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GST - Case Laws
Showing 41 to 60 of 160 Records
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2021 (7) TMI 1057
Jurisdiction or authority to block any input tax credit - Reason to believe - purchase with respect to which, adjudication proceedings are underway against the petitioner in accordance with Section 74 of the UP GST Act, 2017 - manner in which an amount may be determined to be due and recoverable from the petitioner - Rule 86A(1)(a)(i) of the State/Central Goods and Services Tax Rules, 2017 - HELD THAT:- Plainly, there can be no dispute that the Act prescribes the manner for determination of any tax not paid or short paid. Section 74 of the Act provides for determination of input tax credit wrongly availed or utilized by reason of fraud etc through the process of adjudication. Section 78 of the Act further mandates that any amount that may be determined under Section 74 of the Act may not be recovered for a period of three months from the date of service of the adjudication order.
Here, it may be seen that the recovery provision are contained in Section 79 and the enabling Rules. The recovery Rules fall under Chapter XVIII of the State GST Rules 2017 being Rules 142 to 161. On the other hand, Rule 86-A falls under the Chapter heading IX of the Rules regarding payment of tax - the word 'available' used in the first part of sub-Rules of Rule 86-A would always relate back in time when the assessee allegedly availed input tax credit either fraudulently or which he was not eligible to avail. It does not refer to and, therefore, it does not relate to the input tax credit available on the date of Rule 86-A being invoked. The word "has been" used in Rule 86-A (1) leave no manner of doubt in that regard.
Reason to believe - HELD THAT:- The correctness or otherwise or the sufficiency of the 'reason to believe' is not subject matter of dispute in the instant proceedings. It is the relevancy of that reason to believe with which we are in agreement with Mr. Ghildiyal. Thus, at present, the 'reason to believe' is based on material with the competent authority indicating non-existence of the selling dealer. It is thus alleged the petitioner was not eligible to avail input tax credit as the seller M/s Darsh Dairy & Food Products, Agra was a nonexistent dealer.
Purchase with respect to which, adjudication proceedings are underway against the petitioner in accordance with Section 74 of the UP GST Act, 2017 - HELD THAT:- The operative portion of sub-rule (1) of Rule 86-A limits the exercise of power (by the authorized officer), to the amount that would be sufficient to cover the input tax that, according to the revenue, had either been fraudulently availed or to which the assessee was not eligible. It is an amount equal to that amount which has to be kept unutilised - the provision of Rule 86-A is not a recovery provision but only a provision to secure the interest of revenue and not a recovery provision, to be exercised upon the fulfillment of the conditions, as we have discussed above, we are not inclined to accept the further submission advanced by the learned counsel for the petitioner that there is any violation of the principle when a legislative enactment requires an act to be performed in a particular way it may be done in that manner or not at all.
It also stands to reason, if there is no positive credit standing in the electronic credit ledger on the date of the order, passed under Rule 86-A, that order would be read to create a lien upto limit specified in the order passed as per Rule 86-A of the Rules. As and when the credit entries arise, the lien would attach to those credit entries upto the limit set by the order passed under Rule 86- A of the Rules. The debit entry recorded in the electronic credit ledger would be read accordingly.
Petition dismissed.
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2021 (7) TMI 1037
Maintainability of petition - sufficient time was not afforded to the petitioner to represent his case - ex-parte order - principles of natural justice - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, it is opined that the order is bad in law. Here is violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case - also the 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.
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2021 (7) TMI 1033
Maintainability of petition - sufficient time was not afforded to the petitioner to represent his case - ex-parte order - principles of natural justice - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, it is opined that the order is bad in law. Here is violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case - also the 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.
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2021 (7) TMI 998
Provisional attachment of bank accounts and immovable properties - petitioner has already deposited the amount of deposit for filing the appeal - Section 83 of CGST Act - HELD THAT:- Considering the affidavit-in-reply filed by the respondent to the effect that the petitioner firm is liable to pay the tax with interest and penalty, in aggregate ₹ 1,09,61,102/- and the department has attached the movable and immovable properties to the tune of ₹ 75,48,541/-, which include the attachment of two bank accounts i.e. of Union Bank of India account, having balance amount of ₹ 4,16,050/- and Canara Bank account with balance of ₹ 5,386/- and two other immovable properties worth ₹ 55,37,123/- and ₹ 15,89,982/- respectively, the Court is of the opinion that the interest of the Revenue would still remain substantially protected even if, at present, without going into the merits of the case, the provisional attachment in respect of two bank accounts is removed. It may be noted that the petitioner has already deposited the amount of deposit for filing the appeal under section 107 of the said Act.
