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GST - Case Laws
Showing 61 to 75 of 75 Records
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2021 (5) TMI 195
Uploading of an order of assessment under Section 62(1) as well as the summary thereof - HELD THAT:- The instant summary order dated 14.03.2020 must statutorily have been accompanied by a speaking order and it is only such speaking order that would be liable to be challenged, as there would be no reasoning on the basis of which the summary of order would be amenable to challenge.
The counter at paragraph 13 states that the prayer for refund sought by the petitioner, for excess payment of ₹ 5,46,641/- and 1,35,584/- are found to be correct and orders had been passed by the State Tax Officer, Thiruvallur Assessment Circle on 12.02.2021, as the assessee is assessed in that circle. The aforesaid Assessing Officer has not been arrayed as a respondent and it is only the Deputy State Tax Officer, Sriperumbudur Circle, who has been arrayed as a respondent.
Petition closed.
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2021 (5) TMI 194
Validity of attachment order - Seeking interim relief sought, that is for lifting of attachment of bank account pending appeal - service of speaking order duly made or not - HELD THAT:- Service by e-mail is thus an accepted mode of service and in the present case, I am given to understand by the learned Government Advocate that the order has been served by e-mail. I am not inclined to go into this disputed question of fact, since the petitioner, at this juncture, would state that it wishes to file a statutory appeal challenging order of assessment. The petitioner may do so within a period of four (4) weeks from today in view of the decision of the Supreme Court in a series of judgments, viz., IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (3) TMI 497 - SC ORDER] and IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (3) TMI 497 - SC ORDER] extending the time for filing of appeal till 14.03.2021.
Interim relief sought, that is for lifting of attachment of bank account pending appeal - HELD THAT:- The same cannot be considered as the details in relation to the balance available in the bank account are not placed. Had the same been produced, there could have been a direction to the authorities to set aside a portion of amount in satisfaction of the dues and permit operation of the bank account. Let the petitioner approach the first appellate authority with an application for interim protection, which may be considered, if and when filed, in accordance with law.
Petition disposed off.
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2021 (5) TMI 171
Grant of Bail - issuance of fake invoices of other firms without accompanying the goods - economic offence or not - huge loss to the tune of ₹ 7-8 crores - non-bailable offence or not - HELD THAT:- In the present case also in the reply itself it has been mentioned that accused has admitted of causing loss to the tune of ₹ 7-8 crores to the exchequer. Accused is in custody since 25.03.2021. To decide whether or not admit accused on bail or not abovesaid parameters as held by Hon’ble Supreme Court of India have to be measured/have to be assessed. The fact that accused was straightaway sent to judicial custody is prima facie indicative of the fact that accused is not required for custodial interrogation. Further, no previous involvement of accused in any similar offence has been brought on record which implies that it is his first offence and he is not a habitual offender. It is also to be seen that accused is not at a flight risk and no submissions have been made to this effect.
Keeping in view the totality of circumstances, the period of incarceration and the fact that accused is not required for any further custodial interrogation, which is otherwise also not possible as 15 days since arrest of accused have already passed, as well as no report of any previous involvement, accused is admitted in bail on his furnishing personal bond in the sum of ₹ 1,00,000/-, with one surety of equal amount, subject to the terms imposed.
Application allowed.
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2021 (5) TMI 170
Revocation of cancellation of registration - Rejection of application for revocation of cancellation of registration as appellant did not discharge their interest liability of ₹ 55,018/- against cash payment for delay filing of return and the reply to the show cause notice not found to be satisfactory - HELD THAT:- Central Board of Indirect Taxes & Customs, New Delhi has clarified the issue vide circular No.99/18/2019-GST dated 23.04.2019 wherein it has been clarified that in terms of the second proviso to sub-rule (1) of rule 23 of the said Rules, all returns required to be furnished in respect of the period from the date of order of cancellation till the date of order of revocation of cancellation of registration have to be furnished within a period of thirty days from the date of the order of revocation.
The appellant has now been complied with the said provisions, therefore, the registration of appellant may be considered for revocation by the proper officer - the appellant is ordered to file the revocation application in the prescribed form through common portal - the proper officer is ordered to consider the revocation application of the appellant subject to the verification of payment particulars, filing of returns and compliance of the provisions of CGST Act and rules made thereunder.
Appeal disposed off.
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2021 (5) TMI 169
Grant of Bail - generation of eway bills of 16 firms by concealing the identity of the real purchaser and real seller tax evasion and revenue loss - offence punishable under sections 132(1)(a) of the CGST Act and the CGST Act - HELD THAT:- A close perusal of the complaint prima facie reveals that there are 16 firms, which were part of scrutiny by the investigating agency. As per the case of the prosecution, the applicant is involved in misusing the registration numbers of these 16 firms and the total tax evasion by generating eway bill without revealing the true identity of the real purchaser or real seller is stated to be ₹ 96,047253/-. The applicant is also ready and willing to deposit some of the amount as per the instructions received by learned advocate Mr.Pandya from the applicant.
Taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant regular bail to the applicant - Bail application allowed.
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2021 (5) TMI 168
Maintainability of appeal - requirement of compliance with mandatory pre-deposit - Section 107 of the Orissa Goods and Service Tax Act (OGST Act), read with Rule 108 of Orissa Goods and Service Tax Rules (OGST Rules) - HELD THAT:- Section 107 of the OGST Act is a mandatory provision and there is no discretion with the appellate authority to waive the requirement of pre-deposit. Even this Court cannot direct the appellate forum to do so contrary to the statute - It is noticed that under Section 107 of the OGST Act upon making a pre-deposit of 10% there is an automatic stay of the balance 90% of demand, which cannot, in the circumstances, be said to be unfair or unreasonable.
In that view of the matter the Court is not inclined to entertain the present petition - Petition dismissed.
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2021 (5) TMI 167
Cancellation of registration of petitioners - fake ITC - TNGST Act - HELD THAT:- The contention of the respondents herein that the revival of registration is conditional upon the petitioner satisfying tax dues and substantiating its claim of ITC, is misconceived. What is sought for by the petitioner is revocation/revival of registration only, and in the guise of considering the application for revocation, the authorities cannot embark upon the process of assessment - An assessment would have to be made by the authority in terms of Section 73 or other applicable provision after following the procedure set out therein, and it is only in the course thereof that the officer may consider and decide questions of leviability of tax and claim of input tax credit.
Thus to state that registration will not be revived since the petitioner has incorrectly availed of ITC would be putting the cart before the horse. In fact, it is seen that the petitioner has filed monthly returns as well as annual returns for the periods January 2017-18 to September 2019-20 and for financial years 2017-18 and 2018-19 and has also remitted late fee for filing of belated returns. Thus, and these being the only conditions that are to be satisfied by the petitioner for grant of revocation of registration, the cancellation of the registration in this case is incorrect and improper.
Petition allowed.
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2021 (5) TMI 166
Detention of goods alongwith vehicle - Intention to evade GST - petitioner alleges that the 1st respondent did not consider the reply of the petitioner and demanded the petitioner to pay tax and penalty for release of the vehicle - HELD THAT:- The 1st respondent had acted mechanically without application of mind to the operational convenience of the transporter - Also for the bonafide action of the transporter, the 1st respondent cannot mulct the petitioner with tax and penalty.
The petitioner cannot be said to have any intention to evade tax if any mistake is, for the sake of argument without conceding it, has been committed by the transporter - The finding of the officer, the 1st respondent, in the impugned order that the transaction involving the petitioner was 'suspicious' and that the transporter was found 'without proper documents' is perverse and cannot be sustained in these circumstances.
The order of detention in Form GST MOV-06 on 29.12.2020 passed under Section 129(3) of the CGST Act, 2017 by the 1st respondent is set aside - Petition allowed.
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2021 (5) TMI 162
Provisional attachment of Bank accounts of petitioner - despite repeated requests, no information was disclosed by the authority concerned as to why the GST authority exercised such powers - principles of natural justice - HELD THAT:- There are no proceedings against the present petitioner under Sections 62, 63, 64, 67, 73 and 74 of the Act. There is no reason therefore, to invoke section 83 against the writ applicant and proceedings. Since the proceedings are initiated by the authorities in connection with the third parties, invocation of powers under Section 83 are not available with the respondents. Therefore, the order of the provisional attachment in connection with the bank account No.3785569992 of M/s. Global Corporation be interfered with. It is also necessary to note that despite of due service to the bank the bank has chosen not to remain present - being a drastic power, the authority concerned cannot be oblivious of the serious consequences of provisional attachment of the bank account. Even if for the purpose of safeguarding the interest of the government revenue, the bank had chosen to follow the directions from the respondents, not to intimate to the petitioner as to why his account was freezed is wholly impermissible.
There are already proceedings initiated under Section 79 against the present petitioner, who is the third party. Against such initiation of proceedings under Section 79 of the Act, no challenge in the present petition is made and a limited prayer is to the actions of initiating proceedings under section 83 and freezing of the account which has already been addressed.
The attachment is ordered to be lifted and the petitioner is permitted to operate his bank account - Petition allowed - decided in favor of petitioner.
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2021 (5) TMI 94
Grant of Anticipatory Bail - valid and genuine purchases or not - HELD THAT:- Perusal of the anticipatory bail application does not bring out any material or reason to believe that any such inference is being drawn or is being sought to be drawn by the revenue authorities against the applicant, presently. Merely because the applicant has been called upon to participate in the inquiry against M/s. G.K. Traders, does not involve an automatic accusation against the applicant and it also does not involve the risk of his arrest. At present, the applicant claims that he had made genuine purchases from the said M/s. G.K. Traders for which he had made payments and had thereafter sold the goods to third parties.
