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GST - Case Laws

Showing 81 to 100 of 1928 Records

• 2022 (12) TMI 857 - ALLAHABAD HIGH COURT
  

  Cancellation of registration of petitioner - non-furnishing of return for a contentious period of six months under Section 39 of the Central Goods and Services Tax Act - HELD THAT:- There are no reason whatsoever in the impugned order for cancelling the registration fo the petitioner. The only reason stated that the petitioner did not respond to the show cause notice. This Court is of the considered view that even in case that the petitioner did not given response to the show cause notice it was incumbent to the competent authority to consider the fact of case and come to the conclusion that the facts necessitate cancellling of the registration of the petitioner in exercise of powers under Section 39 of the CGST Act.

  The impugned order dated 03.01.2022 is illegal and hence in the aforesaid circumstances, the same is set aside - the matter is remitted to the adjudicating authority and is further directed to the petitioner to file his reply to show cause notice dated 02.12.2021 within three weeks for today - petition allowed by way of remand.

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• 2022 (12) TMI 856 - ALLAHABAD HIGH COURT
  

  Violation of principles of natural justice - validity of assessment order - no personal hearing was accorded to the petitioner before passing order impugned despite the request made - HELD THAT:- From perusal of Section 75(4) of the Act, 2017, it is evident that opportunity of hearing has to be granted by the authority under the said Act where either a request is received from the person chargeable with tax or penalty for opportunity of hearing or where any adverse decision is contemplated against such person. Thus, where an adverse decision is contemplated against a person even he need not to request for opportunity of personal hearing and it is mandatory for the authority concerned to afford opportunity of personal hearing before passing any order adverse to such person. In view of the legislative mandate, in case of non-affording of opportunity of hearing by the assessee by intimating him the date, time and venue for personal hearing, the assessment order was found to be in violation of the principles of natural justice.

  The Article 226 of the Constitution of India confers discretionary power on the High Court, however, in case of availability of alternative remedy, as self-restraint, not as a rule of law, the High Court could not entertain the writ petition and may relegate the person approaching it to avail the alternative remedy. However, there are certain exceptions to the rule of alternative remedy as settled by the Apex Court in a catena of decisions and one of them is in violation of principles of natural justice, which is prejudicial to the interest of the writ petitioner - It is evident that the order of assessment dated 13.9.2022 was passed by the respondent no.2 under Section 74 of the Act, 2017 for the assessment year 2017-18 without affording opportunity of personal hearing as sought by petitioner. The act of the respondent no.2 in denial of the opportunity of personal hearing to the petitioner is in clear contravention of the statutory mandate under Section 75(4) of the Act, 2017. The element of principles of natural justice incorporated in the statutory provisions cast a mandate on the statutory authority to follow the procedure for finalization of its action. The assessment order dated 06.09.2022 as rectified on 13.9.2022 is, thus, found to be illegal being in contravention of provisions of Section 75(4) of the Act, 2017 and is hereby set-aside.

  The matter is remitted back to the respondent no.2 to pass a fresh order strictly in accordance with law after affording opportunity of hearing to the petitioner herein - Petition allowed by way of remand.

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• 2022 (12) TMI 855 - GUJARAT HIGH COURT
  

  Revocation of cancellation of registration - Violation of principles of natural justice - cryptic show cause notice as well as the cryptic order - HELD THAT:- Noticing the fact that here also the initial notice which has been issued is of one line “Any Taxpayer other than composition taxpayer has not filed returns for a continuous period of fix months.” And the order passed for cancellation of registration also of half life “Your request is no consider.”

  This is in clear violation of principle of natural justice, as this Court in detailed has already been made out a case of Aggarwal Dyeing and Printing Works [2022 (4) TMI 864 - GUJARAT HIGH COURT] and thereafter various cases. This Court also in such a matter has brought this fact to the notice of learned AGP and it has been given to understand to this Court that now it has been circulated to all concerned. This notice is of October 2021 and therefore, this mistake.

  This petition is ALLOWED solely on the ground of violation of the principles of natural justice.

