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GST - Case Laws
Showing 121 to 140 of 154 Records
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2021 (11) TMI 271 - PUNJAB AND HARYANA HIGH COURT
Permission for withdrawal of petition - Validity of initiation of recovery proceedings - HELD THAT:- Allowed as prayed for.
The petition stands dismissed as withdrawn with the aforesaid liberty asked for.
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2021 (11) TMI 270 - MADRAS HIGH COURT
Principles of natural justice - Validity of assessment orders - reply of petitioner not considered properly - HELD THAT:- Since there has been an appellate remedy provided under Section 107 of the Act, which can very well be availed by the petitioner as the same has been mentioned in the impugned order itself, as there is no plausible reason on the part of the petitioner for not availing such an appeal remedy, but the petitioner has filed the writ petitions by invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
It is the settled proposition that if want of jurisdiction, violation of the statute and denial of principles of natural justice, only in such circumstances, the Writ Petition would be entertained by this Court against order in original ie., the orders passed by the original assessing authority - In every Tax Statute, there is hierarchy of authorities provided for preferring further appeal, revisions etc. Such appeal remedies shall be availed by the assesses/taxpayers without default.
Herein the case in hand, though there is an appeal remedy under Section 107 of the Act, the petitioner has chosen to file the Writ Petitions before this Court on the ground that the reason stated in the reply or objection or show cause by the petitioner had not been properly considered or not considered in a proper perspective. Such an issue can very well be decided by the appellate authority as it coupled with facts and therefore, each and every minute details of the facts on tax matters cannot be gone into by the Writ Court. In that view of the matter, this Court feels that while rejecting these Writ Petitions, liberty can be given to the petitioner to file an appeal before the appellate authority as per the provisions of the Act.
All these Writ Petitions are rejected with liberty to the petitioner to file an appeal before the appellate authority and if any such appeal is filed, the time taken or consumed by the petitioner in filing these writ petitions can be excluded for calculating the limitation period - Petition dismissed.
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2021 (11) TMI 269 - MADRAS HIGH COURT
Cancellation of registration of petitioner - opportunity of being heard not provided - principles of natural justice - HELD THAT:- As the sanctity of a personal hearing before cancellation registration has been ingrained in first proviso to Section 29(2)(a), it is only appropriate that the writ petitioner is given a personal hearing.
The II impugned order is set aside without expressing any opinion on the merits of the matter. To be noted, when this Court says I impugned order, it necessarily means impugned order wherein the quantum of ₹ 49,98,868/- has been scaled down to ₹ 24,75,183/- - application disposed off.
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2021 (11) TMI 268 - AUTHORITY FOR ADVANCE RULING, TELANGANA
Applicability of reduced GST rate vide Notification No.20/2017, dated: 22-08-2017 as well Notification No.1/2018-CT(Rate), dated: 25-01-2018 from 01-07-2017 -works rendered by the constituents of the Joint Venture - to be treated as sub-contract to Joint Venture, which is not having physical existence other than the constituents? - HELD THAT:- As seen from the information provided by the DGGI the investigation proceedings are still pending under Chapter XIV of the CGST Act, 2017 with respect to the questions raised by the applicant. When seen in light of the amendment to Section 83(1), the pending investigation after inspection or search have to be interpreted as pending proceedings in light of rules of interpretation and law declared by the Hon’ble Supreme Court of India in Raghubansh Narain Vs Govt. of UP [1966 (9) TMI 145 - SUPREME COURT].
Thus as the proceedings are pending under Chapter-XIV of the CGST Act, 2017 regarding the question raised by the applicant, the application filed by M/s. Megha Engineering & Infrastructures Limited stands rejected.
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2021 (11) TMI 267 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Exemption from GST or not - services provided to Samaj Kalyan Department, State Government of Maharashtra (Social Welfare Department) for residential accommodation of underprivileged girls - requirement of registration under GST - section 97 (b) of CGST Act, 2017 - Requirement of deduction of TDS u/s 51 - refund entitlement, if TDS is deducted - HELD THAT:- The applicant has submitted that the total amount received by her along with Mr. Sagar Borade, co-ownor in the property, per annum is ₹ 31.13 lakhs to be distributed between both of them in the ratio 50:50. Thus, the amount received by the applicant is below the threshold amount above which liability to pay GST accrues. It is seen from the submissions that there is an overlapping of Plot Numbers in respect of five co-owners for example applicant has mentioned that Plot nos. 2 & 3, belongs to her along with Mr. Sagar Borade. However, it is seen that the said Plot No. 3 belong to other co-owners also. The applicant has not made any detailed submissions stating the actual percentage of the owner/co-owners in the said property. Said submissions made by the applicant is not addressed, in support of being below threshold GST turnover limit due to non-submission of details.
