was insistence to grant interim relief and adjournment was sought. The interim relief was vacated by this Court by order dated 11th January, 2021. On 14th January, 2021 also, initially an attempt was made by the counsel, who argued the matter that only the Petitioner from Criminal Writ Petition No. 1716 of 2020 had instructed him to argue the matter. When the Court expressed that the Court will dispose of all the matters on merits if the Court finds that admission is not possible, then only argument was advanced in all the matters. Due to all these circumstances, this Court holds that some costs needs to be imposed on the Petitioners.
Petition dismissed.
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2021 (1) TMI 795 - GUJARAT HIGH COURT
Provisional attachment of Bank Accounts of petitioner - Section 83 of Gujarat GST Act - HELD THAT:- During the pendency of any proceedings under Sections 62, 63, 64, 67, 73 and 74, the Commissioner can provisionally attach any property including the bank account belonging to the taxable person. For this purpose, the Commissioner has to form an opinion that it is necessary to do so for protecting the interest of the Government Revenue. These steps have to be taken in such manner as prescribed. Rule 159(1) of the CGST Rules, 2017, deals with the provisional attachment of the property.
The form of the order shows that it is to be addressed to the taxable person. The sections under which the proceedings are launched against such a taxable person are to be referred and then a direction is to be issued for not allowing any debit.
Although the provisions of Section 281B of the Income Tax Act is pari materia to Section 83 of the State GST Act, yet one pertinent feature of Section 281B of the Income Tax Act is that it gives guidelines for making the provisional attachment. Such guidelines are missing so far as Section 83 of the State GST Act is concerned - having regard to the fact that there is hardly a balance of ₹ 22,065/- in the two bank accounts, we see no good reason to continue the provisional attachment.
The impugned order of provisional attachment of the two bank accounts is hereby quashed and set-aside - Application allowed.
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2021 (1) TMI 794 - GUJARAT HIGH COURT
Recovery of dues - blocking the input tax credit available in the credit ledger account of the writ applicant for recovering dues - invocation of Rule 86A of the Central Goods & Service Tax Rules, 2017 - HELD THAT:- Rule 86A can be invoked only if the conditions stipulated therein are fulfilled. In other words, it is only if the Commissioner or an Officer authorized by him has reasons to believe that the credit of input tax available in the electronic credit ledger has been fraudulently availed or is ineligible for the reasons stated in Rule 86A(1)(a) to (d) that the authority would get the jurisdiction to exercise the power under Rule 86A of the Rules - We fail to understand how Rule 86A could have been invoked in the present matter.
The issue, as such, stands squarely covered by three decisions of this High Court, i.e, CHOKSI VERSUS STATE OF GUJARAT [2012 (3) TMI 392 - GUJARAT HIGH COURT], DIFFERENT SOLUTION MARKETING PRIVATE LTD AND 2 VERSUS ASSISTANT COMMISSIONER OF COMMERCIAL TAXES AND 2 [2016 (7) TMI 121 - GUJARAT HIGH COURT] as well as PARAS SHANTILAL SAVLA VERSUS STATE OF GUJARAT [2019 (7) TMI 350 - GUJARAT HIGH COURT] where it was held that Unlike section 179 of the Income-tax Act, 1961, there is no provision in the Sales Tax Act fastening the liability of the company to pay its sales tax dues on its directors.
The respondent No.2 is directed to unblock the input tax credit available in the credit ledger account of the writ applicant at the earliest - application allowed.
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2021 (1) TMI 747 - JHARKHAND HIGH COURT
Permission for withdrawal of petition - Direction to Respondent Authorities to reopen the Form GST TRAN-I and enable the petitioner to file the GST TRAN-1 and transfer the transitional credit into its electronic credit ledger - HELD THAT:- Learned counsel appearing on behalf of the petitioner submits that the grievance of the petitioner in connection with availment of ITC has been redressed by giving due credit to the ITC to the petitioner in the Financial Year 2017-18 ending on 30.06.2017 under the VAT Act and CST Act. Upon this, learned counsel for the petitioner seeks permission to withdraw this writ petition.
This writ petition is dismissed as withdrawn.
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2021 (1) TMI 746 - PUNJAB AND HARYANA HIGH COURT
Seeking a direction to the respondent to supply copies of summons issued, arrest memo with regard to the husband of the petitioner and panchnama drawn during search at office premises - HELD THAT:- The instant petition has been preferred by the wife of the accused, Ankur Garg. Learned counsel has not been able to tender any explanation as to why husband of the petitioner has not come forward for the redressal of his grievance. The petitioner, being spouse of the accused, cannot be said to have any locus standi, while approaching this Court by way of the instant petition.
Petition dismissed.
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2021 (1) TMI 705 - ALLAHABAD HIGH COURT
Seeking Restoration of Cancelled GST registration of petitioner - contention is that there can be no manual restoration of the GST registration and, therefore, the writ petitioner is liable to be dismissed - HELD THAT:- The contention that there is no provision of restoration of a GST registration, once it has been cancelled borders on the absurd. In case, no provision for its restoration has been made in the software, the same is not the fault of the petitioner and it is for the department and the respondents to make provisions for the same in the software and on the GST Portal. Merely because such provision has not been made, the petitioner cannot be made to suffer and non compliance of an appellate order, passed by a competent appellate authority cannot be accepted or permitted on the plea raised in the counter affidavit or during the course of arguments.