The provisional attachment in respect of the bank account of the Canara Bank is removed - provisional attachment in respect of the two immovable properties shall continue.
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2021 (7) TMI 992
Grant of Regular Bail - input tax credit - fictitious firms - fake and bogus invoices - section 132 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The Court looking to the seriousness of the offence and lack of change in circumstances, rejected the application of the applicant.
In the considered opinion of this court, after the aforementioned orders were passed rejecting the applications, no substantial change in circumstances or any exceptional aspect has been pointed out by the applicant, which would warrant his release on bail under the provision of section 439 of the Cr.P.C.
Application dismissed.
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2021 (7) TMI 988
GST registration - registration was granted but at a later date i.e., 09.03.2018 - inability to comply with the requirements in terms of the statutes for the period from 01.07.2017 to 09.03.2018 - HELD THAT:- There are merit in the submission that the fresh registration on 09.03.2018 having been obtained by the petitioner in terms of the interim order issued, an opportunity for statutory compliance for the period prior to 09.03.20218 ought to be provided. At the same time, there is substance in the submission made on behalf of the respondents that it is technically impossible to make changes in the GST portal for providing opportunity for an individual assessee to comply with the statutory requirements from a date prior to its registration.
The only possible manner in which the issue can be resolved is for the petitioner to pay tax for the period covered by provisional registration from 01.07.2017 to 09.03.2018 along with applicable interest under Form GST DRC-03 dealing with intimation of payment made voluntarily or made against the show cause notice (SCN) or statement. If such payment is effected, the recipients of the petitioner under its provisional registration (ID) for the period from 01.07.20217 to 09.07.2018 shall not be denied ITC only on the ground that the transaction is not reflected in GSTR 2A. It will be open for the GST functionaries to verify the genuineness of the tax remitted and credit taken.
This writ petition is filed by one of the concerns that had purchased goods from the petitioner in W.P.(C) No.17235 of 2020. The grievance is regarding issuance of Ext.P2 intimation in Form GST DRC-01A, despite payment of tax in full for the purchases effected. In view of the directions in W.P.(C) No.17235 of 2020, nothing survives for consideration herein.
Petition closed.
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2021 (7) TMI 973
Classification of supply - supply of services or not - pallets, crates and containers leased by CHEP India Private Limited located and registered in Karnataka to its other GST registration located across India - Valuation for calculation of GST - GST charged on lease charges or the value of equipment in terms of Section 15 of the CGST Act and KGST Act read with relevant Rules - documents that should accompany the movement of goods from CUPL, Karnataka to CIPL, Kerala - movement of equipment from CIPL, Kerala to CIPL, Tamil Nadu on the instruction of CIPL, Karnataka - movement of goods or not.
Whether the transfer of assets on lease to his own branches having separate registrations in other States could be termed as “Lease” and accordingly taxable as supply of services? - HELD THAT:- Section 9(1) of the CGST Act, 2017 mandates that the levy of tax on the intra-State transactions of supply and Section 22 and 24 requires all taxable persons who are located in a State to obtain registration in that State. Since GST is a tax within the State and registrations are State-specific, the transactions of interstate nature are brought under the IGST Act and the Centre is liable to collect the tax and apportion the same to the Centre and States based on the destination of such goods or services as GST is a consumption based tax. Therefore all stock transfers from one State to another state are treated as supplies and would be covered under the term “transfer”. Since the registrations are state-specific, the transactions between the two entities of the same concern would be covered under deemed supplies between two deemed distinct persons.
Since the applicant states all the goods are purchased in the account of CIPL, Karnataka, as per the provisions of the CGST Act, 2017, the goods are held to be in the account of CIPL, Karnataka as owned assets and in the account of CIPL, Kerala as leased assets, for which CIPL, Kerala is liable to pay consideration for the lease transactions - Further, since the two entities are deemed to be distinct persons, and the transfer of goods are effected from CIPL, Karnataka to CIPL, Kerala without any transfer of ownership of such goods, the same amounts to supply of service as per entry no. 1(b) of the Schedule II to the CGST Act which states that “any transfer of right in goods or of undivided share in goods without transfer of title thereof, is a supply of services.”