Admissibility of entry no. (3) of Notification No. 12/2017-CTR - HELD THAT:- Schedule II of the CGST Act, 2017 sets out the activities which are to be treated as supply of goods or supply of service wherein “renting of immovable property” is treated as supply of service - in the instant case, the supply of leasing of immovable properties by the applicant is a supply of services - Though the applicant as per her submission is supplying Pure Services, in light of insufficient material on record, it is not possible to find whether the said services are supplied by the applicant by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243W of the Constitution.
The renting of immovable property services by the applicant is not liable for exemption under the provisions of Entry No. (3) Of Notification No. 12/2017-CT(R) dated 28.06.2017.
Whether TDS provisions will be applicable in case where the supply of services is exempt? - HELD THAT:- The impugned services supplied by the applicant are liable to tax and therefore not exempt. Thus the TDS provisions under the relevant section 51 of the GST Act are applicable in the subject case.
As the Applicant is not registered under GST and provide services to Social Welfare Department (Samaj Kalyan Department), a Department of State Government, then whether TDS notification issued under section 51 would be applicable for deduction of TDS? - HELD THAT:- TDS notification issued under section 51 would be applicable for deduction of TDS in the subject case.
In case TDS is deducted, whether applicant would be entitled for refund of the same? - HELD THAT:- The said question pertains to entitlement of refund and is not covered under Section 97 of the CGST Act, 2017 and therefore this question is not answered.
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2021 (11) TMI 266 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Levy of GST on Resident Welfare Association (RWA) - monthly subscription contribution charged from its members - requirement for surrender of GST registration or not - ITC on GST on capital goods (generators, water pumps, lawn furniture etc.), goods (taps, pipes, other sanitary and hardware fittings etc.) and input services such as repair and maintenance services - whether the society can claim ITC on these services either fully or proportionately despite of availing exemption available to residential units?
Scope of Advance Ruling application - the applicant is covered under Section 97(2) of the CGST Act, 2017 or not - HELD THAT:- In the instant case, the question which has been raised by the applicant is not pertaining to any of the matters mentioned in Section 97 (2) of the CGST Act. In other words, Section 97(2), which encompasses the questions, for the ruling by this Authority does not deal with the issue of whether a GST registration should be surrendered. Hence, it is held that this authority does not have jurisdiction to pass any ruling on such matters - the question posed does not pertain to matter in respect of which an Advance Ruling can be sought under the GST Act. In view thereof, the first question is not maintainable.
Whether the society can claim ITC on repairs both major as well as minor? - HELD THAT:- Input tax credit generally is not available for construction, reconstruction, renovation, addition, alteration or repair of an immovable property even when such goods or services or both are used in course or furtherance of business. However, the limitation in such a situation is to extent of capitalization. The activity of repair and maintenance which encompasses supply of goods for a construction activity is of immovable nature. The provisions of ITC for the said supply of goods is covered under Section 17(5)(d) read with explanation mentioned therein. Therefore, ITC on GST paid on such goods as mentioned above will not be available to the extent of capitalisation on account of construction service in respect of the concerned immovable property as mentioned in Explanation of Section 17(5) of the CGST Act, 2017.
The supply of goods and services supplied for construction work of an immovable nature can be done in composite manner also i.e. works contract. The works contract service for supply of above mentioned goods and service is covered under Section 17(5)(c) read with explanation mentioned therein. Therefore, ITC on GST paid on above said works contract service will not be available to the extent of capitalisation as mentioned in Explanation of Section 17(5) of the CGST Act, 2017.
Whether the society can claim ITC on these services either fully or proportionately despite of availing exemption available to residential units? - HELD THAT:- The provisions of Section 17 (2) will be applicable in the present case in as much as when goods or services or both are used by the applicant partly for effecting taxable supplies under the GST Act and partly for effecting exempt supplies under the said Acts, the amount of credit shall be restricted to so much of the input tax as is attributable to the said taxable supplies.
