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GST - Case Laws
Showing 21 to 40 of 154 Records
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2021 (11) TMI 978
Seeking grant of anticipatory bail - lower amount of GST paid to Government - manipulation of GST returns - forged challans and returns - HELD THAT:- The allegations in the FIR are primarily against Harish Kumar Rampal, who was the Chartered Accountant and it was his duty to file the requisite GST returns and also the fact that the petitioner is only involved in the case as there is a transfer of some amount and also the fact that as per the petitioner, the amount of ₹ 21 lakhs out of the said ₹ 31 lakhs has already been returned to Pooja Sablok and the balance amount of ₹ 10 lakhs has already been deposited with the trial Court, regarding which there is no objection in case the said amount is deposited with the GST Authorities and also the fact that the petitioner has joined the investigation, the present petition for grant of anticipatory bail is allowed and interim order dated 12.08.2021 is made absolute.
It is however, clarified that the payment of the amount of ₹ 10 lakhs is without prejudice to the rights of the petitioner as well as the complainant, as by virtue of the said payment, neither the petitioner has admitted her guilt in the matter nor the complainant has fully and finally settled the matter with the petitioner so as to entitle her to file petition for quashing of the FIR solely on the basis of compromise.
Application disposed off.
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2021 (11) TMI 977
Maintainability of petition - availability of alternative remedy of appeal - prayer was made that since the time for filing the statutory appeal is going to expire by the end of the month, since the petitioner was bonafide in approaching this Court, it may be permitted to prefer the appeal by 10.12.2021 - section 107 of CGST Act - HELD THAT:- This Writ Petition is disposed of with liberty to move an appeal under Section 107 of the Act. If the same is done by 10.12.2021, in accordance with law, the Appellate Authority shall consider the matter on merits after giving opportunity of hearing to the petitioner, and pass orders thereupon expeditiously.
The original certified copy of the order be returned by Registry to learned counsel for the petitioner under due acknowledgement of the advocate on record for the petitioner by 26.11.2021 - Petition disposed off.
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2021 (11) TMI 976
Rejection of technical bid - failure to furnish the GST number, along with the bid - Rule 11 of the Central Goods and Services Tax (CGST) Rules, 2017 - HELD THAT:- A bare perusal of the tender document (Annexure P-1) indicates that petitioner was required to upload the scanned copy of PAN Number and GST Number, duly signed and stamped. Concededly, the petitioner did not furnish the abovesaid documents. In such circumstances, the authorities cannot be faulted with in rejecting the technical bid submitted by the petitioner. On the other hand, admittedly, respondent No.2 had submitted the GST number, along with other necessary documents vide Annexure P-11. As regards contention raised by learned counsel for the petitioner with respect to Rule 11 of the CGST Rules, the said contention is noticed only to be rejected, in view of the fact that the petitioner has not challenged the condition requiring furnishing of GST number.
Once the petitioner had accepted all the terms and conditions of the tender and was well aware of the mandatory requirement of furnishing the GST number, now she cannot be permitted to say that she was not required to do so. In such a situation, it can be safely concluded that the authorities have rightly rejected her technical bid, being non-compliant. On the other hand, respondent No.2 had furnished the GST number and was the only tenderer remaining in the fray, and therefore, declared as technically compliant.
From a bare perusal of the tender document, it is crystal clear that requirement of experience is not mandatory. Further, condition No.2 of the tender document envisages that preference would be given to those tenderers, who had, at least, one year experience in running the shops of identical in nature. Once possession of experience is not mandatory, non-submission of experience certificate by respondent No.2 does not disentitle him - as stated by respondent No.1 in its return, respondent No.2 has not been extended any benefit of experience under this clause. But, in fact, he has been allotted tender, for he fulfilled all the mandatory requirements of the tender document, and was the sole tenderer remaining in the fray.
The only and the inevitable conclusion that could be reached is that the petition being bereft of merit is required to be dismissed - petition dismissed.