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• 2022 (12) TMI 854 - GUJARAT HIGH COURT
  

  Seeking cancellation of GST registration of petitioner - violation of principles of natural justice - HELD THAT:- In the instant case also not only the civil but the penal consequence pursuant to the impugned order of cancellation of certificate of registration, the petitioner would be liable. This judgment has come in the month of February 2022, the petition has been preferred on 14.11.2022 and the reply of the respondent has come before this Court on 28.11.2022. There is not a whisper of Aggarwal Dyeing and Printing Works [2022 (4) TMI 864 - GUJARAT HIGH COURT] nor the officer concerned has taken note of the fact that this Court has in Aggarwal Dyeing and Printing Works (supra) and in subsequent decisions has emphatically disapproved this conduct on the part of the officers. This unpalatable apathy to the principle of natural justice would need surely quick rectificational approach on the part of the officers concerned.

  This petition is allowed on the ground of principle of natural justice.

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• 2022 (12) TMI 853 - GUJARAT HIGH COURT
  

  Attachment of Bank Account of petitioner - appeal filed within time limitation or not - ex-parte assessment order - power to condone the delay - HELD THAT:- The appellate authority concerned, has the power to condone the delay in presenting the appeal if it had done beyond the period of three months or six months as the case may be and allowed the further period of one month. In the instant case, the period was of 05 months and 22 days in presenting the appeal.

  This Court in Aggarwal Dyeing and Printing Works v. State of Gujarat [2022 (4) TMI 864 - GUJARAT HIGH COURT], considered the question of cancellation of registration on account of nonspeaking order which the officer concerned had passed, the Court while directing that the department ought to have incorporated specific details to contents of a show cause notice as in prudent person would fail to respond to a show cause notice bereft of details, the Court also having an occasion to consider the issue of limitation to certain extent. It question of delay of more than 02 years, the writ applicant had preferred the appeal before the appellate authority by submitting the FORM GST APL-01 under Section 107 of the Act, 2017 read with Rule 108(1) of the Rules framed there under.

  The Court examined the entire scheme of Act and held that where specific forms have been prescribed at each stage right form registration, cancellation and revocation of cancellation of registration, the same are to be strictly adhered to. At the same time, it is equally important that the Proper Officer empowered under the said Act adheres to the principles of natural justice.

  The right of appeal beyond the period of 30 days and the issue of limitation while dealing with Section 107 of GST Act is a larger issue which needs to be addressed. Noticing, particularly, the period of Pandemic and the order of the Apex Court in this relation in a given case to be applied to each matter, in our opinion, the appellate authority could have taken into consideration this entire period of Pandemic to condone the delay as the date of knowledge. So far as the case of the petitioner is concerned, the date of knowledge is 6.9.2022 and the bank attachment had been made on 6.9.2022 and he thereafter had approached the authority concerned. If his date of knowledge is taken into consideration, the delay deserves to be condoned.

  It is apt to know the period of limitation to question the decision of the authority concerned was long over when for the first time the entire aspect had come to the knowledge of the present petitioner on 6.9.2022. It was simply not feasible to prefer the appeal against the order of the respondent authority asked on 15.7.2021 - Petition allowed.

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• 2022 (12) TMI 852 - GUJARAT HIGH COURT
  

  Cancellation of GST registration of petitioner - restraint to carry out investigations since the investigation by Directorate General of GST Intelligence (DGGI) is already pending - HELD THAT:- There is no provision under the GST Act which permits respondents to initiate proceedings for cancellation of registration second time and therefore, the order dated 03.08.2022 is ex-facie illegal and without jurisdiction - The show-cause notice dated 17.05.2022 proposing to cancel the registration is bereft of any reasons, and therefore, it is in clear violations of principles of natural justice.

  There are no specific reason for which proceedings for cancellation of registration has been initiated for the second time. Language of the show-cause notice dated 17.05.2022, does not communicate the reasons and the reasons are so general, therefore vague in nature. We are also mindful of the fact that the petitioner earlier also in response to the notice, dated 28.09.2021, had replied intimating the respondent authorities that pending DGGI investigation, all the documents are lying with the Office of DGGI and for the second time in response to the notice dated 17.05.2022, he had shown his inability to produce the documents for the very same reason. Further, in the affidavit too, no explanation was provided that under which provision respondent had initiated proceedings proposing cancellation of registration.