Valuation of supply - HELD THAT:- The transaction value which is the price actually paid cannot be treated as the value of supply as the supplies are between the related persons, i.e. the branches of the same company - the recipient, CIPL, Kerala who is the recipient of the goods is eligible for full input tax credit on the transaction between the applicant and the CIPL, Kerala and hence the value declared in the invoice would be the value of supply of goods or services or both as per the second proviso to Rule 28 and hence would be treated as the value of such supply.
What documents should accompany the movement of goods from CIPL, Karnataka to CIPL, Kerala? - HELD THAT:- In the pertinent case, as the goods are moving out of the State as a consequence of a lease transaction which is a service, the applicant has the option of issuing the tax invoice either before the provision of service or after the provision of service and in case the applicant opts to issue the tax invoice after the provision of service, the time limit in terms of Rule 47 is applicable. This means to say, that there is a possibility that the invoice may not be issued at the time of provision of service.
It is seen that the applicant is not supplying goods, but services which involve the movement of such goods given on lease/ rent and hence they are liable to issue a delivery note as per Rule 55 at the time of removal of such goods for the purposes of renting. Further, they shall also generate an e-way bill for movement of such goods as per Section 138(1) based on the details of such delivery note before the movement of such goods and consignment value of the goods shall be the market value of such goods and not the value of supply of services involved in such transaction.
Movement of goods from CIPL, Kerala to CIPL, Tamil Nadu on the instruction of CIPL, Karnataka - HELD THAT:- CIPL, Kerala would be acting in two capacities, first as an independent entity under the CGST Act for the leased goods while the lease contract of the specific goods is in force and next as a bailee of CIPL, Karnataka. Once the lease contract is over and the goods are no more under the control of CIPL, Kerala. If the goods are to be transferred immediately after the contract of lease is over, the CIPL, Karnataka should enter into the lease transaction with the CIPL, Tamil Nadu and raise a delivery note and e-way bill with ship from address as “CIPL, Kerala” and Ship to address as “CIPL, Tamil Nadu” for those specific goods which are given on lease or rent and in effect, it would amount to CIPL, Karnataka picking the goods and sending to CIPL, Tamil Nadu.
It cannot be said that the goods are moving not as a result of supply under section 7 of the CGST Act, 2017. It cannot be termed as a mere movement without any involvement of supply and the said transaction of supply of goods on rental or lease basis by CIPL, Karnataka to CIPL, Tamil Nadu and is liable to tax in the hands of CIPL, Karnataka if the transaction is between CIPL, Karnataka and CIPL, Tamil Nadu. Further the services provided by CIPL, Kerala to CIPL, Karnataka in facilitating the transportation of goods to CIPL, Tamilnadu are exigible to GST - from the applicant's point of view, his lease contract with CIPL, Kerala is continuing and the goods leased should ultimately come back to the applicant from CIPL, Kerala and CIPL, Kerala is liable to pay lease rentals to CIPL, Karnataka.
Documents needed to be carried - HELD THAT:- The documents to be carried for the movement is a delivery note and e-way bill issued by CIPL, Karnataka if the movement is as a result of supply by CIPL, Karnataka or a delivery note and e-way bill issued by CIPL, Kerala is the movement is as a result of supply by CIPL, Kerala.
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2021 (7) TMI 966
Cancellation of registration of petitioner - non-payment of interest - delayed filing of returns GSTR-3B - HELD THAT:- There is no dispute that due to non payment of the interest liability for the period from October, 2018 to April, 2020 for delayed filing of returns GSTR-3B, the petitioner is required to make the payment and only thereafter, as submitted by Mr. Keyal, the registration of the petitioner shall be restored by the respondent GST. On the other hand, the submission of Ms. Bhattacharjee that due to striking out of the registration of the petitioner he could not collect the contractual dues from the various organizations against the contractual job also cannot be disbelieved.
