|
Advanced Search Options
GST - Case Laws
Showing 141 to 154 of 154 Records
-
2021 (11) TMI 154
Refund of Service Tax - Section 54 of TNGST Act - HELD THAT:- There is a balance qua the writ petitioner in the hands of the Department, the impugned order has to necessarily go. As all that the writ petitioner wants is his money back irrespective of the nomenclature under which it is returned to him.
The impugned order is set aside recording the stated position of the respondent leaving it open to the writ petitioner to file an application for refund in the aforesaid manner if so advised and if so desired. Though obvious it is made clear that such refund application shall be considered on its own merits and in accordance with law.
Petition disposed off.
-
2021 (11) TMI 153
Maintainability of the writ petition - Refund of excess amount lying to the credit of electronic cash ledger of the petitioner - applicability of proviso to sub-section (1) of Section 54 or sub-section (1) of Section 54 - HELD THAT:- Once it is held that the amount collected by ECO and paid to the Government under Section 52(3) of the CGST Act is tax to which the supplier is entitled to take credit in his electronic cash ledger under subsection (7) of Section 52, the provisions of Section 54 of CGST Act would apply for claiming refund of the same.
The balance amount in the electronic cash ledger till it is appropriated by making payment towards discharge of liability of tax, interest or any other amount to the Government, would be the amount available to the ‘registered person’ in whose name the said electronic cash ledger is maintained. Therefore, the stand of the respondents that since the amount collected by ECO under Section 52 of the CGST Act is not paid by the petitioner by himself and therefore, it is not entitled to claim refund of the same, is totally misplaced. As the petitioner is claiming refund balance in electronic cash ledger, it is covered by the proviso to sub-section (1) of Section 54 and would not fall under sub-section (1) of Section 54.
Maintainability of the writ petition - HELD THAT:- Though an effective remedy of appeal to the Appellate Tribunal is provided under Section 109 of the CGST Act, it is an admitted fact that the said Tribunal has not yet been constituted, though more than 3 years have elapsed after the CGST Act has been introduced. Thus, the petitioner cannot be compelled to wait for eternity to agitate its claim seeking refund of the amount to which it is entitled to under the statute and also blocking its funds affecting its cash flows, merely because of existence of (non functional) alternate forum/remedy on paper, by not invoking the jurisdiction under Article 226 of the Constitution of India. Further, mere existence of alternative remedy is no bar for invoking the jurisdiction under Article 226 of the Constitution of India, when right to carry on business is being impeded, resulting in violation of fundamental right as guaranteed under Article 19(1)(g) of the Constitution of India.
The impugned Order-in-Appeal passed by the 4th respondent, cannot be held to be a validly passed order for it to be sustained - Petition allowed.
-
2021 (11) TMI 152
Refund of IGST - goods exported out of India - zero rated supplies - misdeclaration of description/value before allowing export - period February, 2021 to May, 2021 - HELD THAT:- The provisions of the CGST Act and the IGST Act do not mandate the petitioner to verify the genuineness of the suppliers of its supplier, inasmuch as enough safeguards/mechanism are provided under the Act to recover the taxes, if not paid or wrong credit is availed by the petitioner’s supplier or supplier’s supplier - Inasmuch as no discrepancy has been found with regard to the suppliers of the petitioner, the refund claim by the petitioner cannot be denied to be processed on the ground that verification of the suppliers of the petitioner’s supplier is pending. The reluctance on the part of the respondents in granting of refund to exporters upon completion of exports would result in taking away the incentive to export and would make the exports from the country unviable due to non-flow of funds in the form of refund assured under the Act.
Further, the non-committal stand of the respondents in the counter indicating a time frame for completion of the verification in respect of L2 supplier also cannot be countenanced, since it is not the duty of the exporter, like the petitioner, to get such verification done, more so, when there is no such prescription to cause verification by the exporter, like the petitioner, before purchasing any goods from its supplier. The stand of the respondents in not completing the exercise, even if it is required to be undertaken at their end, is contrary to the instructions contained in internal circular No.20/16/07/2020-GST, dt.20.05.2020, issued by the Board wherein the Board had made changes to the SOP dt.23.01.2020 for verification of IGST refunds and specified that in future, all verifications are to be completed and report sent to the 5th respondent within a maximum period of three weeks of receipt of request for verification.
