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GST - Case Laws
Showing 61 to 80 of 157 Records
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2021 (4) TMI 876
Seeking allowance to access to the portal to enable us to file Form GST TRAN – 1 - filing of Form GST TRAN – 1 - HELD THAT:- It is to be noted that on 03.04.2018, the Central Board of Indirect Taxes and Customs issued a circular bearing No.39/13/2018-GST in F.No.267/7/2018-CX.8, dealing with the subject of setting up of an IT Grievance Redressal Mechanism to address the grievances of assessees. It is thus clear that the officials of the Department of Goods and Service Tax were well aware of the existence of such glitches. Notwithstanding this, the Board places the onus upon the assessee to establish a demonstrable glitch in the portal. Such requirement does not figure in the Act prior to 03.04.2018 and thus an assessee has not been put to notice that the would have to collect evidence of difficulty/technical glitch in uploading forms.
The requirement for an assessee to establish technical difficulty as expressed in Circular dated 03.04.2018, is reiterated in the provision - Though Goods and Service Tax has been introduced to streamline multiple revenue enactments, the mass litigation that Rule 117 has generated, has defeated the very object and purpose of the enactment. Transition, by itself, does not vest any right in the assessee. It is only utilisation of credit that does, and such utilisation is subject to verification and assessment by an Assessing Officer.
The exchange of communications between 12.02.2019 to 26.03.2019 reveal that the petitioner has been diligent in making efforts to open the portal and upload the forms. In the light of the above, the respondents are directed to do the needful forthwith to enable the petitioner to upload the requisite forms - Petition allowed.
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2021 (4) TMI 874
Principles of Natural Justice - opportunities given to the petitioner to produce his accounts for verification or not - HELD THAT:- Considering the fact that though the petitioner was given a personal hearing, as it was the peak period of Covid-19 Pandamic, the petitioner was not able to appear before the authorities, necessarily, an opportunity of personal hearing should be given to the petitioner to explain his case and therefore, the impugned orders are liable to be set aside.
The matter is remanded back to the respondent for fresh consideration after giving an opportunity of cross examination and personal hearing and to pass appropriate orders on merits and in accordance with law - Petition allowed by way of remand.
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2021 (4) TMI 873
Maintainability of petition - availability of alternative remedy - Reversal of transitional credit claimed by the petitioner - no excess carry forward ITC as on 30.06.2017 - grievance of the petitioner is that opportunity of hearing not provided - violation of principles of natural justice - HELD THAT:- The stand taken by the respondents that the petitioner is having an appeal remedy before the concerned Appellate Authority and therefore this Writ Petition is not maintainable cannot be accepted. At this juncture, the learned counsel for the petitioner would submit that Writ Appeal filed against the order made in the aforesaid Writ Petition has also been dismissed by this Court.
Petition allowed.
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2021 (4) TMI 839
Input Tax Credit - Inputs - Promotional Products/Materials & Marketing items used by the Appellant in promoting their brand & marketing their products - Section 16 of the CGST Act, 2017 - KARNATAKA AAR held that GST paid on the procurement of “non-distributable” products qualify as capital goods and not as “inputs” and the applicant is eligible to claim input tax credit on their procurement, but in case if they are disposed by writing off or destruction or lost, then the same needs to be reversed under Section 16 of the CGST Act read with Rule 43 of the CGST Rules - challenge to AAR decision - HELD THAT:- It is evident from the agreements that the ownership of the promotional items remains with the Appellant at all times. It is seen from the said agreements that the Appellant Company has undertaken to provide the promotional materials to the EBOs and distributors and the same will continue to be used by the EBO and distributors as long as the agreement is in force. It is also expressly stated in the agreements that on termination of the agreements, it is the responsibility of the EBOs and distributors to return the promotional materials to the Appellant. This fact was reiterated by the authorised representative during the course of the personal hearing when a specific query in this regard was posed by the Member. Therefore, it is evident that the title of the promotional items remains with the Appellant and is not transferred to the EBO or the distributor.
