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GST - Case Laws
Showing 21 to 40 of 75 Records
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2021 (5) TMI 767
Power u/s 83 as well as under Section 5(3) off KGST Act - designation of proper officer in terms of Sections 83(1) and 5(3) of the Act be adjudicated upon - Power to attach bank accounts - Invoice was not available for claiming Input Tax Credit - HELD THAT:- Statement is made by the learned Additional Government Advocate that on the basis of the material available necessary report would be sent to the concerned to initiate assessment proceedings as per law and that they do not intend to further proceed with the proceedings under Section 67 of the Act and such submission is stated to be made under instructions of the respondent No.3.
The petitioner may be called upon to secure the interest of the revenue. In light of the said stand by putting the petitioner on terms while noticing the absence of the invoice, at the present point in time as regards to the claim of credit for input tax, the Court is of the view that the petitioner on furnishing bank guarantee of ₹ 7,00,000/- the order of attachment may be lifted.
It must be noted that in light of disposal of the main petition while recording the statement of the Government Advocate stated to be made upon instructions that proceedings under Section 67 of the Act will not be proceeded with on the basis of the material made available by the assessee to the department, entering in to the question of validity of the order at Annexure-A and the challenge as regards delegation under Section 83 of the Act by the Commissioner to other person would remain an academic question which need not be adjudicated in the present case and may be dealt with in an appropriate case. Further when the petition is itself being disposed off without the necessity of adjudication there is no warrant to embark upon further adjudication of the legal contention raised.
The request of the petitioner for continuing with the present proceedings is rejected - Petition disposed off.
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2021 (5) TMI 705
Grant of Bail - GST evasion - petitioner has remained in custody for a period of about one year and seven months - HELD THAT:- It is directed that accused-petitioner shall be released on bail provided he furnishes a personal bond in the sum of ₹ 1,00,000/- together with two sureties in the sum of ₹ 50,000/- - Bail application allowed.
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2021 (5) TMI 704
Grant of Bail - GST evasion - involvment of CA - availment by passing of ITC wrongfully by creating 38 fake firms - HELD THAT:- This bail application filed on behalf of the petitioner deserves to be dismissed; for the reasons, firstly, the petitioner failed to appear before the Department while notices were issued to him, secondly, even after filing of complaint before the learned Trial court, he remained absconded for about one year and thirdly, the petitioner is a chartered accountant, who is master mind of the crime and he has created 38 fake firms and availed ITC wrongfully to the tune of ₹ 6,36,32,492/-.
No case is made out to release the petitioner on bail under Section 439 Cr.P.C. - Bail application dismissed.
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2021 (5) TMI 701
Grant of Bail - GST evasion - petitioner being CA was instrumental in registration of 11 fake firms and these firms have availed fraudulent input tax credit - HELD THAT:- Taking note of the fact that Chartered Accountant has remained in custody for a period of one year and five months and that petitioner is also having a child and also considering the contentions put forth by counsel for the petitioner, it is deemed proper to allow the bail application.
It is directed that accused petitioner shall be released on bail provided he furnishes a personal bond in the sum of ₹ 1,00,000/- together with two sureties in the sum of ₹ 50,000/- each - Bail application allowed.
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2021 (5) TMI 674
Bail application - petitioner was acting as middleman by procuring GST registration pertaining to defunct companies - petitioner was receiving commission for selling the details of GST registration of defunct companies - section 132 (5) of the CGST Act - HELD THAT:- In the case on hand, it is the insistent stand of the respondent that the value of fraud is to the tune of around ₹ 55 Crores - A perusal of record shows that there are serious allegations against the present petitioner, who is the one of the main accused, that he along with co-accused, by perpetrating fraud and through paper transactions have claimed the relief to the tune of more than ₹ 55 Crores. The case is at preliminary stage and enlarging the petitioner at this point of time on bail would have a detrimental effect on the investigation.
Further, without his role as middleman, the whole crime could not have been perpetrated. The nexus of very many persons within the administrative framework could not be ruled out and a proper and full-fledged investigation is necessary to unearth the larger conspiracy involved behind the above. It is not as if the petitioner has been under incarceration for a long length of time. In such a backdrop, this Court is of the considered view that the prayer for grant of bail by the petitioner cannot be acceded to.
Petition dismissed.
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2021 (5) TMI 621
Service of summons - respondent submits that the summons are like spent bullets, and therefore, have become inefficacious - HELD THAT:- Mr. Bansal, on instructions, says, no steps for criminal prosecution qua the petitioner have been triggered based on the impugned summons.