The action of the respondents, and in particular the 2nd respondent, in not granting refund of IGST paid by the petitioner on exports made during the period - 15.02.2021 to 21.05.2021, in a sum of ₹ 14,78,99,959/-, cannot be held to be valid and also the non-grant of All Industry Drawback claimed by the 4th respondent, cannot be sustained.
Petition allowed.
-
2021 (11) TMI 151
Requirement of registration in importing states other than Maharashtra - goods are imported, sold and delivered directly from CFS (Container Freight Station) / DPD (Direct Port Delivery) which is under the Customs Boundaries to customers from those States - requirement to obtain registration in State where the applicant is proposing to open a warehouse for sale of imported goods from such warehouse - issuing invoices under Maharashtra GSTIN is permissible in law for supply of imported goods from the proposed warehouse located in the State where the Applicant is not registered under GST or not.
Whether the Applicant is required to obtain the registration in importing States other than Maharashtra, if goods are imported, sold and delivered directly from CFS (Container Freight Station) / DPD (Direct Port Delivery) which is under the Customs Boundaries to customers from those States? - HELD THAT:- As per the provisions of Section 7(2) of the IGST Act, 2017, supply of goods imported into India shall be treated as supply of goods in the course of inter - state trade or commerce and as per Section 5(1) of the Act, liable to IGST at the point when duties of Customs are levied on the said goods under Section 12 of the Customs Act, 1962. In respect of goods imported into India, as per provisions of Section 11 (a) of the IGST Act, 2017, the place of supply shall be the location of the importer. In the present case since the importer is registered in Mumbai, the place of supply will be Mumbai, Maharashtra.
In the present case with respect to import of the goods, the place of supply is the location of the importer situated in Maharashtra. Since the applicant will be selling the goods before clearing the same for home consumption from the port of import, the place of supply shall be the place from where the applicant makes a taxable supply of goods which, in this case will be the Maharashtra Office. Hence, the applicant can supply the goods on the basis of invoices issued by the Maharashtra Office and, therefore, they need not take separate registration in the State of Import.
Whether the Applicant is required to obtain registration in State where the applicant is proposing to open a warehouse for sale of imported goods front such warehouse? - HELD THAT:- In respect of goods the subsequent sale after the import is important factor, in respect of which the applicant is not paying attention. The applicant is more focused on import of goods. But there is also a subsequent sale/supply of said goods in the same State where import happens and in that case, registration is to be obtained in that State from where taxable supply originates. It is an origin based provision, requiring the registration to be taken in that State.
If the situs of transaction in question is not within the state of Maharashtra, then as per provisions of section 96 of the Central Goods and service Tax Act 2017 (and similar provision under the MGST Act), the Maharashtra Advance Ruling Authority cannot acquire the jurisdiction over the questions raised, hence no ruling can be given on this question - the applicant is proposing to take a new warehouse on the eastern coast of India near a port, may be in Andhra Pradesh. As the proposed activity of taking a warehouse for the purpose of supply of imported goods is outside the state of Maharashtra, therefore, as per the provisions of section 96 of the Central Goods and service Tax Act 2017, the Maharashtra Advance Ruling Authority cannot acquire the jurisdiction over the question raised, hence no ruling can be given on this question.
Whether issuing invoices under Maharashtra GSTIN is permissible in law for supply of imported goods from the proposed warehouse located in the State where the Applicant is not registered under GST? - HELD THAT:- As the supply of imported goods is from a state which is outside the state of Maharashtra, therefore, as per the provisions of section 96 of the Central Goods and service Tax Act 2017, this Authority cannot acquire the jurisdiction over the question raised. Further, it is also found that, the said question is whether invoices can be issued under Maharashtra GSTIN. Such question, being a question relating to a procedure to be adopted, does not fall under the purview of Section 97 of the CGST Act and therefore in view of the above, this question is not answered.