In terms of Section 17(2) of the CGST Act, where the goods or services or both are used by the registered person partly for effecting taxable supplies including zero-rated supplies under this Act or under the IGST Act and partly for effecting exempt supplies under the said Acts, the amount of credit shall be restricted to so much of the input tax as is attributable to the said taxable supplies including zero-rated supplies. In other words, Section 17(2) provides that input tax credit shall be allowed only when the goods and services or both are used for business purposes or for making a taxable supply (including zero-rated supply). When the goods or services or both are used towards making an exempt supply, then input tax credit is not allowed. As per Section 2(47) of the CGST Act, the term 'exempt supply' also includes non-taxable supply - the GST paid on the procurement of promotional items supplied to the EBOs/franchisees and distributors free of charge will not be eligible for input tax credit since the said supply is a non-taxable supply.
The goods procured on payment of GST which are disposed of by way of gifts are barred from being eligible for input tax credit in terms of Section 17(5)(h), even if they are used in the course or furtherance of business. Therefore, the input tax credit is not eligible on the promotional items distributed as give away items on the grounds that the same is blocked by virtue of the provisions of Section 17(2) and Section 17(5)(h) of the CGST Act.
The Promotional Products/Materials & Marketing items used by the Appellant in promoting their brand & marketing their products can be considered as “inputs” as defined in Section 2(59) of the CGST Act, 2017. However, the GST paid on the same cannot be availed as input tax credit in view of the provisions of Section 17(2) and Section 17(5)(h) of the CGST Act, 2017.
The decision of AAR set aside.
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2021 (4) TMI 838
Permission for withdrawal of application - Taxability under GST - Goodwill paid to retiring partners - HELD THAT:- The applicant vide their submissions had not provided the details as to how the goodwill was arrived and the details of financial accounts of 'Goodwill Account' for 18-19 & 19-20, which are necessary to ascertain the liability to GST.
The issue on the applicability of GST on the 'Goodwill' extended by the applicant to the retiring partners can be arrived at only after analyzing the details as to how the goodwill was arrived at and the related accounts which have not been furnished by the applicant. The applicant for the reasons that their consultants are not available has requested for withdrawal of the application - the withdrawal is to be permitted as the issue cannot be decided based on the submissions made by the applicant. Therefore, withdrawal is permitted without offering any observation comment on the admissibility of the application under Section 97(2) of the TNGST/CGST Act 2017 and the applicability of the GST on the 'Goodwill'.
The application filed by the applicant seeking advance ruling is disposed as withdrawn.
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2021 (4) TMI 837
Maintainability of writ petition before the High Court - Provisional attachment - Section 83 of the HPGST Act - valid exercise of power or not - HELD THAT:- it is evident that the expression ‘adjudicating authority’ does not include among other authorities, the Commissioner. In the present case, the narration of facts indicates that on 21 October 2020, the Commissioner had in exercise of his powers under Section 5(3) made a delegation inter alia to the Joint Commissioner of State Taxes and Excise in respect of the powers vested under Section 83(1). The Joint Commissioner, in other words, was exercising the powers which are vested in the Commissioner under Section 83(1) to order a provisional attachment in pursuance of the delegation exercised on 21 October 2020. This being the position, clearly the order passed by the Joint Commissioner as a delegate of the Commissioner was not subject to an appeal under Section 107(1) and the only remedy that was available was in the form of the invocation of the writ jurisdiction under Article 226 of the Constitution. The High Court was, therefore, clearly in error in declining to entertain the writ proceedings.
The entire procedure which has been followed by the Joint Commissioner in the present case is contrary to the provisions contained in Section 83 read with Rule 159. The Joint Commissioner (acting on behalf of the Commissioner) has proceeded on an understanding that an opportunity of being heard to the person whose property is provisionally attached is a matter of discretion, the discretion of being that of the Commissioner.
The Commissioner's understanding that an opportunity of being heard was at the discretion of the Commissioner is therefore flawed and contrary to the provisions of Rule 159(5). There has, hence, been a fundamental breach of the principles of natural justice.
We are unable to accept the contention of the respondent that merely because proceedings were pending/concluded against another taxable entity, that is GM Powertech, the powers of Sections 83 could also be attracted against the appellant. This interpretation would be an expansion of a draconian power such as that contained in Section 83, which must necessarily be interpreted restrictively. Given that there were no pending proceedings against the appellant, the mere fact that proceedings under Section 74 had concluded against GM Powertech, would not satisfy the requirements of Section 83. Thus, the order of provisional attachment was ultra vires Section 83 of the Act.