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2021 (11) TMI 975
Validity of grievance ticket - reopening of the grievance ticket - opportunity to revise Form Tran 1 electronically - transitional credit u/s 140(1) of CGST Act, 17 - Section 140 of CGST Act, 17 and Rule 117 of CGST Rules - HELD THAT:- Though the allegations and counter allegations have been made as regards uploading or non-uploading, ability to upload and inability to upload, the fact remains that, what is sought to be uploaded are relating to transactions which occurred prior to 27.12.2017 which are evidenced by records including transactions carried out through normal banking channels. It is these transactions which have already occurred prior to the introduction of GST regime which are sought to be filed by uploading the Form in Tran- 1. More so because there is a new procedure which has been prescribed and new methodology which has been adopted for the assessment etc., an assessee cannot be deprived of any input credit that he may be entitled to only on account of non-uploading of a particular form.
What is sought for by the assessee herein is for an opportunity to upload Tran 1 form containing the details of the transaction conducted by the Assessee prior to 27.12.2017, the filing of the form by itself would not entitle the assessee for any particular credit input or otherwise, the same would always be subject to scrutiny by the authority and if there are any false information found in the information which is uploaded by way of the above forms, the authorities have necessary powers under the Act to deal with the same.
A certiorari is issued, the closure of the grievance ticket raised by the petitioner vide Annexure-H is quashed. A mandamus is issued directing the respondent authorities to open the portal to enable the petitioner to upload the necessary forms, if the portal cannot be opened to permit the assesse to file hard copies of the said form and act thereon.
The writ petition is partially allowed.
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2021 (11) TMI 974
Seeking withdrawal of petition - Reversal of input tax credit - seeking declaration that the reversal is done under force and coercion on the date of search conducted at residential premises of the director and made under the signature of the director who is not authorized for the same - reversal of refund of Input Tax Credit - seeking restraint from coercing the Petitioner to make any payment without issuing notice under Section 74(1) of the Central Goods and Services Tax Act, 2017 - seeking direction in the nature of mandamus to the Respondents to provide copy of panchnama with regard to search which was conducted at the office premises of the Petitioner - seeking direction in the nature of mandamus to the Respondents to provide the DSC / digital signatures of the directors of the Petitioner - seeking direction in the nature of mandamus to the Respondents to provide the copies of documents that have been seized under the provisions of Section 67(5) of the Central Goods and Services Tax Act, 2017.
HELD THAT:- This Court is of the view that if Mr.Tarun Jain has not joined the investigation, the respondents are at liberty to take action in accordance with law - The statement made by learned counsel for petitioner is accepted by this Court & petitioner is held bound by the same and accordingly, the present petition is dismissed as withdrawn.
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2021 (11) TMI 973
Relevant date for claiming refund under CGST Act - interpretation of the expression 'relevant date' qua CGST (Amendment) Act 2018 - period June of 2018 and August of 2018 - Rule 92 of CGST Rules and Section 54 (8) (b) of C-GST Act - HELD THAT:- The refund applications made on 19.04.2021 need to be entertained and the order of Hon'ble Supreme Court clearly enures to the benefit of the writ petitioner in the case on hand. To that extent, the impugned orders are wrong.
Matter sent back to the respondent for considering the refund application de novo and make an order inter alia in accordance with Rule 92 of said Rules and Section 54 (8) (b) of CGST Act - petition disposed off.
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2021 (11) TMI 972
Cancellation of registration of petitioner - time limitation for filing appeal - appeal has been filed within the prescribed time- limit or not - appeal filed against the order for cancellation of Registration to be decided are proper, or not - section 107 of CGST Act - HELD THAT:- Though the delay in filing the appeal is condonable only for a further period of one month provided that the appellant was prevented by sufficient cause from presenting the appeal is shown and the delay of more than one month is not condonable under the provisions of sub section (4) of Section 107 of the Central Goods and Service Tax Act, 2017. It is also found that the appellant has not submitted any ground for not filing of appeal within the stipulated period. Whereas in the grounds of appeal the appellant has contended that he is facing financial crunch due to Covid-19.
Keeping view of the directions of the Apex Court in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (11) TMI 387 - SC ORDER] wherein it has been directed that for computation of period of limitation of appeal, the period from 15.03.2020 to 02.10.2021 shall stand excluded and balance period of limitation remaining as on 15.03.2021 if any, shall become available with effect from 03.10.2021. The instant appeal has been filed by the appellant on 28.09.2021 against the impugned order dated 14.11.2019 by delay of more than one month from the normal period prescribed under Section 107(1) of the Central Goods and Service Tax Act, 2017. Though the delay in filing the appeal is condonable only for a further period of one month provided that the appellant was prevented by sufficient cause from presenting the appeal is shown and the delay of more than one month is not condonable under the provisions of sub section (4) of Section 107 of the Central Goods and Service Tax Act, 2017.