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2021 (11) TMI 265 - AUTHORITY FOR ADVANCE RULING, TELANGANA
Classification of supply and services - Locomotive parts - supply of multiple items, some of these items are manufactured by the applicant and some of them are procured for supply to the coach factory - supply of goods or works contract services - composite supply or mixed supply or normal individual supply? - contract with Krishna Bhagya Jala Nigam Limited for Design, manufacturing, supply, installation, operation and maintenance of Phase-II of SCADA and GIS based automation, for NLBC, SBC, JBC, MBC & IBC canal network systems including maintenance of the system for 5 years after commissioning of the scheme on turnkey basis - naturally bundled services or not.
HELD THAT:- The Hon'ble Supreme court of India in a catena of case law has ruled that illustrations in a statute are part of the statute and help to elucidate the principle of the Section. Therefore a composite supply should be similar to a supply mentioned in the illustration to the definition in Section 2(30), where two or more taxable goods or services are supplied along with each other to constitute a composite supply - the supply made by the applicant against the purchase order of the Integrated Coach Factory is a mixed supply and the rate of tax applicable is the highest rate of tax applicable to the particular goods constituting the mixed supply.
Applying principle of Noscitur a sociis it is seen from the purchase order none of the goods supply fall under this entry. They are also not essential component without which the whole cannot function. Therefore the supplies made under the referred purchase order to Integrated Coach Factory, Chennai do not fall under entry 8607.
Contract with Krishna Bhagya Jala Nigam Limited, Narayanpur Division, Hunasagi Taluk, Yadgir District in the State of Karnataka - HELD THAT:- The applicant has entered into a contract with Krishna Bhagya Jala Nigam Limited, Narayanpur Division, Hunasagi Taluk, Yadgir District in the State of Karnataka. Whereas the application is dated.28-05-2018 the contract is much later to the application i.e., 12-10-2018. Further the place of supply falls outside the State of Telangana and hence this authority cannot decide the matter.
Request for clarification as to whether the scope of work can be treated as supply of goods or works contract services and also request for the applicable rate of tax for the same - HELD THAT:- The clarification can’t be issued on supplies made in Karnataka.
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2021 (11) TMI 241 - ALLAHABAD HIGH COURT
Principles of natural justice - Cancellation of registration of the petitioner - Section 29 of the U.P. GST Act, 2017 - contention of petitioner is that the SCN reveals no details as to whether any survey had actually taken place or not and that what was the date and time fixed for personal hearing - HELD THAT:- Rule 21 of the U.P. GST Rules, 2017 provides that the registration granted to a person is liable to be cancelled, if the said person; (a) does not conduct any business from the declared place of business; or (b) issues invoice or bill without supply of goods or services in violation of the provisions of the Act, or the rules made thereunder; or (c) violates the provisions of section 171 of the Act or the rules made thereunder.
A bare perusal of the show cause notice format prescribed under Rule 22(1) shows that there is a difference in the show cause notice dated 12.5.2021 issued to the petitioner and in the form of the show cause notice quoted aforesaid. The specific date and time is necessarily required to be mentioned in the notice for showing cause which is conspicuous by its absence in the notice to the petitioner. Moreover, the proviso to subsection (2) of Section 29 mandates opportunity of hearing being provided to the person whose registration is proposed to be cancelled before cancelling the registration - the denial of opportunity of hearing to the petitioner as is mandated in the first proviso to sub-section (2) of Section 29 of the Act of 2017 vitiates the proceedings as well as the orders cancelling the registration of the petitioner.
The provisions of sub-section (1) of Section 29 would come into play where (a) the business has been discontinued, transferred fully for any reason including death of the proprietor, amalgamated with other legal entity, demerged or otherwise disposed of; or (b) there is any change in the constitution of the business; or (c) the taxable person, other than the person registered under sub-section (3) of section 25, is no longer liable to be registered under section 22 or section 24. The learned Standing Counsel has not been able to demonstrate that the case of the petitioner is liable to be covered under any of the three clauses as aforesaid - Sub- Section (1) of Section 29 would come into play only in the given set of circumstances that are mentioned in sub-section (1) and for no other reasons.
The order of cancellation of registration dated 28.5.2021 as well as order passed in the appeal dated 17.7.2021 are quashed - Petition allowed.