The writ petition filed by the appellant under Article 226 of the Constitution shall stand allowed by setting aside the orders of provisional attachment dated 28 October 2020.
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2021 (4) TMI 836
Levy of tax and penalty only on account of a clerical error, which crept in the e-way bill- inasmuch as the incorrect number of bill of entry was mentioned therein - HELD THAT:- Issue notice.
List the matter on 24.08.2021.
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2021 (4) TMI 834
Seeking inter-State IGST invoice instead of intra-State CGST/SGST invoice - place of supply on cargo handling services - clarification vide Circular No.103/22/2019-GST dated 28-06-2019 - HELD THAT:- Since the CBIT has already provided its clarification on 28th June 2019 (Annexure-A/1 to the writ petition), a direction is now issued to the PPT to comply with the said clarification issued by the CBIT and make amendment with respect to all the Petitioner's invoices from July 2017 onwards incorporating the levy of 18% IGST instead of 9% CGST and 9% SGST in compliance of the provision of the IGST Act. The necessary corrections be carried out not later than eight weeks from today. The said corrections will be carried out manually by the State Commissionerate.
The writ petition is disposed off.
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2021 (4) TMI 832
Allowability of migration of the tax deducted at source as input tax credit by including it in GST TRAN-I - Section 140(1) of the JGST Act, 2017 - HELD THAT:- Mr. Ashok Kumar Yadav, learned G.A.-I prays for and is allowed two weeks' time to seek instructions and file counter affidavit. Learned counsel for the State would bring on record the rectification order dated 13 th March 2019. He should also obtain instructions as to whether the last VAT assessment order ending the tax period 30th June 2017 has been passed or not.
Let the matter appear on 4th May 2021.
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2021 (4) TMI 831
Seeking Bail - Wrongful availment or utilization of input tax credit or refund of tax - Supply of goods and services or both without issue of any invoice - issuance of invoices and bills without supply of goods or services or both - offences are punishable under Section 132 (1) (a)(b) of the CGST Act - HELD THAT:- Relying on the decision of the Hon’ble Supreme Court in C. PRADEEP VERSUS THE COMMISSIONER OF GST AND CENTRAL EXCISE SELAM & ANR. [2019 (11) TMI 659 - SUPREME COURT] and in view of the fact that final assessment has not been made under Section 74 of the said Act, the petitioner is entitled to be released on bail of ₹ 5 lakhs with 5 sureties of ₹ 1 lakh each with further condition that within 15 days from the date of his release on bail, the petitioner shall deposit a sum of ₹ 91 lakhs with the appropriate officer.
The petitioner shall cooperate with the investigation of the case. Both the prosecution and the petitioner are directed to sit across the table and beside the amount payable by him towards GST.
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2021 (4) TMI 798
Clandestine Removal - excess stock found during the physical stocks verification against entries made in stock register - seizure of such excess goods - Confiscation - levy of penalty upon the Firm under Section 122(1) (xvi) and (xviii) of CGST Act, 2017 - levy of penalty upon Partner of the Firm under Section 122(3) of CGST Act, 2017.
Confiscation - appellant/department has contended that adjudicating authority has erred in holding the seized goods deserved to release as the same is not liable to confiscation - HELD THAT:- The respondent/assessee has no where raised any objection about the search proceedings as well as panchnama proceedings conducted by the investigating team. From which it may be inferred that the said proceedings were conducted in transparent and fair manner - during the proceedings the physical stock was also verified and it was found excess against the entries of stock register. The whole proceedings were done in the presence of two independent witnesses and in presence of the employees of the respondent/assessee. Further, the statements of the Supervisor, Accountant and Authorized Signatory of the Firms were recorded under Section 70 of CGST Act, 2017 before the proper officer. The Supervisor of the Firm has stated in his voluntary statement that they did not maintain stock register and also did not prepare daily production slip and they used to note down the details in Kachhi Parchi. The same facts was admitted by Authorized Signatory of the Firms and brother of Partner of the Firms, in his statement.
Thus, it is emerged that during the search proceedings the excess stock were found against the entry of stock register. Therefore, findings of the adjudicating authority that the unaccounted / excess stocks were not deliberately kept unaccounted is not tenable. Further, the respondent/assessee contended that the Supervisor were not aware about the fact position of stock and Authorized Signatory could not understand the question in correct prospective is also not acceptable - it is obvious that the assessee have not followed the procedures with regard to maintenance of proper record as provided in Section 35 of CGST Act and 56 of CGST Rules made thereunder hence he contravened the said Act and Rules made thereunder. This act of omission and commission on the part of assessee is nothing but to keep the unaccounted goods for removal the same clandestinely with intent to evade the proper tax liability.