-
2021 (11) TMI 150
Exemption from GST - supply made to HMC - conservancy/solid waste management services as well as garbage collection and dumping services to the Conservancy Department - Eligibility under SI No 3 or 3A of the Exemption Notification - pure service or a composite supply - functions entrusted to a municipality under article 243W of the Constitution of India or not - HELD THAT:- In the instant case, the work order issued to the applicant describes the nature of the work as lifting and removing of daily garbage etc. accumulated from the vats, dumping yards, containers and other places on the roads, lanes and bye-lanes of HMC area - the term ‘pure services’ has not been defined under the Act. However, a bare reading of the description of services as specified in entry serial number 3 of the Exemption Notification denotes supply of services which does not involve any supply of goods can be regarded as pure services. It appears that in the instant case, the supplies do not involve any supply of goods. The applicant receives consideration only in respect of the quantity of the garbage lifted and removed. So, it may be inferred that the applicant's supply to HMC, which is a local authority as defined under section 2(69) of the GST Act, is a pure service.
Whether the said services are in relation to any functions entrusted to a municipality under article 243W of the Constitution of India? - HELD THAT:- It transpires from above that the functions entrusted to a municipality as listed in the Twelfth Schedule include the functions like sanitation conservancy and solid waste management. The applicant's services to HMC is exempt under entry serial number 3 of the Exemption Notification.
Section 51(1) of the GST Act provides that the Government may mandate inter alia a local authority to deduct TDS while making payment to a supplier of taxable goods or services or both. As the applicant is making an exempt supply to the HMC, the provisions of section 51 and, for that matter, the TDS Notifications do not apply to his supply.
-
2021 (11) TMI 149
Classification of services - supply of manpower services to his clients on daily/ monthly basis for different jobs as required by his clients - pure agent services as defined in Explanation to Rule 33 of the CGST Rules, 2017 - exclusion of payment of salary/wages by the supplier from the value of supply for the purpose of section 15 of the CGST Act, 2017 - HELD THAT:- The applicant supplies manpower services for which he enters into an agreement with the recipient of services. It is submitted that the recipient of services authorizes the applicant to make payment of salary, wages and all allowances on behalf of him thereby the applicant makes such payment in the capacity of an agent of the service recipient. Further, payment of salary, wages and allowances made by the applicant is clearly and separately shown in the invoice raised by the applicant.
For the purpose of supplying manpower services as per requirement of his clients, the applicant also enters into ‘Employment Agreement’ with different work-men specifying the terms and conditions to be followed by the work-men and the wages/salary to be paid against services provided by them - the applicant maintains ‘Register of Wages’ in Form XVII under rule 78(1) (i) of the Contract Labour (Regulation and Abolition) Central Rules, 1971 in respect of such supply of work-men.
The applicant thus engages contract labour towards supply of manpower services as requited by his clients (recipient of services). Rule 33 of the CGST/WBGST Rules, 2017 clearly speaks that one of the conditions that has to be satisfied for exclusion of expenditure or costs from the value of supply which has been incurred by a supplier as a pure agent if the services procured by the service provider, as a pure agent of the recipient of service, from the third party are in addition to the services which he provides on his own account - Admittedly, in the instant case, the applicant first enters into an agreement to his client for supplying of manpower services and subsequently engages different work-men (third party) at the place of business of his clients and thereby supplies manpower services only. It is found that no other services other than manpower services are provided by the applicant to his client.
In the instant case, undisputedly the applicant is the person who is liable to pay salary/wages to the work-men employed by him under ‘Employment Agreement’ to provide manpower services to his clients and just showing such amount in a separate manner in the invoice doesn’t shift his liability on the recipient of services and makes him qualify as a ‘pure agent’ in terms of rule 33 of the CGST/WBGST Rules, 2017 - The contention of the applicant that the recipient of services authorizes him to make payment of salary, wages and all allowances on behalf of him doesn’t hold water on the same ground that such amount is actually payable by the applicant himself - the argument that the applicant makes payment of such amount “on behalf of” his client i.e., the service recipient, cannot be accepted.