The appellant has filed this appeal beyond the prescribed period that too after expiry of further one month's period in terms of sub section (4) of Section 107 of the Central Goods and Service Tax Act, 2017 which could be condoned by the undersigned - it is clear that the appellate authority has no power to allow an appeal which is filed beyond the prescribed period.
Since the appeal is filed after expiry of the prescribed period of three months and a further period of one month which may be condoned by the undersigned, the appeal deserves to be rejected on the grounds of limitation - Appeal dismissed.
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2021 (11) TMI 935
Rejection of the petitioners claims for budgetary support under a “Scheme of Budgetary Support under Goods and Service Tax” regime - rejection on the ground that the claims were made for the period prior to the registration which is impermissible - HELD THAT:- Notification dated 05.10.2017 is a Scheme of Budgetary Support under Goods and Service Tax regime to the units located in the States of Jammu and Kashmir, Uttarakhand, Himachal Pradesh and North East including Sikkim. In pursuance of the decision of the Government of India to provide budgetary support to the existing eligible manufacturing units operating in the states under different industrial promotion schemes of the Government of India, for a residual period for which each of the units is eligible, a scheme was introduced as a measure of good will.
It was stated that the Department of Industrial Policy and Promotion (DIPP), the administrative department, had issued Notification dated 05.10.2017 which had come into operation with effect from 01.07.2017 and shall remain in operation for the residual period. Budgetary support under the scheme shall be worked out on quarterly basis and claims for the same shall also be filed on a quarterly basis. It was also specified that the eligible units was required to obtain one time registration and file an application for payment of budgetary support which shall be processed by the Deputy/Assistant Commissioner of the Central Taxes for sanction of the admissible amount. The sanction amount shall be credited into bank accounts of the beneficiaries through PFMS platform of the Central Government. Paragraph 6 thereof, which is pressed by the petitioner, states that the claim for the quarter ending September, 2017 has already become due. In order to mitigate the difficulties of the eligible units, it has been decided that units would be registered on the basis of application filed by them manually and application of claim for budgetary support for the said quarter would also be filed and processed manually.
From the circular dated 27.11.2017 it is clear that although the claim for the quarter ending September, 2017 had already become due “In order to mitigate the difficulties of the eligible units” it was decided that those eligible units would be registered on the basis of application filed by them manually and application for claim for budgetary support for the said quarter (i.e., quarter ending September, 2017) would also be filed and processed manually. Reading the Standard Operating Procedure even for the first quarter ending September, 2017 it is clear that registration under the GST is a necessary prerequisite for the scheme and the UID would be issued only after registration - an argument is sought to be made that if such an application is presumed to have been made even then the petitioner failed to follow up the application. Quite evidently, the manual application 12.12.2017, although permitted under the circular dated 27.11.2017, was not processed for registration by the respondents.
Quite evidently although the application for registration and issuance of UID made by the petitioner had been received by the respondent No. 3 on 12.12.2017, the authority neither registered the petitioner nor rejected the application compelling the petitioner to reapply for the same electronically pursuant to which registration and UID was granted on 31.10.2018. The fact that registration and UID was granted makes it evident that the petitioner was eligible for the budgetary support under the scheme. Quite clearly the Respondent No. 3 failed to process the application for registration as required. Since, the Respondent No. 3 failed to grant the registration to the petitioner, although it was an eligible unit, the petitioner could not have made their claims for budgetary support before being allotted the UID - As the respondents have rejected the claims of the petitioner on the technical ground, it is directed that the authorities shall process the four claims made by the petitioner for budgetary support and sanction reimbursements as found eligible within three months from the date of this judgment.
Petition allowed.