  This Court in case of Aggarwal Dyeing [2022 (4) TMI 864 - GUJARAT HIGH COURT] and thereafter, in series of decisions has reiterated that the reasons are heart and soul of the order and non-communication of the same itself amounts to denial of reasonable opportunity of hearing resulting into miscarriage of justice. Applying the same principle, in our opinion, the show-cause notice dated 17.05.2022 being without any reason, the same is bad in law and deserves to be quashed and set aside and hereby quashed and set aside accordingly. The order dated 03.08.2022, of cancellation of registration is also quashed and set- aside. The respondents are directed to restore the registration of the petitioner forthwith.

  Application disposed off.

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• 2022 (12) TMI 851 - GUJARAT HIGH COURT
  

  Violation of principles of natural justice - cancellation of GST registration of petitioner - HELD THAT:- Noticing the cryptic notice as also the order which again is very cryptic and impugned in this petition applying the decision of this Court Aggarwal Dyeing and Printing Works [2022 (4) TMI 864 - GUJARAT HIGH COURT] and the directions issued by this Court, according to us, challenge deserves to be entertained. This amounts to violation of principle of natural justice as the person concerned would have no opportunity to deal with the matter as otherwise required of him. Again, the very purpose of issuance of show cause notice is to avail an opportunity to the parties and if the matter can be addressed at that stage, the very purpose of the notice get frustrated once there is such cryptic notice which makes hardly any sense. It would not require further dilation of the issue since in case of Aggarwal Dyeing and Printing Works (supra) the Court had extensively and elaborately dealt with the same and also given the directions extensively for the authority to follow.

  We are also persuaded by the learned AGP that the kind of error which has been noticed in the present case is coming up for the first time and therefore, no cost should be imposed. The fact remains that the portal has not been amended till date and this matter has consumed substantial judicial time as the issue has dragged almost for six months and again with fresh notice, it is going to take a lot much time of all concerned only because of the technical glitches need to be amended at the end of the authority concerned.

  Application disposed off.

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• 2022 (12) TMI 820 - PUNJAB AND HARYANA HIGH COURT
  

  Seeking grant of Regular Bail - availment of irregular input tax credit - creation and operation of bogus firms not only for availing inadmissible input tax credit (ITC) on the strength of fake invoices but also for passing on of fraudulent ITC to buyers on the strength of invoices which were not accompanied with any goods - HELD THAT:- Both the petitioners are alleged to have created bogus firms for the purpose of availing input tax credit (ITC) on the basis of fake invoices. The total amount involved is stated to be more than Rs.31 crores. However, this Court finds that the petitioners have been behind bars for a substantial period of 1 year and 4 months and the prosecution agency has not chosen to prosecute the accused for any of the offences under the IPC and the only offence for which they are sought to be prosecuted is offence under Section 132 of the Central Goods and Services Tax Act, 2017 read with Section 20 of the Integrated Goods and Services Tax Act, 2017 wherein a maximum sentence of rigorous imprisonment for 5 years is prescribed. Conclusion of trial is likely to consume time inasmuch as the trial has not even commenced till date and 13 prosecution witnesses have been cited. In these circumstances, further detention of the petitioners would not be justified.

  Both the petitions, as such, are accepted and the petitioners are ordered to be released on regular bail on their furnishing bail bonds/surety bonds to the satisfaction of learned trial Court/Chief Judicial Magistrate/Duty Magistrate concerned.

  Application allowed.

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• 2022 (12) TMI 819 - MADRAS HIGH COURT
  

  Levy of GST - employer and the contractor qua tenders and agreements - it is a case of the contractor/writ petitioner that tenders were prior to 01.07.2017 before the GST regime kicked in and therefore, GST incurred by the contractor has to be absorbed by the contractor - HELD THAT:- The captioned Writ Petition is disposed of with a simple directive to the second respondent to dispose of the aforementioned representation of writ petitioner dated 07.11.2022 on its own merits and in accordance with law as expeditiously as the official business of the second respondent would permit and in any event, within a fortnight from today i.e., by 27.12.2022. The disposal proceedings of the second respondent shall be communicated to the writ petitioner under due acknowledgment within three working days therefrom.

  Though obvious, it is made clear that there is no expression of view or opinion in this order and the second respondent shall dispose of the aforementioned representation on its own merits and in accordance with law - writ petition is disposed off.

