|
Advanced Search Options
GST - Case Laws
Showing 61 to 80 of 154 Records
-
2021 (11) TMI 716
Seeking permission to correct the cause title of the petition - Rule 23 of the Central Goods and Service Tax Rules (CGST Rules) or Rule 23 of the Odisha Goods and Service Tax Rules (OGST Rules) - HELD THAT:- The Petitioner is permitted to correct the cause title of the writ petition or file consolidated cause title forthwith. In the existing cause title portion, the provision mentioned “Odisha Goods and Services Tax Act, 2017 and the Odisha Goods and Services Rules, 2017” be also corrected as “Central Goods and Services Tax Act, 2017 and the Central Goods and Services Rules, 2017”. Accordingly, in the cause title of the order sheet “The Commissioner, CT and GST Odisha” be read as “The Commissioner, CGST, Central Excise and Customs and Others”.
Though no averment is made in this application with regard to para 2 of the order dated 8th September, 2021 regarding Rule 23 of the Odisha Goods and Service Tax Rules (OGST Rules), according to learned counsel for the Petitioner, the relevant provision is Rule 23 of the Central Goods and Service Tax Rules (CGST Rules).
Application for recalling of the order is allowed.
-
2021 (11) TMI 715
Levy of Interest - Section 50 of the Jharkhand Goods and Services Tax Act, 2017 - HELD THAT:- The issue relating to levy of interest on net tax liability under Sect ion 50 of the JGST Act, 2017 shall stand governed by the decision in the case of [2021 (3) TMI 645 - JHARKHAND HIGH COURT] where it was held that
Petition disposed off.
-
2021 (11) TMI 714
Violation of the principles of natural justice - Validity of GST assessment order - no opportunity of filing an objection and personal hearing provided - Section 74 (1) of the CGST/SGST Act, 2017 - HELD THAT:- A perusal of Ext.P8 order shows that the same had been issued without giving a breathing time to petitioner. An assessment order being the commencement point of various rights and or obligations that accrue to assessees, it is necessary that a reasonable time is granted to the assessees to file their objections. In this context, it is relevant to bear in mind that the Hon'ble Supreme Court had extended all periods of limitation till 02.10.2021 taking into consideration, the specific issues relating to Covid.
It cannot be said that petitioner had been granted sufficient opportunity to reply to the notice - Ext.P8 is liable to be set aside - Petition allowed.
-
2021 (11) TMI 689
Attachment of Bank Account of petitioner - section 83(1) of the CGST Act - HELD THAT:- Mr. Jetly, learned senior advocate for the respondents seeks 6 (six) months’ time to complete the proceedings. Mr. Mishra informs that the petitioner does not intend to file any further reply. In such circumstances, we expect the office of the Principal Commissionerate to proceed to decide the show-cause notice issued to the petitioner, without wasting any further time.
While rejecting the prayer of Mr. Jetly, we direct the adjudicating authority, i.e., the Additional Commissioner, to decide the show-cause notice in accordance with law and upon granting opportunity of hearing to the petitioner, as early as possible, and preferably within two months from date of receipt of a copy of this order. All contentions are left open for being urged by the petitioner before the adjudicating authority.
This writ petition shall be listed on 28th January, 2022 for reporting compliance of this order.
-
2021 (11) TMI 688
Seeking for impleadment of immediate family members of the petitioner - seized cash amount belongs to the applicants, who now seek to be impleaded - HELD THAT:- Issue notice. Ms.Nidhi Banga and Mr.Harpreet Singh, Advocates accept notice on behalf of the respondent no.1 and respondent nos.2 to 6 respectively. They pray for and are permitted to file their counter affidavits/replies to the application within three weeks. Rejoinder affidavit, if any, be filed before the next date of hearing.
-
2021 (11) TMI 687
Filing of Form Tran-1 - vires of sub-rule 1(A) to Rule 117 of CGST Rules - N/N. 48/2018 CT dated 10.09.2018 - restriction on extension of time limit only to those registered persons in respect of whom Council has made recommendation - Circular No.No.39/13/2018 dated 03.04.2018 - HELD THAT:- This Court has categorically came to the conclusion that the CGST provisions more particularly relating to filing and uploading of Forms is a transitory provision and on account of the same, a beneficial treatment has to be extended to the assesse so as to permit the assessee to make his filings and obtain any input credit if so entitled.
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 - If the assessee is deprived of benefits on such technical grounds, there would be no purpose in having the tax system, which would result in the assessee trying to evade taxes.
There would be no requirement for issuance of Certiorari to quash Sub-Rule 1A to Rule 117 of CGST or Rule 17 inserted by notification No.48 or the circulars issued as sought for - 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.