Let the petitioner approach the concerned authority more specifically the respondent No. 3 along with an application to permit the petitioner to pay the interest liability in installment as a special case keeping in view the pandemic situation arising out of Covid-19 - Petition disposed off.
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2021 (7) TMI 929
Classification of goods - HSN code - rate of tax - wastes - Cinder Half-burnt Coal / Char Dolachar - ESP / Bag Filter Dust generated during the process of manufacturing Sponge Iron - levy of GST Compensation Cess @ ₹ 400/- per tonne be applicable on sale of waste.
HELD THAT:- The Hon’ble Apex Court of India in the case of UNION OF INDIA VERSUS AHMEDABAD ELECTRICITY CO. LTD. [2003 (10) TMI 47 - SUPREME COURT] held that unburnt or partly burnt pieces of coal have no capacity to produce flame because of low or reduced calorific value and therefore classified such coal/dust as Cinder.
Further, Hon’ble CESTAT in the case of CC, CE & ST, HYDERABAD-II VERSUS M/S REACTIVE METALS OF INDIA PVT LTD., & M/S BINJUSARIA SPONGE & POWER PVT LTD. [2017 (9) TMI 1547 - CESTAT HYDERABAD] held that by –Product Char – Dolochar emerging during manufacture of Sponge Iron is classifiable under CETH 2619 00 90 - Similar stand has been taken by Hon’ble CESTAT in the case Bellary Steel &Alloys Ltd v. CCE.,[2005 (10) TMI 180 - CESTAT, BANGALORE]. W.R.T ESP bog/filter dust, we hold that they are also classifiable under 2619 00 90.
Thus, both unburnt or half-burnt coal and dust falls under entry 28 of Schedule III of Notification No.01/2017 Dated: 28.06.2017 and attracts 18% tax under IGST and 9% under CGST/SGST Acts.
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2021 (7) TMI 928
Levy of GST - time of supply - point of taxation - period involves both pre-GST period as well as post GST regime - flats allotted to land owner by the builder by way of supplementary agreement on 15.05.2017(i.e., before GST regime) - construction will be completed during GST regime - supplementary agreement entered by the developer with a land owner, is allotment letter or not - liability under existing law - exemption under present law.
HELD THAT:- From the understanding of the phrase ‘Constructed complex’ it follows that such a complex, building or civil structure should first be in place so that its possession or the rights in it may be transferred by the developer to the person supplying development rights - such transfer of possession or transfer of right in the building shall be accomplished by a conveyance deed or similar instrument such as allotment letter.
As per Notification No.4/2018 the time of supply to determine liability to pay tax on development rights by a land owner to a developer is the date on which the building or the rights in an existing building are handed over to the land owner by way of a conveyance deed or an allotment letter - If the applicant has handed over the building after inception of CGST & SGST, then the liability to pay tax will arise under CGST & SGST.
What is the Time of supply and point of taxation with respect to flats allotted to land owner by the builder by way of supplementary agreement on 15.05.2017(i.e., before GST regime) where as the construction will be completed during GST regime? - HELD THAT:- As per Notification No.4/2018 Dt:25.01.2018 the date of transfer of possession of the building or the right in it to the person supplying development rights will be the time of supply and the liability to pay tax on the said services shall arise on that day. The time of supply shall not be at any other time.
Is this date to be concluded as the date of allotment for payment of service tax in respect of construction services provided to landlord ignoring the fact that the construction was continued subsequently from May, 2017 to November, 2018? - HELD THAT:- No, the applicant has to pay tax as per the time of supply indicated above.
Will it be sufficient and adequate compliance, if the appellant complies law and remit entire service tax on the entire area earmarked to landlord? - HELD THAT:- No, the applicant has to pay tax as per the time of supply indicated above.
What is the ‘Constructed complex’ referred to in the notification? - HELD THAT:- ‘Constructed complex’ refers to a building or a completed structure.
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2021 (7) TMI 926
Seizure of heavy vehicle - Ashok Leyland trucks - e-way bills for these heavy vehicles not present - it was asserted that the goods were being brought within the State by contravening the provisions of Tripura State General Sales Tax Act, 2017 - intent to evade tax - HELD THAT:- Superintendent of Taxes has adopted a procedure which is wholly irregular. In the show cause notice dated 15th May 2021, he had not elaborated the ground that the e-way bills did not carry the reference to the temporary registration numbers duly certified by the State RTO authorities, a ground which he raised in subsequent communication dated 20th May 2021. The petitioner, therefore, did not have opportunity to meet with these grounds. Further, he has raised a demand for unpaid tax with penalty and sought to recover the same from the consignee - This is wholly irregular. Demand notice must be preceded by an order of assessment, an order which can also be challenged by the person aggrieved before the appellate authority.