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2021 (11) TMI 232 - ORISSA HIGH COURT
Legal right of the petitioner on account of the Taxes being shared and borne by the petitioner on post enactment goods and Service Tax Act, 2017 - infringement of GST Act, 2017 - restitution of benefit of GST to the petitioner - direction to prepare a fresh schedule of rates considering rapidly change of rate and price - calculation of differential amount of GST on the contract in which estimate was prepared under VAT - HELD THAT:- On perusal of the judgment delivered by this Court in M/S. HARISH CHANDRA MAJHI VERSUS STATE OF ODISHA & OTHERS [2021 (6) TMI 381 - ORISSA HIGH COURT], the Court finds that the Court has dealt with a large number of grounds which are more or less similar to the points urged in the present petition - it was held in the case that The statute should clearly and unambiguously convey three components of the tax law i.e., the subject of the tax, the person who is liable to pay the tax and the rate at which the tax is to be paid. In the instant case, three components of the tax, i.e., subject of tax, person liable to pay the tax and rate of tax has been clearly defined in the statute. The OM dated 10th December, 2018 only prescribes the manner/procedure of calculation to determine the amount of tax in a particular eventuality in the transitional period of migration to GST Act with effect from 1st July, 2017.
The Court is not satisfied that any new ground has been made out requiring the Court to revisit its judgment in Harish Chandra Majhi. Consequently, the Court is not inclined to interfere in the impugned petition. It is dismissed for the reasons already stated in Harish Chandra Majhi.
Petition dismissed.
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2021 (11) TMI 231 - ALLAHABAD HIGH COURT
Levy of tax and penalty - seizure of goods alongwith vehicle - Evasion of tax - HELD THAT:- With regard to interim relief, the learned counsel for the petitioner contends that the finding recorded in the original order cannot be sustained inasmuch as the e-way bill that was generated was in terms of sub-rule (10) of Rule 138 of the GST Rules and the e-way bill was valid at the time of interception. It is contended that, therefore, since the goods are perishable in nature therefore, under Rule 140 of the GST Rules after obtaining the security, the goods may be released.
It is provided that in case the petitioner pays the amount in terms of Rule 141 of the CGST Rules, 2017 to the authorities concerned, the goods shall be released forthwith.
Application disposed off.
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2021 (11) TMI 230 - GAUHATI HIGH COURT
Utilization of ITC from dubious firms - bill trading and passing on fake ITC without movement of actual goods - HELD THAT:- The Form GST DRC-01 issued against the petitioner by the respondent authorities on the premises that in the investigation the petitioner had not satisfied the authorities as regards the ITC they had relied upon and therefore, the authorities had arrived at a view that they had relied upon some dubious ITC for the purpose. As it is apparent that the said view was formed as because the petitioner had not provided appropriate material and document at the time of the investigation and therefore, such Form GST DRC-01 was issued, we are of the view that ends of justice would be met if an opportunity is given to the petitioner tax payer to appear before the respondent Joint Commissioner of State Taxes, Guwahati with all relevant materials that he may desire to rely upon and satisfy the authorities in their investigation pursuant to the earlier summons dated 10.09.2021.
The reasoned order to be passed shall prevail and till such reasoned order is passed, the Form GST DRC-01 both dated 08.10.2021 shall be kept in abeyance. In the event, the reasoned order goes in favour of the petitioner it has to be understood that the said Form of GST DRC-01 will no longer remain effective and in the event it is against the petitioner, a fresh Form GST DRC-01 may be issued and in doing so adequate time required under the law shall be given to the petitioner before taking any action.
Petition disposed off.
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2021 (11) TMI 229 - PUNJAB AND HARYANA HIGH COURT
Refund of CGST & SGST wrongly paid - Interpretation of the term “subsequently held” u/s 77 of the CGST Act, 2017 - period i.e. from April 2018 to December 2018 - HELD THAT:- Doubts have been raised regarding the interpretation of the term “subsequently held” in the aforementioned sections, and whether refund claim under the said sections is available only if supply made by a taxpayer as inter-State or intra-State, is subsequently held by tax officers as intra-State and inter-State respectively, either on scrutiny/ assessment/ audit/ investigation, or as a result of any adjudication, appellate or any other proceeding or whether the refund under the said sections is also available when the inter-State or intra-State supply made by a taxpayer, is subsequently found by taxpayer himself as intra-State and inter-State respectively.