-
2021 (11) TMI 109
Validity of Circular issued by the CBIC - Jurisdiction - Form GSTR-3B is return or not - imposition on rectification of Form GSTR-3B in respect of the period in which the error had occurred - Circular No. 26/26/2017GST dated 29.12.2017 - jurisdiction of the Delhi High Court to entertain the writ petition - writ petition suffered from the vice of nonjoinder of the necessary parties including that the High Court could not have issued a writ of mandamus - HELD THAT:- The writ petitioner was not challenging the individual action of the States or the Union Territories, but a policy decision of the Central authority who had issued the impugned Circular, namely, the Commissioner (GST). If the writ petitioner succeeded in that challenge, the consequential relief would follow. Nonimpleadment of respective States/Union Territories would not come in the way of the writ petitioner to pursue the cause brought before the High Court by way of subject writ petition. Even the argument regarding High Court having exceeded jurisdiction in issuing writ of mandamus, does not commend to us. If the conclusion reached by the High Court regarding the efficacy of impugned Circular was to be upheld, no fault can be found with the directions issued by it in paragraph 24 of the impugned judgment, reproduced above. Accordingly, the preliminary objections regarding the maintainability of the writ petition and the jurisdiction of the Delhi High Court deserve to be rejected.
Whether the impugned Circular dated 29.12.2017 issued by the Commissioner (GST) is without authority of law? - HELD THAT:- In strict sense, it is not the direction issued by the Commissioner (GST) as such, but it is notifying the decision(s) of the Board taken in exercise of its powers conferred under Section 168(1) of the 2017 Act. It is a different matter that a circular is issued under the signatures of Commissioner (GST), but in essence, it is notifying the decision(s) of the Board, which has had authority and power to issue directions. Accordingly, the argument that the impugned Circular dated 29.12.2017 has been issued without authority of law, needs to be rejected.
The entire edifice of the grievance of the writ petitioner (respondent No. 1) was founded on nonoperability of Form GSTR2A during the relevant period, which plea having been rejected as untenable and flimsy, it must follow that the writ petitioner/respondent No. 1 with full knowledge and information derived from its books of accounts and records, had done self-assessment and assessed the OTL for the relevant period and chose to discharge the same by paying cash. Having so opted, it is not open to the respondent to now resile from the legal option already exercised. It is for that reason, the respondent has advisedly propounded a theory that in absence of (electronicauto populated record) mechanism made available as per Sections 37 and 38, return filed in Form GSTR-3B is not ascribable to Section 39(9) of the 2017 Act read with Rule 61(5) of the 2017 Rules - Appellant not only amended the statutory rule but also provided for filing of return manually in Form GSTR-3B electronically through the common portal with effect from July 2017. This is manifest from the circulars/notifications issued from time to time including the timeline for submitting the returns.
A priori, despite such an express mechanism provided by Section 39(9) read with Rule 61, it was not open to the High Court to proceed on the assumption that the only remedy that can enable the assessee to enjoy the benefit of the seamless utilization of the input tax credit is by way of rectification of its return submitted in Form GSTR-3B for the relevant period in which the error had occurred - the assessee cannot be permitted to unilaterally carry out rectification of his returns submitted electronically in Form GSTR-3B, which inevitably would affect the obligations and liabilities of other stakeholders, because of the cascading effect in their electronic records.
Suffice it to conclude that the challenge to the impugned Circular No. 26/26/2017GST dated 29.12.2017, is unsustainable for the reasons noted hitherto - the stipulations in the stated Circular including in paragraph 4 thereof, are consistent with the provisions of the 2017 Acts and the Rules framed thereunder - appeal allowed.
-
2021 (11) TMI 108
Refund of amount illegally collected from the petitioner - Self-ascertainment under Section 74(5) of CGST Act - Amount paid under coercion - Right of Bona fide Tax Payer to be treated with dignity - availability of alternative remedy - HELD THAT:- The mere fact that application has been made for refund does not in any way take away the right of the petitioner to seek for appropriate direction in the present proceedings, as the application for refund has merely been deferred and in effect, no decision is taken, even otherwise, the question of alternate remedy is of no significance, when the eventual direction in the present writ is only for consideration of the refund application - the learned counsel for the petitioner has fairly submitted that the eventual remedy that the petitioner is seeking insofar as refund application is, a direction to consider the application de hors the investigation being carried out and in light of such stand, it cannot be stated that the statutory remedy of refund would displace the petitioner from the present proceedings and the petition is to be dismissed on such ground.