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2021 (11) TMI 934
Confiscation - penalty - neither the tax nor the penalty, as demanded, was deposited by the owner of the goods or the transporter - Section 107 of the U.P. Goods and Services Tax Act, 2017 - HELD THAT:- The facts and circumstances reflect that the show cause notice dated 23.12.2020 was misleading and incorrect. Where a show cause notice in Form GST MOV-10 is issued, which is a preclude to possibility of imposition of liability in the nature of civil consequences against a person, the same has to be specific, containing necessary and correct particulars that may enable the noticee to clearly understand the matter and appear or file his reply on the date and in the manner specified in the notice. Evidently, the show cause notice sent in the aforesaid Form GST MOV-10 dated 23.12.2020 does not comply with the aforesaid requirement as the date for appearance is stated as 28.11.2020. The quandary and dilemma that can visit a person served with such a show cause notice can only be imagined.
Had the show cause notice Form GST MOV-10 been properly prepared, the petitioner could have had adequate opportunity to represent his case and, subject to such proof as required by clause (v) of sub-section (1) of Section 130 of the Act, would not have been saddled with the liability under sub-sections (2) and (3) of Section 130 of the Act. Therefore, the show cause notice Form GST MOV-10 that was issued was defective which resulted in denial of opportunity to the petitioner, and as such, cannot be said to be a show cause notice in the eyes of law.
Thus, not only have the principles of natural justice not been complied with by the respondents, the petitioner has also been prejudiced by such non-compliance. There is no material on record to demonstrate that an opportunity of hearing was duly granted to the petitioner as is the mandate of sub-section (4) of Section 130 of the Act.
The order passed by the Additional Commissioner Grade II (Appeal)-I, State Tax, Agra as well as the order dated 29.11.2020 Form GST MOV-11 passed by the Assistant Commissioner (Mobile Squad) Unit-2, Commercial Tax, Agra cannot be sustained and are hereby quashed - Petition allowed.
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2021 (11) TMI 933
Supply or not - activity of the applicant i.e. collecting contributions and spending towards meeting and administrative expenditures only - contributions from the members in the Administration Account, recovered for expending the same for the weekly and other meetings and other petty administrative expenses incurred including the expenses for the location and light refreshments - doctrine of mutuality - HELD THAT:- In view of the amended Section 7 of the CGST Act, 2017, it is found that the applicant society and its members are distinct persons and the fees received by the applicant, from its members are nothing but consideration received for supply of goods/services as a separate entity. The principles of mutuality, which has been cited by the applicant to support its contention that GST is not leviable on the fees collected from its members, is not applicable in view of the amended Section 7 of the CGST Act, 2017 and therefore, the applicant has to pay GST on the said amounts received from its members.
The entire dispute raised by the applicant in respect of fees received from its members is settled by the above mentioned amendment made to Section 7 of the CGST Act, 2017 and therefore, fees received by the applicant from its members for expending the same for the weekly and other meetings and other petty administrative expenses incurred including the expenses for the location and light refreshments, amounts to 'supply' as defined under the GST Act.
In the instant case, the monthly contribution made by the members to the association is in return for receiving the services of the Applicant Club. The money collected by the Appellant from its members is used to procure services and goods from a third party and provide the benefits of such procured goods and services to the members of the association. Under GST, the term 'person' has been defined in Section 2(84) of the CGST Act, 2017, to include an 'individual' as well as an ‘association of persons or a body of individuals, whether incorporated or not. Therefore, the individual members who are members of the Applicant Club are beneficiaries and the contribution made by them is to be considered as consideration for the services received.
It is clear that the member and the club are two distinct persons and hence, any activities and transactions between them will be supply between separate/distinct persons. After the retrospective amendment as mentioned above, there remains no doubt that the activities involved in present case are nothing but 'supply', as defined under the Act.
The amendment to Section 7 (mentioned above) clearly treats the applicant and its member as two different persons where there is a supply of services from the applicant to its members and thus as per the applicant's own submission that two different persons have been envisaged in the law to tax a transaction as a supply made for a consideration, it is found that in the instant case there is a supply by the applicant to its members and consideration is received in the form of “fees”.