It is clarified that the term “subsequently held” in section 77 of CGST Act, 2017 or under section 19 of IGST Act, 2017 covers both the cases where the inter-State or intra-State supply made by a taxpayer, is either subsequently found by taxpayer himself as intra-State or interState respectively or where the inter-State or intra-State supply made by a taxpayer is subsequently found/ held as intra-State or inter-State respectively by the tax officer in any proceeding. Accordingly, refund claim under the said sections can be claimed by the taxpayer in both the above mentioned situations, provided the taxpayer pays the required amount of tax in the correct head.
In normal case this may have been an appropriate order to pass but in the present case it cannot be lost sight of that there is no dispute about the amount of tax, rather it was on the requirement of the respondents that the petitioner paid an additional amount of ₹ 108 crores approximately - respondents are directed to fund ₹ 108 crores approximately which was deposited earlier by the petitioner towards CGST and SGST along with applicable interest within a period of one month - Petition allowed.
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2021 (11) TMI 228 - KERALA HIGH COURT
Levy of penalty u/s 74 (1) of the CGST Act - Validity of assessment order - suppression of turnover and evasion of tax - HELD THAT:- The remedy under Article 226 cannot be invoked by the petitioner. It is noticed from a reading of paragraph 37 of Ext.P9 that the very same contentions, now raised by the petitioner before this Court, was raised by the petitioner before the assessing officer also. Adverting to the said contentions, it was held by the assessing officer that the allegations raised against the period and the date to which the data relates have no basis. It was also observed by the assessing officer that in the mahazar prepared on 26.11.2019, it was specifically mentioned that the data related to the business transactions of the dealer for the period 14.01.2013 to 01.09.2019 and the dealer signed it without any objection. On an appreciation of the findings recorded by the assessing officer, this Court is of the view that the contentions raised by the petitioner alleging violation of natural justice was in fact raised before the assessing authority itself and even considered.
The learned counsel for the petitioner also submitted that Ext.P10 is challenged in the writ petition and that there is no appellate remedy available against Ext.P10. Though this Court was impressed with the said contention initially, on an appreciation of the reliefs claimed in this writ petition, it is noticed that no specific relief is claimed in the writ petition against Ext.P10.
As held by the Supreme Court repeatedly including in the latest decision of THE ASSISTANT COMMISSIONER OF STATE TAX AND OTHERS VERSUS M/S COMMERCIAL STEEL LIMITED [2021 (9) TMI 480 - SUPREME COURT] where an alternate remedy exists under the statute, unless exceptional circumstances exists, the jurisdiction of this Court under Article 226 is not liable to be invoked - petition dismissed.
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2021 (11) TMI 227 - MADRAS HIGH COURT
Classification of goods - Fish Meal in powdered form - covered under entry 2301 & 2309 or not - Scope of clarification / circular issued by the board (CBIC) - exemption under Sl.No.102 of Exemption Notification No.1/17 or N/N. 2/17 - HELD THAT:- After the GST regime, which came into effect from 01.07.2017, the Customs Tariff Act, 1975 classification selectively has been adopted by the GST regime. Therefore, few days prior to the implementation of the GST regime, these two notifications, namely, Notification No.1/17 and Notification No.2/17, were issued by the Central Government, of course, by exercising their powers under Sections 9(1) and 11(1) of the CGST Act, respectively.
It may be either under 2301 or may be under entry 2309. In both way, the fish meal is explicitly provided under exemption category.
Merely because such a finished product of fish meal produced by the petitioners' industries are being utilised also for the purpose of further manufacturing of further animal feed or poultry feed, by that reason itself, it cannot be stated that, it is only a raw material and not a finished product - The Central Government while giving Exemption Notification No.2/17, though originally included only Entry Nos. 2302, 2304, 2305, 2306, 2308 & 2309, subsequently, issued a corrigendum that entry 2302 should be read as 2301 & 2302. Therefore, 2301 also is included.
Section 168(1) makes it clear that, only for the purpose of uniformity in the implementation of the Act, orders or directions to the Central Tax Officers, as deem fit, may be issued by the Board. Therefore, most probably, such kind of orders, instructions or directions must be procedural in nature, not substantive in nature - The exemption provided by the Central Government by exercising its powers either under Section 11(1) of CGST Act, 2017 or under Section 6(1) of IGST Act, 2017 are the substantive right provided to the stake-holders by giving such exemption. Therefore, such kind of exemptions cannot be taken away or done away by issuing clarificatory Circulars by the Board, in exercise of its powers under Section 168 of the CGST Act, 2017.