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• 2022 (12) TMI 818 - HIMACHAL PRADESH HIGH COURT
  

  Maintainability of appeal - rejection on the ground of one day’s delay - revocation of cancellation of CGST registration - violation of the principles of natural justice - HELD THAT:- It cannot be disputed that the petitioner would not be able to continue with his business in absence of GST registration and thus would be deprived of his livelihood which amounts to violation of his right to life and liberty as enshrined under Article 21 of the Constitution of India.

  In this background, the order dated 29.08.2022 is set aside. The delay in filing of appeal before respondent No.2 stands condoned and respondent No.2 shall now decide the appeal on its merits. The parties are left to bear their own costs.

  The writ petition is disposed off.

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• 2022 (12) TMI 817 - RAJASTHAN HIGH COURT
  

  Classification of goods - printed binded voter lists/voters slip, described as a book - whether exempt under the head 4901, or is not a book and is liable to tax under the head 4911? - N/N. 02 of 2017- Central Tax (Rate) dated 28.06.2017 - violation of principles of natural justice - HELD THAT:- In order to counter the submissions, it has been argued that the orders have been passed in violation of the principles of natural justice as certain documents were not supplied and that they are without jurisdiction inasmuch as the State cannot demand tax on behalf of the Central Government which accepts that the binded voter lists are in the nature of books and exempt from the tax.

  Be that as it may be, the matters require consideration on exchange of affidavits - petition allowed by way of remand.

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• 2022 (12) TMI 816 - UTTARAKHAND HIGH COURT
  

  Cancellation of GST registration of petitioner - Section 30 of the Central GST Act - HELD THAT:- Since, the petitioner failed to furnish returns for a continuous period of six months and show cause notice has been sent to him, it is directed that the petitioner shall file an application for revocation under Section 30 of the CGST Act in terms of Rule 23 of the CGST Rules. Though it is time barred, we are inclined to wave the limitation and direct the petitioner to file application for revocation within 21 days hence - He shall also comply the other provision of Section 30 of the CGST Act, i.e, submission of returns for the defaulted six months and any further completed months after the revocation. In such case if dues is found to be due from the petitioner and he pays the same than his case shall be considered liberally by the revenue and shall be dispose of within 15 days.

  Application disposed off.

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• 2022 (12) TMI 815 - PATNA HIGH COURT
  

  Ex-parte assessment order - service of notice - it is alleged that the orders have been issued in complete violation to section 73 (8) of the GST Act which prescribes minimum 30 days notice time - time limitation - opportunity not provided for making payment - violation of principles of natural justice - HELD THAT:- Undisputedly, minimum statutory period of 30 days mandated under the provisions of Section 74(A) of CGST/BGST Act, 2017 was not afforded to the petitioner for making payment due and prior to the expiry of 30 days, the assessing officer proceeded to pass the order, ex parte in nature.

  The notice dated 15.02.2021 (Annexure-P/4 series) directed the petitioner to file reply on 21st of February, 2021 which was within the period of 30 days. It is the mandate of law that 30 days’ period has to be afforded to the parties, which was not done in the instant case.

  The notice dated 15.02.2021 (Annexure-P/4 series) as also the order of assessment dated 24.02.2021 (Annexure-P/1 ) are quashed, with the direction to the assessing officer to issue a fresh notice in the light of the statutory provisions and pass an appropriate order in accordance with law. All proceedings be positively complied with in these matters - petition allowed.

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• 2022 (12) TMI 814 - ANDHRA PRADESH HIGH COURT
  

  Cancellation of petitioner’s GST registration - failure on the part of the petitioner to file returns for a period of six months prior to issuance of the show-cause notice - Section 29(2) of the Andhra Pradesh Goods and Service Tax Act, 2017 - HELD THAT:- The learned Division Bench of the High Court for the State of Telangana having considered the fact that GST Tribunal has not been constituted under Section 109 of the CGST Act and thereby, the petitioner could not be left without any remedy, held that it would be just and proper if the entire matter was remitted back to the 2nd respondent therein to reconsider the case of the petitioner and pass appropriate order in accordance with law.