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2021 (11) TMI 932
Supply or not - amount collected as membership subscription and admission fees from members by the applicant club to meet out the expenses for the object for which it is incorporated - meeting expenses - communication expenses - Audit fees - Rotary International (RI) per capita dues - subscription fees to the Rotarian or Rotary regional magazine and the like - furtherance of business in this activity or not - supply of services to its Members under GST - principles of mutuality - HELD THAT:- In view of the amended Section 7 of the CGST Act, 2017, it is found that the applicant society and its members are distinct persons and the fees received by the applicant, from its members are nothing but consideration received for supply of goods/services as a separate entity. The principles of mutuality, which has been cited by the applicant to support its contention that it is not rendering any supply to its members and GST is not leviable on the fees collected from its members, is not applicable in view of the amended Section 7 of the CGST Act, 2017 and therefore, the applicant has to pay GST on the said amounts received from its members.
The meetings conducted by the applicant which includes food, refreshment, etc. are nothing but activities carried out by the applicant for its members and therefore we hold that, contributions from the members, recovered for expending the same for the weekly and other meetings and other petty administrative expenses incurred including the expenses for the location and light refreshments, amounts to or results in a supply, in the subject case - The impugned activities performed by the Applicant for the welfare activities of its members which includes meetings with food and refreshment, etc., is a service rendered by the Applicant to its members as per the definition of the term ‘services’.
In the instant case, the monthly contribution made by the members to the association is in return for receiving the services of the Applicant Club. The money collected by the Appellant from its members is used to procure services and goods from a third party and provide the benefits of such procured goods and services to the members of the association. Under GST, the term ‘person’ has been defined in Section 2(84) of the CGST Act, 2017, to include an Individual’ as well as an ‘association of persons or a body of individuals, whether incorporated or not. Therefore, the individual members who are members of the Applicant Club are beneficiaries and the contributions made by them is to be considered as consideration for the services received.
The applicant club and its members are distinct persons and the amounts/consideration received by the applicant from its members are nothing but consideration received for supply of goods/services as a separate entity. The principles of mutuality, which has been cited by the applicant to support its contention that GST is not leviable in its case, is not applicable in view of the amended Section 7 of the CGST Act, 2017 and therefore, the applicant has to pay GST on the said amounts received against membership subscription and admission fees from members.
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2021 (11) TMI 889
Provisional Attachment of petitioner's bank Account - Section 83 of the CGST Act, 2017 read with Rule 159(1) of the CGST Rules, 2017 - HELD THAT:- The issue brought before us is squarely covered by the decision of the Supreme Court in M/S RADHA KRISHAN INDUSTRIES VERSUS STATE OF HIMACHAL PRADESH & ORS. [2021 (4) TMI 837 - SUPREME COURT] where it was held that The formation of an opinion by the Commissioner under Section 83(1) must be based on tangible material bearing on the necessity of ordering a provisional attachment for the purpose of protecting the interest of the government revenue.
The impugned communication dated 1.2.2021 issued under Section 83 of the CGST Act, 2017 is set aside. The aforesaid bank account of the petitioner may be released from attachment, forthwith - Petition allowed.
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2021 (11) TMI 888
Levy of interest - interest imposed on gross amount without deducting the Input Tax Credit which is already paid by the petitioner - appeal preferred by the petitioner has been rejected without any application of mind to the grounds of appeal raised by the petitioner - violation of principles of natural justice - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, we form an opinion that the order is bad in law. This we say so, for two reasons- (a) violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case; (b) order passed ex parte in nature, does not assign any sufficient reasons even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences.
Petition disposed off subject to conditions agreed upon between parties.
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2021 (11) TMI 887
Exemption from GST levy - printing of pre-examination material items like Question Papers, OMR Sheets [Optical Mark Reading], Answer Booklets with/without OMR, Practical Answer Booklets, Hall Tickets and other examination material specific to various educational boards/Universities - printing of post-examination material like Rank Cards, Marks Cards, Grade Sheets and Certificates specific to various educational boards/ Universities - activity of evaluation of OMRS and answer sheets, i.e., scanning and processing of results of examination - amounts to provision of service or not - HELD THAT:- The Sl.No.66 of Notification No.12 of 2017-Central Tax (Rate), dt: 28-06-2017 provides for exemption for services related to admission to or conduct of examination by such institution. Therefore if the applicant is providing any service in relation to conduct of examination by an educational institution as defined in the notification above then such services qualified to be exempt under Entry No.66 of Notification No.12/2017.