The respondents are directed to restore petitioner's GST registration on the GST Portal, forthwith not later than ten days from the date a copy of this order is filed before them - Petition allowed.
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2021 (1) TMI 704 - BOMBAY HIGH COURT
Levy of service tax - reverse charge mechanism - provision for recovering service tax from the service recipient - HELD THAT:- Central Government has issued several exemption notifications whereby services provided by an individual as an advocate or as a partnership frm of advocates by way of legal services are exempt from the charge of service tax. That apart, there is a provision for recovering service tax from the service recipient. Ignoring the above, the impugned show cause cum demand notice has been issued mechanically.
We direct as an interim measure, there shall be stay of the impugned show cause cum demand notice dated 28.12.2020 until further orders.
Stand over to 15.03.2021.
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2021 (1) TMI 703 - PATNA HIGH COURT
Liability of Interest on delayed payment of GST on credit balance of ITC - Scope of Amendment - The present proceedings taking on record the averments made by the deponent, part of which are reproduced as under:
- That post issuance of Notification-no-63/2020 dated 25th August 2020 by the central government a press release was issued by Ministry of Finance, Govt of India on 26.08.2020 wherein it was clarified that amendment in section 50(1) has been made effective prospectively w.e.f. 01.09-2020 due to certain technical limitations, however for present no recoveries for interest charged on gross liability will be recovered for the past period as well by the central and state tax administration.
- That in the light of aforesaid submissions, it is stated that no recovery will be made for interest charged on delayed payment of tax which has been made by the taxpayer debiting the credit ledger.
- That however, in terms of amended section - 50 (1), it is prayed before the Hon'ble court that the taxpayer may be directed to pay the interest on delayed payment of tax which has been made by debiting the cash ledger that is on net liability.
Petition disposed off
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2021 (1) TMI 702 - DELHI HIGH COURT
Validity of action of search carried out at the Petitioner’s business premises - Section 67 of the Delhi Goods and Services Tax Act, 2017 (DGST Act) read with Rule 139 of the DGST Rules, 2017 - another search action in relation to the same period, despite the Petitioner being earlier subjected to search action at the hands of the Central Authorities - HELD THAT:- If an officer of the Central GST initiates intelligence- based enforcement action against a taxpayer administratively assigned to State GST, the officers of the former would not transfer the said case to their counterparts in the latter department and they would themselves take the case to its logical conclusion. At this stage, we are only concerned with the search action initiated and the ultimate logical conclusion would have to be gone into at the appropriate stage, when the Revenue proceeds for determination of tax. The Respondents would be bound by the aforenoted circulars and we reiterate that in case the action of the State and Central Authorities is overlapping, the Petitioner would be at liberty to take action to impugn the same in accordance with law.
Absence of the two independent witnesses - HELD THAT:- There is no panchnama on record. In essence, the main thrust of Petitioner’s argument is that the statement of Mr. Rajeev Gupta does not record the presence of the two independent witnesses or signatures, making the search action illegal. We have already dealt with the contention of the Petitioner regarding the alleged involuntary/forced statement and in view of our observations made hereinabove, this issue, is rendered insignificant. Further, no specific provision is shown to us that deals with recording of statement in search action. The only relevant section is Section 70, which does not entail signatures of witnesses. Be that as it may, determination of tax liability, has to be in accordance within the confines of statutory provisions of the GST laws. We reiterate that the evidentiary value of the aforenoted statement, and the effect of payment of tax and interest made pursuant thereto, are issues which would have to be gone into at the stage of adjudication.
There are no merit in the contention of the Petitioner that absence of the signature of the authorised person on Form GST INS-01 would render the search action to be non-est. Mr. Babbar does not dispute that the persons who carried out the search were indeed those whose names has been mentioned in the said authorisation, and they had displayed their identity cards at the time of search. It is also not the case of the Petitioner that the officers who carried out the search did not properly discharge their official duty or otherwise acted in furtherance of some extraneous purpose. The absence of signatures does not manifest an absence of delegation of power in favour of the team which conducted the search action. Further, the provisions of DVAT Act quoted in the documents also cannot render the proceedings as illegal. The erstwhile Act is saved by the repeal and saving provisions of the DGST Act, 2017.
Reasons to believe to inspect and search the premises of the Petitioner - HELD THAT:- The Courts can interfere and hold the exercise of power to be bad in law only if the grounds on which reason to believe is founded have no rational connection between the information or material recorded; or are non-existent; or are such on which no reasonable person can come to that belief. The reasons to believe shown to us demonstrate that the Appropriate authority had the reasons, as per mandate of Section 67(2) of the DGST Act alongwith relevant Rules, for formation of belief to carry out the search. Applying the test of reasonable man, we cannot say that there is no application of mind while issuing search warrant.