Self-ascertainment under Section 74(5) of CGST Act - HELD THAT:- The procedure of self-ascertainment under sub-section (5) of Section 74 contains a scheme that is concluded after following the procedure under sub-sections (6), (7) and (8) of Section 74 of the CGST Act. In the present case, it must be noted that though there is payment of tax and even if it is accepted that payment of tax is also followed by requisite Challan DRC-03, the mere payment of tax cannot be construed to be a payment towards self-ascertainment as contemplated under Section 74 (5) of CGST Act - the payment of tax by itself even if construed to be voluntary will not by itself in any way lead to a conclusion that the same is paid in furtherance of self-ascertainment under Section 74(5) of CGST Act. The scheme of self-ascertainment as contained in sub-sections (5), (6), (7), (8) of Section 74 of CGST Act would not admit of making of payment and continuance of investigation. Upon payment of tax after collection of the same with penalty, if the same is accepted even before the issuance of notice under Section 74(1) during investigation, there ends the matter and there is nothing further to be proceeded with.
The respondents have not taken the stand that self-ascertained tax falls short and if that were to be so, it could have proceeded to issue notice as contemplated under Section 74(7) and could have even rejected the self-ascertainment in its entirety while asserting that it would issue notice under Section 74(1) of CGST Act, if facts so warrant. The stand of the respondents is ambiguous as self-ascertainment is put forward only as defence to the assertion of the petitioner that the payment of amount has been made involuntarily - the contention of payment being made by way of self-ascertainment is liable to be rejected.
Amount paid under coercion - HELD THAT:- The manner in which investigation was carried out in late hours of the night and the early hours of the morning with physical closing of the gates during the investigation would reasonably create an apprehension in the mind of any person including the persons of the standing of Directors of the Assessee Company and its officers. The fear of police powers are such that would shake a man irrespective of their position in society. It must be noted that even under Section 132(1)(b) and (c)(i) to (iii) of the GST Act, 2017, the wrongful availment of I.T.C. is an offence and is punishable with imprisonment - the payment cannot be stated to have been made voluntarily. Such amount having been paid, retention of the said amount as referred to above by the Department right from November, 2019 till date where investigation is not concluded would call upon the department to honour legitimate claims being made for refund of the amount which cannot be grudged. Lapse of time and lack of conclusion of investigation has only exacerbated the situation conferring upon the petitioners a right to seek for refund of the amount.
Right of Bona fide Tax Payer to be treated with dignity - HELD THAT:- No doubt, the power of investigation cannot be interfered with nor can the court direct investigation be made in a particular manner, however, during all such investigation, it cannot be held that the Fundamental Rights including the right of a bona fide tax payer to be treated with appropriate dignity as enshrined under Article 21 of the Constitution of India would be kept in abeyance. We would not like to elaborate further but to leave it to the wisdom of the respondents as to the manner in which bona fide tax payers are to be treated.
Video Recording of Investigation - HELD THAT:- While the respondents would contend that the application is only for installing of CC TV only, the consequential direction that is made in the order dated 20.04.2021 is for video recording. Installation of CC TV as ordered by the Apex Court would taken within itself recording of all that would fall within the range of CC TV - recording of interrogation which direction is limited to maintaining of records relating to interrogation would make it possible as and when circumstances are so made out for summoning of the same as may be required at an appropriate stage.
The refund applications at Annexure-'Q' are to be considered and suitable orders be passed within a period of four weeks from the date of release of the order while making it clear that consideration of refund applications must be made in light of the observations.
Petition disposed off.
-
2021 (11) TMI 64
Maintainability of appeal - appeal filed by the petitioner under Section 107 of the UPGST Act, has been rejected on the ground of limitation - requirement of e-way bill under UPGST Act read with Rules framed thereunder - It is contended that the central e-way bill was downloaded on 27.03.2018 at 9.41 pm and the same was accompanying the goods during the transit - HELD THAT:- The matter is squarely covered by the decisions of this Court in M/S VARUN BEVERAGES LIMITED VERSUS STATE OF U.P. AND 2 OTHERS [2021 (10) TMI 429 - ALLAHABAD HIGH COURT], the present writ petition is allowed.
Impugned order set aside - petition allowed.
-
2021 (11) TMI 63
Time limit for grant of refund and interest - date immediately after the expiry of sixty days from the date of receipt of application in FORM RFD-01 till the date of refund - grant exemplary damages to petitioner - HELD THAT:- Issue notice. Mr.Naushad Ahmed Khan, learned ASC accepts notice on behalf of the respondents. He, on instructions, undertakes to this Court that the petitioner’s representations dated 22nd September, 2021 and 05th October, 2021 shall be disposed of in accordance with law within three weeks from today.