The respondent/assessee has emphasized that the excess stocks were found due to non updations of stock register and after obtaining photocopies of the seized records, the stock register was updated and accordingly it was found that there was no excess stocks rather it was slightly short - the investigating authority has rightly arrived the value of the said excess goods as the sale invoice price can not be relied as it was undervalued upto the 60% of the actual price of the sale. Moreover in view of the above facts, the recording of statement of the Partner Sh.Lalit Goyal would have not served the purpose for arriving the value as it is very much clear that the ‘Kachha Systems’were in place rather the proper recording of accounting systems of purchase, sale, production and stocks of the goods.
The adjudicating authority has erred by holding that the seized goods is not liable for confiscation. Contrary to this view, the respondent/ assessee has contravened the provisions of Section 35 of CGST Act read with Rule 56 of CGST Rules,2017. Therefore, the seized goods is liable to confiscation in terms of Section 130 of CGST Act and Rules made thereunder - confiscation upheld.
Levy of penalty upon the Firm under Section 122(1) (xvi) and (xviii) of CGST Act, 2017 - HELD THAT:- In view of above discussions and findings it has established that the assessee did not maintained the proper books of account at the time of search proceedings hence he violated the provisions of Section 35 of CGST Act and Rules made thereunder - the penalty under Section 122(1) (xvi) and (xviii) of CGST Act, 2017 upon the assessee is very well attracted in the instant case - penalty upheld.
Levy of penalty upon Partner of the Firm under Section 122(3) of CGST Act, 2017 - HELD THAT:- On going through the section 122(3) of CGST Act it may be seen that this particular penalty is imposable on the person who aids or abets any of the offences specified in clause (i) to (xxi) of sub section 1 of Section 122 of CGST Act. From the perusal of records it has been established that the Partner of the firm is the key person who deals all the affairs of the Assessee firm. Therefore, he can not be escaped from any offence of the firm and it can not be imagined that without his involvement such kind of violations of the provisions of the act or rules made thereunder would be happened. Further, the Partner has himself admitted the said offence in his statement recorded under the provisions of law - penalty upheld.
Appeal allowed - decided in favor of Revenue.
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2021 (4) TMI 795
Profiteering - noticees cannot be placed material relevant for the purpose of investigation/inquiry - Director General of Anti-Profiteering, investigating agency or not - Rule 126 of the Central Goods and Services Tax Rules, 2017 - HELD THAT:- The NAPA, as per clause (25), of the same framework permits the interested parties/noticees to file only written submissions, and address oral arguments albeit with its permission.
Issue notice.
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2021 (4) TMI 790
Maintainability of appeal - appeal dismissed on the ground that the petitioner failed to file certified copy of the order passed by the adjudicating authority - HELD THAT:- When the Superintendent has proceeded on the basis that the petitioner had failed to reply to his show-cause notice when the petitioner had actually filed the reply, let the Superintendent pass a fresh order after considering the reply of the petitioner. For such purpose, the order passed by the Superintendent dated 4th October, 2019 and the appellate order dated 01.02.2021 are set aside. The proceedings are placed back before the Superintendent for fresh consideration and disposed of in accordance with law. The amount of pre-deposit which the petitioner has made in order to pursue the appeal shall be subject to further order that the Superintendent may pass of course subject to further right of appeal of the petitioner.
Petition disposed off.
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2021 (4) TMI 789
Detention of goods alongwith the vehicle - validity of the e-way bill which the driver was carrying had expired - power of authorities to inspect - HELD THAT:- The Superintendent has the power to detain or seize the goods as well as the conveyance, but also has the power to release such goods and conveyance provisionally on furnishing bond or such security or payment as found appropriate - In the present case, let the authorities continue the proceedings for assessment. However, till the same is done, it would not be appropriate to continue the detention and seizure of the conveyance as well as the goods.
Looking to the nature of defect in the documents of the transporter alleged, the value of the goods detained, the possible tax and penalty demand which may arise, it is directed that the respondents shall release the vehicle and the goods upon the petitioner fulfilling the conditions imposed of furnishing of bond, deposit and bank guarantee - petition disposed off.