  The petitioner preferred appeal but it was rejected. In that view of the matter and as the GST Tribunal has not been constituted as per the provisions of the Act so as to enable the petitioner to pursue his further legal remedies, in the interest of justice, we consider it apposite to allow the writ petition and remit the matter back to the primary authority i.e., 1st respondent to re-consider the case of the petitioner and after affording a personal hearing to him, pass an appropriate order in accordance with law expeditiously but not later than two weeks from the date of receipt of copy of this order.

  The writ petition is allowed.

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• 2022 (12) TMI 813 - GUJARAT HIGH COURT
  

  Cancellation of GST registration of petitioner - time limitation - Non-application of mind - HELD THAT:- It is noticed that it is not in dispute that the petitioner could not file its returns under GST Act, for the period from August, 2021 to January, 2022 because of the financial crisis faced in the business, on account of Covid-19 Pandemic. The respondent no. 2 has in its affidavit-in-reply not controverted this aspect.

  In respect of order dated 8.3.2022, though the petitioner had not filed any reply to the show-cause notice within the time given, despite that the order of cancellation of registration dated 8.3.2022, refers to the reply of the petitioner dated 6.3.2022, which in our opinion shows non-application of mind by the authority. The authority has self-contradicted themselves by initially giving reference to reply dated 6.3.2022 and immediately in the next line stating that no reply to the show cause notice has been submitted. Moreover, in the order the date of cancellation of registration is made effective from 1.8.2021 as opposed to 23.2.2022 mentioned in the show cause notice. Therefore, we are of the opinion that the order dated 8.3.2022 is also issued without due application of mind.

  In respect of order dated 7.9.2022, admittedly the appeal could not be heard on merits as the same was rejected on the ground of limitation. Therefore, though we are conscious that opportunity inspite of being provided in the show cause notice dated 23.2.2022 was not availed of by the petitioner, at no stage can it be said that the petitioner was heard to explain the delay in filing returns. The reason for not being able to reply to the show cause notice in time has been sufficiently explained by the petitioner, which has not been controverted by the respondent in their affidavit-in-reply. Additionally, though the show cause notice dated 23.2.2022 talks about personal hearing on an appointed date, no such date was also prescribed, thereby providing no avenue to the petitioner to present its case.

  Thus, it would serve the ends of justice in the event the petitioner is provided a fresh opportunity to respond to the show cause notice. Resultantly, the writ petition deserves to be allowed and is accordingly partly allowed.

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• 2022 (12) TMI 812 - RAJASTHAN HIGH COURT
  

  Violation of principles of natural justice - Rejection of transitional credit - proper opportunity of hearing was not afforded - reply to show cause notice not given - HELD THAT:- In the present case, order against the petitioner has been passed without submission of reply to show cause notice. There is dispute with regard to the service of notice through mail. According to the petitioner, the mail ID was of an employee, who was no longer in service whereas according to the respondents, the mail ID was one which was supplied by the petitioner to the department. Further, we have gone through the memo of appeal filed by the petitioner against the order of adjudication and we find that substantial grounds have been raised. In our opinion, those grounds ought to be considered in its proper perspective.

  The Hon’ble Supreme Court in the case of UNION OF INDIA & ANR. VERSUS FILCO TRADE CENTRE PVT. LTD. & ANR. [2022 (7) TMI 1232 - SC ORDER] has issued general directions to the Goods and Service Tax Network (GSTN) to open common portal for filing concerned forms for availing transitional credit through TRAN-1 and TRAN-2 for two months which period expires on 30.11.2022.

  The orders dated 12.12.2019 and 04.03.2021 are set aside with the direction that respondents shall provide facility to the petitioner for filing form TRAN-1 within the above extended period and shall not refuse to accept the same if so filed - petition allowed.

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• 2022 (12) TMI 811 - RAJASTHAN HIGH COURT
  

  Direction to open common portal for filing concerned forms for availing Transitional Credit through TRAN-1 and TRAN- 2 - HELD THAT:- In view of the fact that opportunity to file the TRAN-1 and TRAN-2 Forms has been opened to all concerned parties for a period of two months from 01.09.2022 to 31.10.2022 and as the said period has further been extended till 30.11.2022 by virtue of Circular No.180/12/2022-GST dated 09.09.2022, the grievance raised by the petitioner in this writ petition has been ventilated.

  The writ petition is disposed off.