This Court feels that the impugned Circular insofar as Clause (ii) of the same, namely, fish meal and other raw materials used for making cattle / poultry / aquatic feed is concerned, is unsustainable and therefore, insofar as the said product is concerned, whatever the clarification issued in the impugned Circular dated 31.12.2018 is set aside - Petition allowed.
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2021 (11) TMI 226 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Exemption from GST or not - services provided to Samaj Kalyan Department, State Government of Maharashtra (Social Welfare Department) for residential accommodation of underprivileged girls - applicability of TDS provisions in case where the supply of services is exempt - Applicant is not registered under GST and provide services to Social Welfare Department (Soma] Kalyan Department), a Department of State Government - entitlement to refund if TDS is deducted.
Whether the services provided by the applicant to Samaj Kalyan Department, State Government of Maharashtra (Social Welfare Department) for residential accommodation of underprivileged girls is exempt from GST? - HELD THAT:- Even though the applicant as per her submission is supplying Pure Services, in light of insufficient material on record, it is not possible to find whether the said services are supplied by the applicant by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243W of the Constitution - The renting of immovable property services by the applicant is not liable for exemption under the provisions of Entry No. (3) Of Notification No. 12/2017-CT(R) dated 28.06.2017.
Whether TDS provisions will be applicable in case where the supply of services is exempt? - HELD THAT:- The impugned services supplied by the applicant are liable to tax and therefore not exempt. Thus the TDS provisions under the relevant section 51 of the GST Act are applicable in the subject case.
As the Applicant is not registered under GST and provide services to Social Welfare Department (Samaj Kalyan Department), a Department of State Government, then whether TDS notification issued under section 51 would be applicable for deduction of TDS? - HELD THAT:- TDS notification issued under section 51 would be applicable for deduction of TDS in the subject case.
In case TDS is deducted, whether applicant would be entitled for refund of the same? - HELD THAT:- The said question pertains to entitlement of refund and is not covered under Section 97 of the CGST Act, 2017 and therefore we refrain from answering this question.
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2021 (11) TMI 225 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Exemption from GST or not - services provided to Samaj Kalyan Department, State Government of Maharashtra (Social Welfare Department) for residential accommodation of underprivileged girls - applicability of TDS provisions in case where the supply of services is exempt - Applicant is not registered under GST and provide services to Social Welfare Department (Soma] Kalyan Department), a Department of State Government - entitlement to refund if TDS is deducted.
Whether the services provided by the applicant to Samaj Kalyan Department, State Government of Maharashtra (Social Welfare Department) for residential accommodation of underprivileged girls is exempt from GST? - HELD THAT:- Even though the applicant as per her submission is supplying Pure Services, in light of insufficient material on record, it is not possible to find whether the said services are supplied by the applicant by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243W of the Constitution - The renting of immovable property services by the applicant is not liable for exemption under the provisions of Entry No. (3) Of Notification No. 12/2017-CT(R) dated 28.06.2017.
Whether TDS provisions will be applicable in case where the supply of services is exempt? - HELD THAT:- The impugned services supplied by the applicant are liable to tax and therefore not exempt. Thus the TDS provisions under the relevant section 51 of the GST Act are applicable in the subject case.
As the Applicant is not registered under GST and provide services to Social Welfare Department (Samaj Kalyan Department), a Department of State Government, then whether TDS notification issued under section 51 would be applicable for deduction of TDS? - HELD THAT:- TDS notification issued under section 51 would be applicable for deduction of TDS in the subject case.
In case TDS is deducted, whether applicant would be entitled for refund of the same? - HELD THAT:- The said question pertains to entitlement of refund and is not covered under Section 97 of the CGST Act, 2017 and therefore we refrain from answering this question.
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2021 (11) TMI 158 - PUNJAB AND HARYANA HIGH COURT
Seeking grant of Regular Bail - cheating and forgery - fraudulent and bogus transactions - bogus firms - HELD THAT:- The evidence collected during the course of investigation certainly points towards the complicity of the petitioners, particularly the fact that bogus firms have been registered while furnishing e-mail ID and phone numbers of the accused. Still further, in various of the firms, it is Rajesh Mittal, who is the authorized signatory. Further, transfer of amounts in the personal bank account of the accused from the accounts of the firms would also nail the accused as regards their guilt.