Petition disposed off.
-
2021 (11) TMI 62
Cancellation of registration of petitioner - section 129 of UPGST Act - HELD THAT:- Undeniably cancellation of registration has serious and far reaching consequences on the rights of the dealer/person engaged in any business. Such cancellation may even take away the right to conduct business. Also, in the context of the GST Laws, it has further consequence of upsetting ITC entitlement on sale and purchase by such a person/dealer. Even so, the Act itself obligates the authority to issue a prior notice and afford a proper opportunity of hearing to the concerned before cancellation of his registration. This mandatory requirement is contained in the first proviso to Section 29(2) of the UPGST Act, 2017.
In the facts of the present case, undisputedly the notice that was uploaded on the GST Portal was unintelligible - the bar of alternative remedy is lifted, as it is found that the petitioner's registration was cancelled without issuance of any prior show cause notice. Also, the delay is largely on account of the conduct of the State respondents or conduct attributable to the State respondents as they alone were responsible to update the information on the GST Portal. That not done, the petitioner/citizen may not be relegated to the forum of alternative remedy as his valuable right to do business has been curtailed in violation of principle of natural justice.
The order dated 30.6.2018 cancelling the petitioner's registration is set aside. The matter is remitted to respondent no.3 to pass a fresh order, in accordance with law - Petition allowed by way of remand.
-
2021 (11) TMI 61
Seeking a direction to upload the Form GST TRAN-1 within extended timeline - HELD THAT:- Identical controversy has been dealt with in M/S RATEK PHEON FRICTION TECHNOLOGIES PRIVATE LIMITED VERSUS PRINCIPAL COMMISSIONER AND 2 OTHERS AND M/S MODERN PLYWOOD CENTRE, M/S ALLIED AGENCIES VERSUS UNION OF INDIA AND 5 OTHERS [2021 (9) TMI 1042 - ALLAHABAD HIGH COURT] where it was held that there is no hesitation in observing that a reasonable opportunity ought to have been granted to all “registered persons”/taxpayers to submit/revise/re-revise electronically their Form GST TRAN-1/TRAN-2.
Petition allowed.
-
2021 (11) TMI 60
Provisional attachment of petitioner's Account - Seeking restraint on petitioner from utilising its money lying in its bank account - submission of petitioner is that merits of the action taken by the respondents apart, today, by virtue of the operation of law, the revenue authorities are not entitled to continue the attachment beyond 10.05.2021 - HELD THAT:- In absence of any contrary position existing in law and in absence of any other action being shown to have been taken by the respondent authorities, whereby they may claim entitlement to attach petitioner's bank account, it is found that the communication dated 11.05.2020 issued by the Assistant Commissioner (A.E.), Central Tax, Gautam Budh Nagar has outlived its life and perhaps its utility.
The writ petition is disposed off with the observation that the provisional attachment of the petitioner's bank account may not survive under the communication.
-
2021 (11) TMI 9
Seeking grant of Bail - tax evasion - allegation is that as from the said unit liquor was transported to various licensees in different districts of State and by using a duplicate GST invoice/bilty a different consignment was sent under an already exhausted GST Invoice/bilty and this has caused excise loss and revenue to the State - submission of learned counsel for the applicant is that the applicant has been falsely implicated - HELD THAT:- There is ample materials to indicate that he is an employee of the different firm altogether namely Stellar Capital Services Limited. There is nothing to indicate that the services of the applicant were utilized by the Cooperative Company Ltd. Nothing has been pointed except for incriminating statement made by the co-accused that the applicant has been involved. Moreover, it also to be noticed that the applicant does not have any criminal history and this fact is not disputed. The charge sheet has been filed and there is no apprehension expressed that the applicant is in position to either influence or tamper with the evidence or is at the risk of fleeing from justice. No electronic evidence has been pointed out and in any case the matter is yet to be tested in trial.
The material available on record as well as considering the nature of allegations and accusation against the applicant, the severity of the punishment if convicted and the period of incarceration as well as the fact that no apprehension has been expressed by the learned AGA that the applicant is at the risk of fleeing justice or that he would tamper with evidence or influence any witness, hence, at this stage, without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be released on bail - Application allowed.
....
|