Printing of Cheques - HELD THAT:- The Notification No.2 of 2017 exempts supply of Cheques, lose or in book form at HSN code 4907. The applicant does not supply cheques to Bankers, it is the Bankers who are supplying cheques to their customers. The content of the cheque book is supplied by the banker and the banker is the person who owns usage rights to such intangible property. The applicant is printing cheques as per the directions of the Bankers and therefore in case of cheques where the applicant uses their own physical input, i.e., paper. The applicable rate of GST will be on different footing.
In the case of the applicant he is providing services of printing and this activity of printing is not falling under item (i) of heading 9989 i.e., printing of newspapers, books (including Braille books), journals and periodicals and therefore is covered under Heading 9989 (ii) of Notification No.11/2017-Central Tax (Rate), dated: 28-06-2017 as amended and is taxable at 9% CGST & 9% SGST - In view of the clarification issued by CBIC dated: 20.10.2017 it is clarified that where the applicant uses physical input, i.e., paper supplied by their client for the purpose of goods falling under chapter 48 or 49 of customs then the same will fall under Heading 9988 (ii)(a) and is taxable at 6% under CGST.
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2021 (11) TMI 886
Exemption under GST - Applicability of N/N. 39/2017-CT(R) dated 18.10.2017 read with G.O.Ms.No. 140 dated 17.10.2017 issued by the Commercial Taxes and Registration Department - activity of manufacture and supply of Fortified Rice Kernels to the Tamil Nadu Civil Supplies Corporation pursuant to the Pilot Scheme on “Fortification of Rice &, its Distribution under the Public Distribution System” project launched by the Central Government - HELD THAT:- In the case at hand, the applicability of the Notification was raised before us for the FRK(Premix) supplied by the applicant to the Designated Rice Mills for mixing with the Rice in a fixed proportion and distributing the same under the Scheme duly approved by the Government. As per the submissions, it has been established by the applicant, that the product satisfies the conditions for classifying under CTH 19 basis the Laboratory report furnished by them. It is also established that they undertake supply of FRK as per the tender conditions and supplies the same to the Designated Rice Mills for intended supply under the scheme on mixing the FRK with the Rice in the given proportion. It is also seen that the supply is made based on the demand placed on them vide proceedings issued by the TNCSC and invoice is raised for each such period of supply. The product supplied by the applicant to the rice mills for blending with rice grains is Fortified Rice Kernel (FRK), which per-se is not a 'Food Preparation', in as much as the FRK cannot be consumed as such or after cooking, but FRK is 'goods'. Further the FRK is not directly supplied to the economically weaker sections, but only after blending with rice grains in designated rice mills.
The Notification No. 39/2017-C.T.(Rate) dated 18.10.2017 provided the concessional rate to 'Food Preparation' subject to fulfillment of conditions at Column (4) before such amendment. Therefore, the concessional rate under Notification No.39/2017-C.T.(Rate) for the Period 18.10.2017 to 30.09.2021 is not available to the applicant for reasons, that;-
(1) FRK is not a food preparation put up in unit containers for free distribution to economically weaker sections and;
(2) Applicants are not involved in free distribution of FRK to economically weaker sections.
Vide notification No. 11/2021-C.T. (Rate) dated 30.09.2021, the Notification 39/2017 dated 18.10.2017, was amended effective from 01.10.2021, by including the terms “Fortified Rice Kernel (Premix) supply for ICDS or similar scheme duly approved by the Central Government or any' State Government” in column (3) and also, the words 'Food Preparation' is amended as 'goods' in column (d) of the Notification - The applicant is eligible for the benefit of Notification No. 39/2017-C.T.(Rate) dated 18.10.2017 as amended by Notification No. 11/2021-C.T.(Rate) dated 30.09.2021, effective from 01.10.2021 only, on fulfilling the conditions stipulated thereon in column (d) for such periodic demand and supply of FRK (Premix) made by them and the concessional rate is not eligible to them for the period upto 30.09.2021.