-
2021 (11) TMI 646
Vires of section 16(2)(c) of the Central Goods and Services Tax Act, 2017 - explanation has been called for from the petitioners as to why action, as proposed may not be taken - HELD THAT:- Issue notice to the respondents, returnable on January 11, 2022. Since the vires of section 16(2)(c) of the CGST Act is under challenge, the petitioners are directed to put the Attorney General for the Union of India on notice.
Pendency of the writ petition shall, however, not preclude the respondent no.1 to take the proceedings arising out of the impugned show cause notice to its logical conclusion; however, any order passed in such proceedings shall be subject to and abide by the result of this writ petition.
-
2021 (11) TMI 645
Blocking of Input tax credit - Credit admissible to the petitioner was blocked on 28.01.2020 and is continuing for more than one year - HELD THAT:- In view of the communication issued by the office of the Directorate General of Goods and Service Tax Intelligence, Bhubaneswar Zonal Unit, informing that Input Tax Credit of the petitioner M/s. Beekay Steel Industries Ltd., has already been de-blocked from 09.11.2021, cause of action for continuing this writ petition does not survive.
The writ petition is disposed off as having been rendered infructuous, leaving open the issue regarding vires of Sections 16, 17, 49 and 49A of the CGST/APGST Act, 2017, to be decided in an appropriate case.
-
2021 (11) TMI 644
Seeking grant of anticipatory bail - availment of fraudulent input tax credit under fake invoice without movement of goods - section 67(2) of CGST Act - non-compliance with the summons - non-existent suppliers - HELD THAT:- There is sufficient evidence against applicant. He is engaged in availing fraudulent tax credit. The statement of applicant was recorded u/s. 70 of the Act. There are 12 non existent suppliers. The respondents have power to arrest. What is required is reason to believe about involvement of the suspect. There is sufficient evidence on record to satisfy the reason to believe.
No case is made out for granting relief to the applicant - Bail application rejected.
-
2021 (11) TMI 643
Seeking grant of Bail - Input tax credit - issuance of invoices of bills or without supply of goods or services - retraction of statements - corroborative evidences or not - offence under Section 132(b) of CGST Act - HELD THAT:- It is apparent that the respondents had received information from CGST Jodhpur vide letter dated 16th March, 2021. M/s. Gajmukhi Bullion was found non existent at the registered place of business. The information was provided regarding recipients of M/s. Gajmukhi Bullion pertaining to jurisdiction of CGST and Cx. Mumbai that one of the supplier is M/s. Gajmukhi Bullion. The case of the respondents is that the applicant had passed ITC to the tune of ₹ 2,54,61,612/- to M/s. Gajmukhi Bullion. The information was received from Belgavi CGST and Cx. Commissionerate Mumbai that M/s. Gajmukhi Bullion being receiver of ITC to the tune of ₹ 15,22,02,368/- from one non-existence tax payer M/s. Karnataka Jewellers.
The case of the respondents is that the applicant had fraudulently passed ITC to the tune of ₹ 2,54,61,612/- to M/s. Gajmukhi Bullion which is non-existent firm without actual receipt of goods and also availed the ITC. There is no reason to believe that the applicant is involved in availing ITC. There was no genuine transaction as claimed by the applicant. There was verification of supplier as per the GSTR-2A and it was revealed that M/s. Gajmukhi Bullion, Mumbai had availed ineligible ITC facilities from those companies. The investigation also revealed that 11 entities are non-existent. The total ITC availed by the suppliers was amount of ₹ 40.11 Crores approximately.
The contention of the applicant that the statement was retracted and there is no corroborative material on record to support the claim of respondents. There sufficient material to deny pre-arrest bail to applicant. According to respondents during the statement recorded on 12th July, 2021 under Section 70 of CGST Act, the applicant has stated that statements dated 31st May, 2021, 16th June, 2021 and 21st June, 2021 have been correctly recorded. There is no retraction of statement dated 25th June, 2021. As per GSTR-2A of applicant the amount of ITC availed by applicant in respect to three firms is total taxable value in ₹ 990.17 Crores. The custodial interrogation of applicant is necessary.
The applicant have not made out case for granting relief under Section 438 of Cr.P.C. - bail application dismissed.
-
2021 (11) TMI 642
Seeking grant of anticipatory bail - irregular availment of input tax credit - fictitious/dummy/non genuine firms - revocation of cancellation of GST registration - HELD THAT:- There is sufficient evidence showing involvement of applicants. Their custodial interrogation is necessary. The decisions relied upon by the advocate for applicants are not applicable to the applicants. The statement of Alpa Mehta indicate that accounts were opened in her name and in the name of her son by the applicants. They have obtained their personal documents. Three firms were registered using the name of Smt.Mehta. 15 firms suspected to be non genuine were traced. All the 15 firms were registered by using mobile number or e-mail IDs of applicant or his father Paresh Mawani. The statement of C.A Chetan Tak states that applicants have instructed him and his staff over phone for GST related work of 8 out of 15 firms. There were transactions of crores of rupees in the bank account of Unique Pharma Chem and other firms. The amount has been withdrawn.