In the instant case, the challan was presented about 2 years back and till date even the charges have not been framed. An amount of about ₹ 6 crores has already been recovered by way of compounding, from the owners of the industrial units in Panipat who had allegedly benefited from the forged bills. The petitioners have been behind bars for a substantial period of about 2½ years. Conclusion of trial is likely to consume time as the trial has not even commenced till date.
Keeping in mind, the fact that the trial is yet to commence, no useful purpose would be served by further detaining the petitioners behind bars who have been in custody since last about 2½ years - the petitions merit acceptance and are hereby accepted and the petitioners are ordered to be released on regular bail on their furnishing bail bonds/surety bonds to the satisfaction of learned trial Court/Chief Judicial Magistrate/Duty Magistrate concerned.
Petition allowed.
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2021 (11) TMI 157 - BOMBAY HIGH COURT
Validity of Show cause notice - jurisdiction - Inadmissible transitional credit - Education Cess (E Cess) - Secondary & Higher Education Cess (SHE Cess) - Krishi Kalyan Cess (KK Cess) - petitioner claims that not only on the date of its issuance but even on the date this writ petition was presented, the amendment(s) referred to in the impugned notice had not come into force - HELD THAT:- For sustaining the validity and/or legality of the impugned show-cause notice, the respondent no.3 could not have relied upon Explanation 3 exclusively to contend that cess is not included in ‘eligible duties and taxes’. As the law now stands, Explanation 3 does not have any application to sub-section (1) of Section 140. The respondent no.3 while issuing the impugned show cause notice perhaps overlooked this aspect and also that, parts of the amendments in Explanations 1 and 2 to Section 140 of the CGST Act sought to be introduced by sub-clauses (1) each of clauses (b) and (c) of Section 28 of the Amending Act are yet to be brought into force - A reference to Explanations 1 and 2, as it stands now, may be held to be mindless which, in law, would amount to issuance of a notice without due regard to the provisions of law as well as facts requiring existence or non-existence of a material fact for assumption of jurisdiction.
We are conscious of the settled law that the High Court in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India ought not to interfere with a show-cause notice as a matter of routine or for the mere asking. However, it is only in a case where a show-cause notice is found to be totally non-est in the eyes of law for absolute want of jurisdiction of the authority issuing the notice to even investigate into the facts that the writ court may, instead of relegating the noticee to respond to the show-cause notice, itself examine the point of lack/want of jurisdiction.
Perusal of the impugned show-cause notice would reveal assumption of jurisdiction by the respondent no.3 based on introduction of Explanation 3 to Section 140 of the CGST Act read with Explanations 1 and 2 thereof without showing application of mind as to whether the amended Explanations 1 and 2 have been made operational or not as well as whether Explanation 3 would at all apply to sub-section (1) of Section 140 of the CGST Act. There could have been little reason for us to interfere if assumption of jurisdiction by the respondent no.3 on the ground appearing from the impugned show-cause notice were shown to be defensible with reference those provisions of law, which have become operational by due exercise of power in terms of sub-section (2) of Section 1 of the Amending Act - Even otherwise, it has not been shown that upon introduction of Explanation 3 of Section 140 of the CGST Act read with partly un-amended Explanations 1 and 2 thereof, the respondent no.3 did have the jurisdiction to issue the impugned show-cause notice.
The present case is one where the impugned show-cause notice suffers from an error going to the root of the jurisdiction of the respondent no.3 in assuming jurisdiction and is, accordingly, indefensible and liable to be set aside - Petition disposed off.
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2021 (11) TMI 156 - PUNJAB AND HARYANA HIGH COURT
Grant of regular bail - fraudulent ITC - offence committed under Section 132 (1)(c) of CGST Act, 2017 read with Section 20 (xv) of IGST Act, 2017 - HELD THAT:- This petition is allowed and the order dated 22.09.2021 passed by this Court, granting interim bail to the petitioner, is hereby made absolute.
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2021 (11) TMI 155 - GUJARAT HIGH COURT
Classification of goods - papad of different shapes and sizes - classifiable under Entry No.96 of the exemption notification no.2/2017 – Central Tax (Rate) dated 28.6.2017 - Exemption from GST - Section 103(1)(b) of the GST Acts - HELD THAT:- Issue NOTICE returnable on 1st December 2021.
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