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2021 (11) TMI 885
Exemption under GST - Services provided by the applicant to the recipient i.e. The Greater Chennai Corporation - service provided to the local authority by way of activity in relation to functions entrusted to a Panchayat. under article 243G and Municipality under article 243W of the Constitution - pure services or not - composite supply or not - time of supply - benefit of Serial No. 3 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 - Difference of opinion - HELD THAT:- The issue is not answered and is deemed to be that no ruling is issued under Section 101(3) of the CGST/TNGST Act 2017 because of the divergence of opinion between both the Members.
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2021 (11) TMI 884
Classification of supply - deemed service or not - purchasing flats/buildings while they are under construction - immovable property should fall under the definition in clause 5(b) of Schedule II of SGST Act, 2017 or not - inward supply does fall under the exclusion provided in Sec 17 of the CGST Act, 2017 from availing input tax credit (ITC) or not - HELD THAT:- Though the construction of a building is covered by the definition of works contract still there are (2) separate entries in Schedule II which describe the eligibility of immovable property to tax. Both these entries read with Sec 7(1A) make the supply of immovable property taxable under the Act. However, the Schedule II carves out certain types of works contract under clause 5 to be treated differently from the types of works contract enumerated in Entry 6. This does not alter the basic definition of works contract given in Sec 2(119).
It is a settled principle of interpretation that while interpreting the provision of taxing statute, a construction which would preserve the purpose of provision should be adopted. Therefore in the very nature of taxation statute the interpretation cannot be absolutely cast upon the logic. The purpose of introducing exceptions in Sec 17 of the CGST Act, 2017 is to distinguish it from other transactions. Wherever the legislature has considered it appropriated to ensure consistency in the working of various provisions and to avoid repugnancy and ambiguity in such places they have clearly enacted such exclusions. Where such clarity of excluding a particular transaction is not clearly mentioned it cannot be inferred by logic.
The interpretation of Sec 17(5)(c) wherein works contract services are excluded from claiming ITC will include all activities enumerated under Sec 2(119). And this definition does not exclude any species of works contract relatable to any immovable property where transfer of property in goods is involved. Thus the applicant who is purchasing building under an agreement of sale is not eligible to claim ITC under Sec 17 of the CGST Act, 2017.
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2021 (11) TMI 865
Initiation of recovery proceedings of tax - requirement of service of order of assessment - section 78 of FA - HELD THAT:- Perusal of Notice (Annexure P-10) would show that in two of the notices i.e. Recovery No.34 of 2021 and 35 of 2021, order date is mentioned as 18.8.2021. Under Section 78 of the Act of 2017, the period of three months is provided for making payment of the tax assessed/ascertained by the Proper Officer but the letter/notice Annexure P-10 to third party under Section 79 (1) (c) of the Act of 2017 was issued on 1.10.2021 which is less than three months period from the date of the recovery order No.34 of 2021 and 35 of 2021.
It is not disputed by learned counsel for the respondents that no specific reasons have been assigned for issuing notice under Section 79 (1) (c) of the Act of 2017 for initiating proceedings under Section 78 of the Act before lapse of three months period.
Considering that no order was served upon the petitioner as required under Section 78 of the act of 2017, as an interim measure, it is directed that effect and operation of order /notice dated 01.10.2021 (Annexure P-10) shall remain stayed till the next date of hearing subject to petitioner depositing 50% of the total payable tax amount within a period of three weeks from today, adjusting amount which is already paid by the petitioner, pursuance to the notice.
List this case in the week commencing 6th December 2021.
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2021 (11) TMI 864
Refund of GST - Section 54(11) of the Central Goods and Service Tax Act, 2017 - period of July, 2019 and August, 2019 - HELD THAT:- The petitioner states that subsequent to the filing of the present writ petition, investigation has concluded and two Show Cause Notices dated 29th July, 2021 have been adjudicated upon.
The present writ petition is disposed of as having become infructuous.
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2021 (11) TMI 863
Provisional attachment of accounts - initiation of proceedings by Respondent against the Petitioner - Section 67 of the CGST Act - HELD THAT:- At Court’s direction, learned counsel for respondent no.1 has obtained instructions. He admits that every provisional attachment shall cease to have effect after the expiry of period of one year from the date the order had been passed under Section 83(1) of the Act.
The present writ petition is allowed and the Respondents are directed to de-freeze the Petitioner’s Current Account with Respondent no.2-Bank, within three working days of uploading of the present order - petition disposed off.
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