The applicants from their personal e-mail ID have made correspondence with CGST officers and other tax payers in relation to GST query of one of dummy firms. Both the applicants have floated 17 dummy on-genuine firms wherein fake invoices valued more than ₹ 300 crores approximately involving more than ₹ 1,500 crores of GST were involved. The applicants Paresh Mawani has accepted that he is managing the business activies and maintaining four firms wherein two are dummy proprietorship firms.
No case for grant of anticipatory bail is made out - bail application dismissed.
-
2021 (11) TMI 641
Seeking unconditional withdrawal of this application - grant of anticipatory bail - irregular availment of Input Tax Credit - HELD THAT:- The letter dated 13/08/2021 sent by GST Authorities to the co-accused has nothing to do with the present applicant. In any case, the particular letter relied on by Shri Kadam dated 13/08/2021 is issued by the Office of the Commissioner of Central GST, Belapur to M/s.Bansal Traders. In the letter it is specifically mentioned that no comments could be offered on whether goods have been supplied or otherwise. In any case, if the co accused Bansal has or has not claimed benefit of Input Tax Credit; it is strictly business of co-accused Bansal. The present applicant, in any case, has nothing to do with such filing of form, by co-accused.
There are no change in circumstances in favour of the present applicant. On the earlier occasion, responsible statement was made by learned counsel for the applicant for withdrawal of the application after the matter was fully argued and after the material against the applicant was examined. Earlier the application was withdrawn unconditionally - application rejected.
-
2021 (11) TMI 589
Seeking grant of pre-arrest bail - input tax credit - application moved on the ground that the Applicant had not claimed Input Tax Credit and a letter dated 1st September, 2020 issued by the office of Commissioner (GST) was issued mistakenly - HELD THAT:- In the course of investigation, Sarfaraz had produced two delivery challans, admitting delivery of clove bags by the Complainant. These two challans bears signature of Sarfaraz. There are no reason to disbelieve these two challans. It shows that Complainant had delivered cloves to the Sarfaraz and, thereafter, raised invoices bearing Nos.106 and 107 and filed GSTR-1.
Whether goods delivered to Sarfaraz, were at the instance of Applicant? - HELD THAT:- It is surprising that in the subsequent communication dated 13th August, 2021, the GST Authority opined that M/s. Bansal Traders has not availed ITC against these Invoices during the period March 2020 to October 2020 as was evident from GSTR 3B return filed by M/s. Bansal Traders and GSTR-9 Annual Return filed on 5th February, 2021. If at all, GSTR 3B and GSTR 9 was filed on 5th February, 2021 how and under which circumstances the CGST Authority had certified in their first letter addressed to Investigating Officer that M/s. Bansal Traders has availed Input Tax Credit of CGST and SGST against Invoice Nos. 106 and 107. Although the concerned Officer (GST) was requested to explain the anomaly, he could not explained it and satisfy the Court’s query. Thus, subsequent communication dated 13th August, 2021 addressed directly to Applicant is ignored.
The evidence collected in the course of investigation, prima facie, shows Complainant delivered the goods to Sarfaraz at the instance of the Applicant and after delivery, he denied Complainant’s claim and refused to pay him. Facts of the case constitute offence of cheating and, therefore, application deserves no consideration - Application dismissed.
-
2021 (11) TMI 584
Refund of GST - Section 54 of Goods and Services Tax Act, 2017 - Appealable order or not - availability of alternative remedy - Section 107 (1) of Goods and Services Tax Act, 2017 - HELD THAT:- Section 107 (1) of Goods and Services Tax Act, 2017 makes every order passed by an adjudicating authority appealable.
The writ petition is dismissed on the ground of alternative remedy with liberty to the petitioner to approach the appropriate Appellate Authority.
-
2021 (11) TMI 583
Seeking grant of regular bail - availment of irregular credit - creation of non-existent firm - bogus sale of goods without any proper purchase - HELD THAT:- This petition is allowed and the petitioner is directed to be released on regular bail subject to furnishing his bail/surety bonds to the satisfaction of the trial Court/Illaqa Magistrate/Duty Magistrate, concerned.
Petition disposed off.
-
2021 (11) TMI 582
Recovery of tax alongwith interest and penalty - Jurisdiction - invoking wrong provisions of GST - Non-payment of GST - petitioner had failed to file Goods and Service Tax (GST) returns since October, 2017 to December, 2018 - HELD THAT:- Against an order passed under Section 73 of the Act, the person aggrieved has a remedy of filing appeal to the appellate authority under Section 107 of the Act. As per sub-section (1) thereof, such appeal may be filed within three months from the date of communication of the order or decision. As per subsection (4), if the appellate authority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, it shall allow the appellant to present the same within a further period of one month.