In the present case the initial show cause notice which the Superintendent of Taxes issued to the petitioner did not contain the grounds which were mentioned in the later communication dated 21st May 2021. The reply that the petitioner therefore filed to the show cause notice, on 19th May 2021, did not cover the grounds and allegations made in the communication dated 20th May 2021 - Though the Superintendent of Taxes is permitted to carry out proper assessment and pass an order of assessment, the petitioner must be given an additional opportunity to file reply.
Demand notice dated 29th May 2021 is set aside - For the purpose of carrying out assessment, the show cause notice, dated 15th May 2021 read with the communication dated 20th May 2021, from the Superintendent of Taxes to the petitioner shall be treated as a show cause notice - petition disposed off.
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2021 (7) TMI 925
Refund claim - petitioner was not heard by the appellate authority before passing the impugned order - email regarding personal hearing was sent to the wrong email address - principles of natural justice - HELD THAT:- The contentions of learned counsel for petitioner is correct inasmuch as the notice was sent to the wrong email address.
The appeal is remanded back to the Joint Commissioner, Appeals – I, Central GST, Delhi for a de novo adjudication. The Joint Commissioner, Appeals – I, Central GST, Delhi shall decide the matter in accordance with law by way of a reasoned order after giving an opportunity of hearing to the petitioner - Petition allowed by way of remand.
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2021 (7) TMI 924
Search and seizure - Gold Flake Super Star cigarettes - illicit trade/supply - jurisdiction of CGST Delhi North Commissionerate - reasonsto believe - Whether or not, requisite statutory ingredients were present to enable the concerned respondents to exercise the power vested upon them under Section 67(2) of the CGST Act?
HELD THAT:- The first proviso to subsection (2) of Section 67 states that wherever it is not practicable to seize any such goods, the proper officer or any officer authorized by him, may serve on the owner or the custodian of the goods, an order that he shall not remove, part with, or otherwise deal with the goods except with the prior permission of such officer - What is crystal clear upon a perusal of the provisions of subsection (1) and (2) of Section 67 is that the expression “reasons to believe” controls the exercise of powers under the said provisions. Therefore, unless the basic jurisdictional facts exist, in a case, the power conferred under subsections (1) and (2) of Section 67 cannot be exercised. The expression "reasons to believe" is found in various statutes concerned with revenue laws, and therefore, has undergone a forensic analysis, metaphorically speaking, by Courts, in several cases.
What is clear is that before the proper officer not below the rank of Joint Commissioner decides to either conduct the search and seizure himself or authorize another person in writing to do the same, he should have, reasons to believe, that “any” goods are liable to be confiscated or “any” documents or books or things which, are useful or relevant to any proceedings under the CGST Act, are secreted in "any" place - In this case, the search and seizure was conducted by an Inspector of the CGST Delhi North Commissionerate based on the authorization of the Additional Commissioner of the same department i.e. CGST Delhi North Commissionerate. Admittedly, in the instant case, no investigations were carried out against RJT by the CGST Delhi North Commissionerate. The authorization, (and qua which there is no dispute) was based on the communication dated 05.03.2021 addressed by Joint Commissioner (AE), Gautam Budh Nagar to the Additional/Joint Commissioner, CGST Delhi North Commissionerate.
Both the order of seizure of documents and the order of prohibition, simply replicate the language of subsection (2) of Section 67 and the corresponding Rule i.e. Rule 139(2). Thus, the very trigger for conducting the search [i.e. the authorization issued by the Additional Commissioner, CGST Delhi North Commissionerate] was flawed and unsustainable in law - there was a reasonable explanation as to why the stock register was not found at the premises on the day [ i.e. 05.03.2021] when the search was conducted by CGST Gautam Budh Nagar/Noida with the assistance of the Delhi North Commissionerate.