The writ petition is closed.
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2021 (5) TMI 618
Recovery of GST while the appeal is pending - requirement with the pre-deposit - section 107 (7) of JGST Act - HELD THAT:- In view of the specific provision of sub-Sections 6 & 7 of Section 107 of the JGST Act and in view of the admitted position that the subsequent garnishee notices dated 15.01.2021 covers both the appeals filed by the petitioner, this Court is of the view that on account of pre-deposit which has been made by the petitioner at appellate stage read with the mandate of section 107 (7) of JGST Act, the petitioner deserves an interim protection. The counsel for the State may seek instructions and file response to the affidavit dated 24.03.2021 and also give appropriate explanation for the statement made in the counter-affidavit filed on behalf of respondent No.-2 which prima-facie appears to be incorrect, in view of the affidavit dated 24.03.2021 filed by GSTN.
The operation, implementation and execution of the impugned garnishee notice dated 14.12.2020 issued in FORM GST DRC – 13 to the petitioner’s banker, namely, Andhra Bank, Branch-Jagatpura, Jaipur, Rajasthan as well as the impugned garnishee notice dated 15.01.2021 issued in FORM GST DRC – 13 to third party, namely, M/s. Adani Power (Jharkhand) Ltd. (SEZ Unit) as contained in Annexure-15 of the interlocutory application being I.A. 601/2021 are stayed till the next date.
The matter is adjourned and is directed to be posted on 19.04.2021.
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2021 (5) TMI 617
Carry forward of ITC - ITC, as per tran-1, was not reflected in the Electronic Credit Ledger - only grievance is that in the Electronic Credit Ledger, ITC has not been carried forward - HELD THAT:- Reliance placed in the case of Hon'ble Division Bench of the Delhi High Court in M/S. BLUE BIRD PURE PVT. LTD. VERSUS UNION OF INDIA & ORS. [2019 (7) TMI 1102 - DELHI HIGH COURT]. In the said case also, the dealer had committed an inadvertent error in showing the available stock of goods in column 7(d) of the Form insetad of 7(a) of the Form - It was held in the case that In the present case, the Court is satisfied that, although the failure was on the part of the Petitioner to fill up the data concerning its stock in Column 7(d) of Form TRAN-1instead of Column 7(a), the error was inadvertent. The Respondents ought to have provided in the system itself a facility for rectification of such errors which are clearly bona fide.
Since the petitioners have clearly made out a case for grant of relief, the jurisdictional officer/6th respondent is directed to verify the correctness of the facts projected in the petition mentioned representations dated 20.02.2020 and on being satisfied with the same, forward the petitioners' case to the Nodal Officer, namely, fifth respondent herein who will coordinate with the first respondent so that the petition mentioned credit amounts filed in Form TRAN 1 are duly carried forward to the petition mentioned Electronic Credit Ledger pertaining to the respective writ petitioners - Petition allowed.
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2021 (5) TMI 601
Violation of principles of natural justice - validity of ex-parte assessment orders of the 1st respondent - Section 75(4) and 126(3) of the TNGST Act - HELD THAT:- The impugned order of assessment has been passed on 07.02.2020, whereas personal hearing has been on 03.12.2020, after much latter the impugned order of assessment made, which clearly shows non-application of mind on the part of the 1st respondent. Even the Deputy Commissioner (ST)(Int), Madurai, has filed an appeal under Section 107 of TNGST Act, before the Appellate Deputy Commissioner (Appeal), Goods and Service Tax, Madurai, as against the above said assessment orders passed by the 1st respondent, dated 07.02.2020, pointing out certain deficiency. In such view of the matter, no doubt in my mind that there is total non-application of mind on the part of the 1st respondent in passing the impugned order of assessment, dated 07.02.2020. In the considered opinion of this Court, the petitioner is entitled to be heard in person, before the order of assessment was made.
The matters are remanded back to the 1st respondent to pass fresh orders, after affording an opportunity of personal hearing to the petitioner - Petition allowed by way of remand.
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2021 (5) TMI 599
Intermediaries helped in rotating the money between the buyers and sellers of various goods and services - Sections 420, 467, 468 and 471 read with Section 120(E) IPC and Sections 132 (1) (i) read with Section 132(1) and (f) of the APGST Act, 2017 - HELD THAT:- The investigation in this complaint may go on. However, no coercive steps will be taken against the petitioners including arrest as and when they appear before the Investigating Officer on 22.04.2021 by petitioner NO.2 and 24.04.2021 by petitioner No.l or such further dates without obtaining further orders from this Court.