Applying the test of reasonable man, we cannot say that there is no application of mind while issuing search warrant. Thus, we would not like to countermand the action taken against the Petitioner - Petition disposed off.
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2021 (1) TMI 701 - JHARKHAND HIGH COURT
Refund of unutilized Input Tax Credit pertaining to compensation cess - Levy of compensation cess on imported Coal by virtue of Reverse Charge Mechanism - Allegation that procedure prescribed for availment of refund, not followed - petitioner stated that if the said resolution comments had been communicated to the petitioner, the petitioner would have followed the said procedure and would have re-submitted its application for refund - financial year 2017-18 and 2018-19 - HELD THAT:- Admittedly, neither the date of communication of resolution comments nor the mode of communication of the resolution comments is mentioned in the counter affidavit although a specific plea was raised by the petitioner in the writ petition that the petitioner did not receive any response to the complaint in help-desk of GSTN portal on 04.03.2019 for which the petitioner was allotted ticket no. 201903045258658 and also to the representation dated 14.03.2019 (Annexure-10) and subsequent communications. There is no dispute that the last date for submission of refund application was 31.03.2019 and as per para 8 of the counter-affidavit filed by the Respondent nos. 1 to 4, the ticket allotted to the petitioner was closed on 25.03.2019 with the aforesaid resolution comments quoted in the said counter affidavit.
This court is of the considered view that mere resolution comment is not sufficient, it was also required to be communicated to the petitioner so that the petitioner could have complied with the directions issued in the resolution comments in order to claim its refund. It is not in dispute that if the petitioner could adhere to the directions mentioned in the resolution comment, the petitioner could have filed the application for refund of compensation cess for the periods involved in this case i.e 2017-18 and also for 2018-19.
This court is of the considered view that the petitioner cannot be made to suffer on account of laches on the part of the respondents in not communicating the resolution comment to the petitioner and accordingly this is a fit case for exercise of power under Article 226 of the Constitution of India for the redressal of the grievance of the petitioner which the petitioner has suffered due to non-communication of the resolution comment.
Whether the respondents, having made a resolution comment in connection with complaint in help-desk of GSTN portal on 04.03.2019 (for which the petitioner was allocated ticket no. 201903045258658) asking the petitioner to apply afresh, can the petitioner be deprived of such opportunity to apply afresh by not communicating the resolution comment to the petitioner? - HELD THAT:- The said resolution was not communicated to the petitioner and accordingly this court has already held above that the petitioner cannot suffer due to non-communication of the resolution comment. Further the relief which can be given to the petitioner is that the petitioner be granted some time to adhere to the directions mentioned in the resolution comment which has been communicated to the petitioner for the first time only through the counter affidavit filed by the Respondent nos. 1 to 4 and there is no question of giving any relaxation to the procedure required under law to file application for refund of compensation cess for the periods involved in the present case considering the legal position that Input Tax Credit (ITC) is a form of concession and whenever concession is given by statute or notification, the conditions thereof are to be strictly complied in order to avail such concession.
This Court finds that the Hon'ble Bombay High Court in the judgement reported in NELCO LIMITED VERSUS THE UNION OF INDIA, THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, THE STATE OF MAHARASHTRA, THE GOODS AND SERVICES TAX COUNCIL, THE COMMISSIONER OF STATE TAX [2020 (3) TMI 1087 - BOMBAY HIGH COURT] had entertained the plea of the petitioner regarding no response to communication regarding grievance of the petitioner, but the same was rejected considering the peculiar facts of the case. There is no doubt that the validity of Rule 117 of the Rules has been upheld and the resolution of technical difficulty by granting further concession as per Rule 117(1A) was also considered and clearly held that no direction could be issued to the respondents in the facts of the said case to treat the case of the petitioner as falling within the ambit of Rule 117 (1A) as the existence of technical difficulty was not found when logged on to the common portal and this was also communicated to the petitioner - The said judgement also does not apply to the present case particularly in view of the fact that the grievance raised by the petitioner was duly considered and responded to by the department favorably, but the same was never communicated to the petitioner.
In the present case, the validity of Rule 117 of Central Goods and Services Tax Rules is not under challenge and the entire case rests on the prejudice caused to the petitioner due to non- communication of resolution comment to the petitioner - As a cumulative effect of the aforesaid findings of non- communication of resolution comment to the petitioner, which has been communicated to the petitioner for the first time through the counter affidavit filed by the respondent no. 4, the petitioner is held to be entitled to take steps in compliance of the directions contained in the resolution comment quoted above. Consequently, the respondents are directed either to open GSTN portal enabling the petitioner to file its application for refund in GST RFD-01 or to manually accept the application for refund of the petitioner pertaining to the period 2017-18 and 2018-19 in respect of its claim for refund of unutilized Input Tax Credit pertaining to compensation cess within a period of one month from the date of communication of this judgement. The respondents are directed to communicate the petitioner through e-mail as to whether they would open the GSTN portal or would accept the refund applications manually and upon such communication, the petitioner will be entitled to avail of the opportunity to file applications for refund of compensation cess for the financial years 2017-18 and 2018-19 within a period of 15 days from such communication.
Petition allowed.
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