In the instant case, the order under Section 73 was passed on 28.03.2019 and communicated since petitioner has deposited the tax in terms of the said order. Period of three months and the extended period of further one month have expired long back. It is settled law that when the statute does not provide for further extension of limitation beyond the extended period, the limitation for filing appeal would end on the expiry of the extended period of limitation provided by the statute. To circumvent the situation recourse to a proceeding under Article 226 of the Constitution of India is not permissible.
Respondent No.1 had the jurisdiction to assess the petitioner, whether it is under Section 62 or under Section 73 of the Act. Even if we accept the contention of learned counsel for the petitioner that respondent No.1 ought to have proceeded under Section 62 and not under Section 73, it is at best a case of invoking a wrong legal provision instead of another, but certainly that will not make it a case of no jurisdiction, or lack of jurisdiction. Acting without jurisdiction is one thing and invoking a wrong provision while acting within jurisdiction is another thing - the petitioner has partly complied with the Order-in-Original by paying the tax dues. If that be the position, then there is acceptance of the Order-in-Original. Thereafter, part challenge to the Order-in-Original may not be maintainable.
The writ petition is dismissed.
-
2021 (11) TMI 581
Service of notice for initiation of recovery proceedings of tax - Section 73 (1) of GST Act, 2017 - 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 the entirety of the facts and circumstances of the case, submission made by learned senior counsel for the petitioner 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.
-
2021 (11) TMI 580
Seeking direction to respondent to release the detenue - commission of offence under Section 132 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- From the material on the record, it is evident that the petitioner has been arrested on 18.06.2021 under Section 69 (1) of CGST Act and a complaint for offence punishable under Section 132 of the CGST Act has been filed before a Judicial Magistrate and the petitioner is in judicial custody. Vide order dated 18.08.2021, Annexure P-6, application filed under Section 167 (2) Cr.P.C by the detenue - Sahil Garg seeking grant of default bail has been dismissed and a revision challenging the said order has been withdrawn from the Court of learned Additional Sessions Judge, Chandigarh on 08.09.2021.
It cannot be said that the son of the petitioner is in illegal confinement nor can the impugned order, Annexure P-6, dismissing the application seeking release on default bail be set aside in the present proceedings.
Petition dismissed.
-
2021 (11) TMI 579
Cancellation of registration of petitioner - petitioner firm remained ignorant of the order of the cancellation, for a long time, after the lapse of about 477 days - HELD THAT:- The provisions of Section 29 (2) (c), which empowers the Competent Authority, (registering authority), to cancel the registration is a self contained provision, where the power of cancellation, could be exercised by the Assessing Authority for cancellation of the registration, subject to satisfying the condition of non fulfillment of the conditions, which otherwise an assessee was required to adhere to, for the purposes of submissions of the returns for the period, as it has been detailed therein under Section 29 (2) (c) of the Act. Its not only that, this Court cannot be oblivions of the fact, that even prior to providing the recourse of an appeal under Section 107 of the Act, the legislature under the Act, had itself provided an inbuilt mechanism, which was available to the Assessee, while the petitioner could have invoked Section 30 (1) of the Act, for the purposes of revocation of an order of cancellation of the registration, provided it satisfies the condition provided under Section 30 of the Act.
The knowledge, which the petitioner attributes, that he could not obtain the knowledge, for a period of 477 days, in fact smacks a sense of irresponsibility for an assessee, who is facing an order of cancellation of its registration rendered on 21.09.2019, and particularly when the assessee i.e. the petitioner was, attributing its responsibility on the Advocate, without there being any pleading to the said effect, that in case he was misguided or mislead by the Counsel; as to what action he has taken against the Counsel, who had misinformed him or had not informed him about the order of the cancellation of his registration on 21.09.2019. Hence, the plea of inability to prefer an appeal within the specified period of limitation being on account of the Covid – 19 pandemic, is not sustainable, and is not accepted by this Court, as period of preferring an appeal, expired much prior to declaration of Lockdown by the Government of India.
Since the appeal itself has been dismissed on the ground of limitation, the writ remedy would not be available to the petitioner.
Petition dismissed.
-
2021 (11) TMI 551
Levy of penalty u/s 122(1)(ii) of TN-GST and C-GST Acts - offence of issuing invoice without supply of goods - HELD THAT:- The issue decided in the case of [2021 (10) TMI 1122 - MADRAS HIGH COURT] where it was held that
Impugned order made by first respondent and consequential order being order made by second respondent are set aside solely on the ground that alleged misuse of writ petitioner's Aadhar and PAN Cards and obtaining of fraudulent registration is under investigation - petition disposed off.
|