Post on 05.05.2021, in the motion list." 2440/2021
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2021 (5) TMI 598
Transitional input tax credit - Request for availing transitional credit rejected on the ground that the tax payer has no technical glitches in filing TRAN-1 as per the system logs - HELD THAT:- The writ appeals preferred by the Union of India have been dismissed. However, as the period to file TRAN-1 has been expired on 30.08.2020, the respondents-assessees were granted time to file/revise TRAN-1 up to 31.03.2021, meaning thereby more than six month’s time was granted to the assesses therein.
While dismissing the present writ appeal, 30 days time is granted to the assessees to submit their GST TRAN-1 from today - Appeal dismissed.
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2021 (5) TMI 593
Detention of goods under Section 129(1) of CGST Act - Invoice number mentioned in Tax invoice not tallied with E-way bill - HELD THAT:- The issue some what identical to the case on hand came up for consideration before the Division Bench of this Court in ANNAM JEWELLERS VERSUS DEPUTY COMMERCIAL TAX OFFICER AND ANOTHER [1996 (3) TMI 492 - ANDHRA PRADESH HIGH COURT]. In the said case, the Writ Petitioners were engaged in the business of gold and silver articles. The premises was inspected by the 1st Respondent, and on verification of the stocks, the inspecting authority got recorded statements from the writ petitioners to the effect that the petitioners were liable to pay tax under Section 6A of the Andhra Pradesh General Sales Tax Act, 1957, and accordingly, collected the tax as well as the penalty, which was five times that of the tax payable and the amount was collected by way of cheques. Later on, the action of the authority was challenged on the ground that the same is arbitrary and violative of principles of natural justice, and that no notice and opportunity was given to the dealers and no assessment was also made.
Thus, it is very much clear that the action of the authorities in collecting the tax either on the spot or later, can always be challenged subsequently by questioning the jurisdiction or their authority to collect tax - this Writ Petition is allowed, holding that the Respondents were in error in collecting the tax and penalty from the Petitioner, for release of the goods seized.
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2021 (5) TMI 557
Vires of Rule 96(10) of the CGST Rules as amended by Notification No.54/2018-Central Tax dated 9.10.2018 - retrospective operation to N/N. 4/2018-Central Tax dated 9.10.2018 - HELD THAT:- The Coordinate Bench in COSMO FILMS LIMITED VERSUS UNION OF INDIA & 3 ORS. [2020 (10) TMI 1099 - GUJARAT HIGH COURT] took the view that the notification No. 54 of 2018 should be made applicable with effect from 23.10.2017 and not prior thereto i.e. from the inception of Rule 97(10) of the CGST Act.
It is the Notification No. 54 of 2018 dated 09.10.2018. According to Mr. Sheth, the Notification itself makes it clear that the same shall come into force from the date of its publication in the official gazette. According to Mr. Sheth, what has been observed in the case mentioned, it needs to be relooked, as the Department has started issuing notices indiscriminately on the premise that the Notification would apply with effect from 23.10.2017.
Let Notice be issued to the respondents returnable on 22.03.2020. Till the next date of hearing, the proceedings pursuant to the notice dated 04.02.2021 Annexure – B shall remain stayed.
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2021 (5) TMI 528
Provisional attachment of Bank accounts of petitioner / Director of the company - availment of ITC against fake/ineligible invoices - HELD THAT:- There is nothing in the statement of the petitioner, which would show, that she had anything to do with the purported illegal transaction said to have been carried out between Milkfood Ltd. [i.e., the taxable person], and its suppliers.
The petitioner claimed, in her voluntary statement, that she was paid ₹ 1.50 crores in the FY 2019-2020 for rendering services in her capacity as a mentor/advisor to Milkfood Ltd. Therefore, even if we assume, for the moment, that, since investigations are on against the taxable person, and therefore, proceedings are pending under Section 67 of the Act, there is nothing placed on record to show that there was material available with the respondent, linking the petitioner to purported fake invoices. In other words, in the absence of such material, the impugned action concerning provisional attachment of the petitioner’s bank accounts, which is otherwise a “draconian” step, was unsustainable.
The impugned provisional attachment orders dated 07.12.2020. are quashed - Petition allowed.