Accordingly, leaving it open to the applicant to lead such evidence before the revenue authorities, at present, no real apprehension is found to exist of the applicant being arrested - Application rejected.
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2021 (5) TMI 88
Refund of amount collected as penalty - impugned order does not stipulate even basic details such as the date and time of hearing - no reasons set out for the conclusion arrived at by the authority - HELD THAT:- Though the show cause notice and the impugned order are entirely non-speaking and contain blanks, which vitiate them in full, the statement of the driver recorded in Form-GST MOV-01 contains the observation that 'the goods moved from Chennai to Ambur, which is unregistered place of buyer as per invoices the destination place is mentioned as Ambur but as per E-Way bill delivery address mentioned as Bhosari, Maharashtra.' - The detention order under Section 129(3) of the Act also contains the reasons for detention of the goods as aforesaid.
Liberty is granted to the respondent to issue notice afresh, hear the petitioner and pass a speaking order in regard to the levy of penalty, de novo. Let this exercise be completed within a period of six (6) weeks from today - petition allowed.
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2021 (5) TMI 85
Non-compliance with the mandatory pre-deposit before filing of appeal - Section 107(6)(b) of the CGST Act, 2017 - HELD THAT:- The petitioner shall make the mandatory pre-deposit @ 10% on the amount of tax in dispute as envisaged under Section 107(6)(b) of the CGST Act, 2017 within the period of 15(fifteen) days from today with the Joint Commissioner (Appeals).
Petition disposed off.
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2021 (5) TMI 53
Non-compliance with the previous order - HELD THAT:- The speaking order will be passed before the next date of hearing. The statement of Ms. Verma is taken on record.
List the matter on 06.05.2021.
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2021 (5) TMI 52
Jurisdiction - validity of issued summons - Section 6(2)(b) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The petitioner has made out a prima facie case for wrongful assumption of jurisdiction.
List the matter on 20.07.2021.
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2021 (5) TMI 39
Levy of GST - license fee granted to the Private Contractors to run parking of vehicles - demand made by the Southern Railway - HELD THAT:- When there is no provision to collect the GST from the contractors on the license fee, then the terms and conditions of the agreement became null and void and therefore, the conditions imposed in the agreement would not be binding on the contractors. In this regard, the learned counsel for the petitioner relied on Section 32 of the CGST Act and sub-clause (2) to Section 32 stipulates that “no registered person shall collect tax except in accordance with the provision of this Act or the Rules made thereunder” - In the present cases, even before the introduction of the present CGST Act, the Contractors were paying the taxes based on the erstwhile Act, mainly Service Tax Act. After the implementation of the CGST Act, when there is prohibition of unauthorised collection of tax, the demand now made by the Southern Railways is in violation of the provisions of the CGST Act and therefore, the writ petitions are to be allowed.
The facts admitted are that the land belongs to the Southern Railways, the writ petitioners were given license to run vehicle parking and while entering into an agreement of license, the Southern Railways, in clear terms, stated that the contractors are liable to pay taxes as applicable under the CGST Act. In turn, the contractors are also liable to pay the service tax, if they are falling within the ceiling prescribed under the Act. Thus, the Railway has to pay tax for the services rendered to the contractors by collecting license fees and the contractors, in turn, have to pay service tax for collection of parking fee from the end users - This being the pattern of liability to pay tax, which is contemplated under the provisions of the Act, there is no question of granting exemption to anyone of the persons, either the Railways or the contractors, who all are licensees and permitted to run the vehicle parking areas and therefore, their liability under the provisions of the Act, is unambiguous.
In the present cases, liability of the licensees are well enumerated with reference to Section 7 and Schedule II to the Act. As discussed above, when the liability is unambiguous and the nature of services are also falling within the scope of Section 7 r/w Schedule II, then there is no reason to consider the claim of the writ petitioners for invoking Section 32 of the Act - Section 32 deals with prohibition of unauthorised collection of tax. Here the question of unauthorised collection does not arise at all. When the collection of tax is in consonance with the provisions of the Act, the provisions of Section 32, cannot be invoked at all. Thus, the arguments with reference to Section 32 stands rejected.
The provisions of the CGST Act is crystal clear that the services rendered are liable for payment of service tax and more specifically, with reference to Section 7 r/w Schedule II, the services rendered by the Railways to the writ petitioners/contractors and the writ petitioners/contractors to the end users, are falling within the scope of Section 7 r/w Schedule II of the CGST Act and therefore, all the writ petitioners are liable to pay tax, as applicable and as demanded by the Southern Railways.
There is no scope for entertaining the grounds as raised in the present writ petitions and consequently, all the writ petitions are devoid of merits and accordingly, they stand dismissed.
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