The Additional Commissioner, CGST Delhi North Commissionerate exercised his powers for according authorization to conduct search and seizure, at RJT's premises, even though the jurisdictional ingredients were absent. The request of Joint Commissioner (AE), Gautam Budh Nagar conveyed through the communication dated 05.03.2021, was only to ascertain as to whether RJT, which was the L2 supplier of M/s Mridul Tobie Inc., was in existence. There was no independent application of mind by the Additional Commissioner, CGST Delhi North Commissionerate - The officers concerned should bear in mind that the search and seizure power conferred upon them, is an intrusive power, which needs to be wielded with utmost care and caution. The legislature has, therefore, consciously ringfenced this power by inserting the controlling provision, i.e., “reasons to believe”.
The application filed on behalf of RJT [i.e. CM No. 16668/2021] which inter alia seeks a direction for setting aside the order dated 12.05.2021, directing the provisional release of goods, based on the terms contained therein - the search and seizure conducted by CGST Delhi North Commissionerate are declared unlawful - Petition disposed off.
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2021 (7) TMI 923
Jurisdiction assigned to State Tax Officers in view of the decisions taken by the GST - Circular No. 01/2017 dated 20.09.2017 - constitutional body constituted under Article 279A of the Constitution of India - proceeding/ inquiry initiated by the Respondents against the Petitioner, legal or not - section 6(2)(b) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- This Court is of the view that as the Impugned Summons have been withdrawn and the inquiry proceedings have been closed, the issue sought to be adjudicated upon by the petitioner cannot be decided in a vacuum. Consequently the present writ petition and application are disposed of leaving the aforesaid question of law open to be decided in the event a fresh proceeding is initiated or summons are issued to the petitioner by the Central Tax Officers (GST Officers).
The order be uploaded on the website forthwith.
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2021 (7) TMI 911
Revenue appeal against the decision of Single member bench of HC - Transition of unavailed input tax credit - non filing of TRAN-1 - section 140 of the Central Goods and Service Tax Act, 2017 - HELD THAT:- The input tax credit is required by law to be credited to the electronic credit ledger of an assessee. Failure to credit the input tax credit is an infraction of section 140(1) and to Rule 117(3) of the GST Rules. Input tax credit is an asset in the hands of the dealer. A registered dealer had a statutory right under the VAT regime to get refund. Unutilized input tax credit of the erstwhile regime can be denied from being credited to the electronic credit ledger only under the contingencies mentioned in the proviso to section 140(1) - It is axiomatic that computer literacy has not reached its pinnacle in our country. Technical glitches at the transition stage to GST should not affect above said statutory right of dealers. Attempt must always be made not to deprive a dealer from a bonafide claim, through technicalities.
It is profitable in this context to refer to certain observations of the High Court of Punjab & Haryana in ADFERT TECHNOLOGIES PVT. LTD. VERSUS UNION OF INDIA AND ORS. [2019 (11) TMI 282 - PUNJAB AND HARYANA HIGH COURT] where it was held that By not allowing the right to carry forward the CENVAT credit for not being able to file the form GST Tran-1 within the due date may severely dent the writ-applicants working capital and may diminish their ability to continue with the business. Such action violates the mandates of Article 19(1)(g) of the Constitution of India.
Granting an opportunity of hearing is only to enable the process of decision-making simpler. It is one of the basic principles of natural justice. In the process of rendering justice, an opportunity of hearing is a basic postulate - appeal dismissed.
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2021 (7) TMI 909
Transition of unutilised input tax credit - petition is sought to be dismissed on account of non-joinder of necessary/proper parties - Section 140 of the Central Goods and Service Tax Act, 2017 - HELD THAT:- The writ petition is disposed off with a direction to the IT Redressal Committee of GST Council to take a call on the petitioner's request for transition input tax credit in accordance with law, after affording an opportunity of hearing, by taking into consideration the provisions of Section 140 of the Central Goods and Service Tax Act, 2017, within a period of forty five (45) days from the date of receipt of a certified copy of the judgment.
Writ petition stands disposed of.