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2021 (5) TMI 505
Revocation of cancellation of registration - non filing of returns for a continuous period of six months - non submission of reply to the SCN within the time specified therein - HELD THAT:- The adjudicating authority has cancelled their registration due to non filing of GSTR-3B returns for the period Ist March-2019 to till date i.e. 10.06.2020 and effective date of cancellation of registration is 10.06.2020 whereas in the second proviso of Notification No.52/2020-Central Tax dated 24th June 2020 it is clearly stated that where the total amount of central tax payable in the said return is nil, the total amount of late fee payable for a tax period, under section 47 of the said Act shall stand waived for the registered person who failed to furnish the return in FORM GSTR-3B for the period of July, 2017 to January, 2020.
In the instant case, the appellant has filed his GSTR-1 and GSTR 3B on 30.09.2020. Further, on going through the records, it is observed that the appellant has not filed return upto June-2020 whereas, the benefit of notification with regard to waiver of late fee has been given in the said notification upto January-2020 only. In view of this facts, it is found that the appellant did not deposited late fee for the period January-2020 onwards. The appellant has not been complied with the proviso of the Rule 23 of CGST Rules, 2017.
The cancellation of registration of appellant may not be considered for revocation - Appeal dismissed - decided against appellant.
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2021 (5) TMI 497
Seizure of goods alongwith the vehicle - e-invoice and e-way bill were not available at the time of interception - e-invoice and e-way bill were produced before the competent authority - Confiscation order - HELD THAT:- The petitioner approached the authorities for provisional release of goods under Section 67(6) of the GST Act on 30.04.2021. It is stated that by a communication dated 03.05.2021, the authority declined the provisional release of goods.
Let Notice be issued making it returnable on 20.05.2021.
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2021 (5) TMI 493
Violation of principles of natural justice - Service of pre-assessment SCN - notice was sent to the earlier business address of the petitioner, which was never received by petitioners - change of address of petitioners - HELD THAT:- The impugned Assessment Orders passed by the 1st respondent for the periods 2013-14, 2014-15, 2015-16, 2016-17 and 2017-18 are set aside - the matters are remitted back to the 1st respondent for fresh consideration; the 1st respondent shall issue pre-assessment show cause notice to the petitioners to the address mentioned in the cause title in the Writ Petitions in accordance with Rule 64(1)(b) of the Telangana VAT Rules - Petition allowed by way of remand.
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2021 (5) TMI 487
Refund on CGST and IGST - denial only on the ground that his claim got consolidated under one head of SGST - petitioner's specific case is that due to error and new system of software in GST, the entire refund liability of ITC got auto populated under the head of SGST instead of CGST, SGST and IGST - HELD THAT:- When the petitioner has received show cause notice for the rejection of the refund application, the petitioner in his reply dated 24.01.2019 and 14.05.2019, had categorically stated that they filed refund application indicating that the entire refund claim got auto-populated under a single head, namely, SGST. If due to error on the part of any software in GSTN, this had occurred obviously, the petitioner cannot be expected to produce proof for the same. In any event, the petitioner had submitted the refund applications manually also. If the petitioner was otherwise eligible to refund, on the ground of technical glitches and error having occurred due to auto-population, the petitioner ought not to be denied relief. Nothing can be more unfair.
The orders impugned in these writ petitions are set aside to the extent they reject the refund claim of the petitioner made under CGST and IGST. The matter is remitted to the file of the second respondent - Petition allowed by way of remand.
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2021 (5) TMI 465
Attachment of Seized vehicle - HELD THAT:- Draft amendment is allowed. Let, necessary incorporation be carried out. Ms. Shah learned Government Pleader upon instruction has stated that vehicle earlier seized under Section 67(2) of the GST Act and subsequently attached under Section 83 of the GST Act, 2017 would be released within a week from today i.e. by 13.5.2021. Rest of the goods seized and attached which include mobile phone and dairy may continue with the department if it so desired.
The concerned officers are indisposed as such sometime may be granted for filing counter affidavit in response to the draft amendment and the additional affidavit if any. For the said purpose, two weeks time may be granted. This matter be listed upon opening after summer vacation on 15.6.2021.
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2021 (5) TMI 464
Delay in filing of appeal - HELD THAT:- The delay in Petitioner’s invoking the proviso to Rule 23 of the Odisha Goods and Services Tax Rules (OGST Rules) is condoned and it is directed that subject to the Petitioner depositing all the taxes due and complying with other formalities, the GST return filed by the Petitioner, provided it is filed on or before 5th July, 2021, will be accepted by the Opposite Parties.
Petition disposed off.
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