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2021 (4) TMI 754
Vires of Explanation (a) to Rule 89(5) of the CGST Rules 2017 - HELD THAT:- Since a large number of petitions are pending in the High Courts on the same issue, it is appropriate that we list the present batch of cases at an early date, which we do by posting the cases for final hearing on 28 April 2021. The entire batch of petitions shall be listed at the top of the Board on that date.
The Registry shall ensure that the PDF format together with consecutive pagination is circulated to all the learned counsel appearing in the matter so as to ensure that the page references which are made available to the Court are also made available to all the learned members of the Bar for facilitating their submissions.
List the Special Leave Petitions on 28 April 2021 at the top of the Board.
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2021 (4) TMI 743
Alleged fraudulent availment of inward ITC - attachment of bank accounts of petitioner - HELD THAT:- Till date no proceeding under Section 74 of the CGST Act, 2017 has been initiated by the Department nor any order under Section 83 of the CGST Act, 2017 has been passed for attachment of bank account of M/s. Shree Shyam Ji Traders, Delhi.
Put up this case as fresh on 15.04.2021.
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2021 (4) TMI 741
Rejection of refund claim - order of rejection passed without granting any hearing - violation of principles of natural justice - HELD THAT:- This writ petition can be disposed of with a direction upon the officer concerned to grant one week time to the petitioner to rectify the deficiencies as per the letter dated December 18, 2019. The petitioner shall be required to rectify the deficiencies within one week peremptorily, and thereafter, the authority concerned shall grant an opportunity of hearing to the petitioner and pass a reasoned order with regard to the refund claimed by the petitioner within seven weeks from date.
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2021 (4) TMI 694
Pendency of Departmental Appeal - transfer of the matter to the callbook by Principal Commissioner of Customs - HELD THAT:- As this Court has kept open all the legal issues, the learned Central Government Standing Counsel, Mr. Vyas, on taking instructions, submitted that the matter shall be decided within a period of 8 weeks.
Let the same be decided by the competent authority without raising any technical issue of jurisdiction - Application disposed off.
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2021 (4) TMI 660
Permission for withdrawal of appeal - Refund of accumulated ITC - rate of tax on outward supplies is lower than the rate of tax on inward supplies - Inverted Duty Structure under clause (ii) of the proviso to Section 54(3) of the CGST Act, 2017 - HELD THAT:- The Authorized Representative of the appellant Sh. Chirag Jain instead of attending personal hearing has sent a E mail dated 10.03.2021 therein he intimated that “the appellant has already submitted an application for withdrawal of appeal vide letter dated 19.02.2021 and copy of the same has also been enclosed for reference. That in this context, the appellant does not wish to appear for personal hearing for the same. Further, he wished to withdraw the appeal filed with immediate effect owing to the cash flow crunches in the settlement of tax liabilities of current months.
Appeal dismissed as withdrawn.
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2021 (4) TMI 658
Applicability or determination of liability to pay Tax - Solar HT XLPE & LT XLPE Cables - availability of benefit of concessional rate of GST @ 5% - Entry Sr.No.234 of the Schedule-I to Notification No.1/2017-Integrated Tax (Rate) - non-submission of various details - HELD THAT:- In the event of non-submission of the documents by the applicant, it would not be possible to take a decision in the matter since the issue in hand covers supply of goods such as cables for the Solar Power Generating System and after going through the details, there appears to be a distinct possibility of supply of services being involved in the instant case, along with the supply of goods and in such an eventuality, the nature of the transaction as well as the aspect of GST liability thereon are likely to be completely different. There is also every likelihood of such supply of goods i.e. DC cables for Solar Power Generating System being accompanied by services such as assembly, installation of the cables with all fittings and accessories etc. Even otherwise, as can be seen from the wordings, the supply of DC cables by the applicant is to be accompanied by services such as packing and forwarding transportation alongwith transit Insurance.
In the instant case, any decision on the issue cannot be taken, since the applicant has failed to provide the documents such as contract/agreement/tender. It is thus concluded that in view of non-submission of the documents such as contract/agreement/tender by the applicant and without going through the conditions/provisions envisaged in the documents, it will not be possible to take a decision in the matter.
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