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2021 (7) TMI 869
Refund of excess paid ITC - refund rejected on the ground that the excess payment of ITC can be re-credit to ITC ledger only by GST PMT-03 as per sub rule (4A) of Rule 86 CGST Rules,2017 as amended vide N/N. 16/2020 dated 23.03.2020 - Ambiguity in the order - HELD THAT:- On examination of reconciliation chart in respect of tax liability of the appellant, generated by appellant through GSTN common portal, as well perused the ledger account of balance sheet with regard to output supply in month of October-2019 it is found that the appellant had made supply only two suppliers on 21.10.2019 and 24.10.2019, wherein GST payable were ₹ 9,093.76 only and same are being reflected in GSTR-1, however, GST were paid through ITC ₹ 2,69,212.54 and same are also being reflected in GSTR-3B. Therefore, in view of the records it is found that the appellant had paid excess tax of ₹ 2,60,118.24 through ITC in month of October-2019.
On going through the provisions of Rule 86 (4A) read with Rule 92 (1A) of CGST Rules, it is found that if any registered person has claimed any refund amount paid as Tax wrongly paid or paid in Excess for which debit has been made from the Electronic Credit Ledger the said amount shall be re-credited by an order in Form of CGST PMT-03 to the Electronic Credit Ledger of the registered person by the proper officer.
There are force in the appellant contention that excess tax paid through ITC should be re-credited in Form PMT-03 - appeal allowed - decided in favor of appellant.
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2021 (7) TMI 867
Refund of deposited amount - petitioner had deposited 10% of the disputed amount of tax as a pre-condition for filing the appeal - HELD THAT:- The petitioner is ready and willing to deposit an additional 20% of the remaining amount of tax in dispute in compliance of the requirements under Section 112 (8) of UP GST Act.
List for hearing in the second week of February, 2020.
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2021 (7) TMI 864
Constitutional Validity - Section 9 of the Constitution (One Hundred and First Amendment) Act, 2016 - Serial No. 9(ii), its proviso & para No. 4 of the Explanation in Notification No. 8/2017-Integrated Tax (Rate) dated 28.06.2017 - Entry 10 of the Notification No. 10/2017-Integrated Tax (Rate) dated 28.06.2017 - levy of Integrated-tax / IGST - services by way of transportation of goods by vessel from a place outside India, up to custom station of clearance of India - ‘Ocean Freight services - reverse charge mechanism - deeming fiction of equating import of goods & services into India with inter-state trade & commerce - ‘Importer’ within meaning of Section 2(26) of the Custom Act, 1962 deemed as ‘recipient’ of service - HELD THAT:- Reliance placed in the case of MOHIT MINERALS PVT LTD VERSUS UNION OF INDIA & 1 OTHER [2020 (1) TMI 974 - GUJARAT HIGH COURT] where it was held that impugned Notification No.8/2017 – Integrated Tax (Rate) dated 28th June 2017 and the Entry 10 of the N/N.10/2017 – Integrated Tax (Rate) dated 28th June 2017 are declared as ultra vires the Integrated Goods and Services Tax Act, 2017, as they lack legislative competency. Both the Notifications are hereby declared to be unconstitutional.
This petition is disposed of in terms of the decisions given by the Gujarat High Court in Mohit Minerals Private Limited.
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2021 (7) TMI 863
Constitutional Validity - Sr. No. 9(ii) of the N/N. 8/2017-Integrated Tax (Rate) dated 28.06.2017 - Sr. No. 10 of the Notification No. 10/2017 – Integrated Tax (Rate) dated 28.06.2017 - levy of Integrated-tax / IGST - services by way of transportation of goods by vessel from a place outside India, up to custom station of clearance of India - ‘Importer’ within meaning of Section 2(26) of the Custom Act, 1962 deemed as ‘recipient’ of service - HELD THAT:- Reliance placed in the case of MOHIT MINERALS PVT LTD VERSUS UNION OF INDIA & 1 OTHER [2020 (1) TMI 974 - GUJARAT HIGH COURT] where it was held that impugned Notification No.8/2017 – Integrated Tax (Rate) dated 28th June 2017 and the Entry 10 of the N/N.10/2017 – Integrated Tax (Rate) dated 28th June 2017 are declared as ultra vires the Integrated Goods and Services Tax Act, 2017, as they lack legislative competency. Both the Notifications are hereby declared to be unconstitutional.
This petition is disposed of in terms of the decisions given by the Gujarat High Court in Mohit Minerals Private Limited.
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