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• 2022 (12) TMI 810 - GAUHATI HIGH COURT
  

  Doctrine of Promissory Estoppel - Area Based Exemption - North-Eastern region - Constitutional Validity of N/N. F.No.10(1)/2017-DBA-II/NER dated 05.10.2017 issued by the Ministry of Commerce & Industry, Department of Industrial Policy & Promotion - scheme for providing budgetary support to the eligible unit for the residual period by way of reimbursement of Goods & Service Tax paid by the unit limited to the Central Government’s share of CGST and/or IGST retained after deduction of a part of their taxes to the States in so far as the same curtails the benefit as promised under NEIIPP, 2007 and Notification No. 20/2007.

  HELD THAT:- The Government of India had by way of the NEIIPP, 2007 had granted incentives to various industries to set up and open their industrial units within the northeastern region. In order to bring about industrial progress in this region, several incentives were granted for such industries who in response to the Industrial Policy announced, will set up their industries and carry on the manufacturing of the various articles and items which are notified in the policy itself. The petitioners are some of such industries who have set up their industries and factories in response to the incentives granted by the Government of India through the NEIIPP, 2007. There are several requirements which are to be fulfilled by these industries in order to make themselves eligible for the benefits/incentives offered under the NEIIPP, 2007. There is no dispute of facts with regard to the eligibility of the industries who are before this Court. All these petitioners have been receiving the incentives offered under the NEIIPP, 2007 in terms of the parameters provided therein. There is also no dispute that although initially the exemptions was to the extent of 100% subsequently, it came to be available only to the extent of ‘value addition’ made by the concerned industries. Such reduction of the benefits during the currency of the NEIIPP, 2007 by the respondents were also assailed before several High Courts including this Court at an earlier point in time.

  These issues came to be decided by a Judgment of Apex Court rendered in UNION OF INDIA & ANOTHER ETC. ETC. VERSUS M/S V.V.F LIMITED & ANOTHER ETC. ETC. [2020 (4) TMI 669 - SUPREME COURT]. The Apex Court upheld the grant of exemptions/benefit/incentives to be extent of value addition made by the industries including the petitioners industries. There is also no dispute that after the advent of GST, the Central Excise Duty which was imposed earlier came to be subsumed. The GST came to be enforced with effect from 01.01.2017. It is also noteworthy that the GST Tax Structure required a constitutional amendment which was brought in w.e.f. 19.09.2016 by the 101st Constitutional Amendment. As such, it is seen that the petitioners are aware of the nature and structure of the GST which have been in force with effect from 01.01.2017.

  The denial of the benefits under the NEIIPP, 2007 has caused severe financial losses to the petitioners industries. Such withdrawal of the promise midway without taking into consideration of the grievances of the petitioners is completely opposed to the doctrine of promissory estoppel as developed by catena of Judgments rendered by the Apex Court over the years. It is contended that the budgetary scheme which is presently enforced by the respondents is outside the purview of the GST Scheme of the Tax Structure.

  The Apex Court in THE STATE OF JHARKHAND AND ORS. VERSUS BRAHMPUTRA METALLICS LTD. AND ORS. [2020 (12) TMI 1241 - SUPREME COURT] after referring to the earlier judgments of the Apex Court held that the doctrine of legitimate expectation cannot be claimed as a right in itself, but can be used only when the denial of a legitimate expectation leads to the violation of Article 14 of the Constitution.

  After elaborately examining the doctrines of promissory estoppels and the doctrine of legitimate expectation, the Apex Court held that the State having held out a solemn representation in the above terms, it would be manifestly unfair and arbitrary to deprive industrial units within the State of their legitimate entitlement. The State government did as a matter of fact, issue a statutory notification under Section 9 but by doing so prospectively with effect from 8 January 2015 it negated the nature of the representation which was held out in the Industrial Policy 2012 - The Apex Court observed that the pleadings are completely silent on the reasons for the delay on the part of the government and offer no justification for making the exemption prospective, contrary to the terms of the representation held out in the Industrial Policy 2012. It is one thing for the State to assert that the writ petitioner had no vested right but quite another for the State to assert that it is not duty bound to disclose its reasons for not giving effect to the exemption notification within the period that was envisaged in the Industrial Policy 2012. It was held that both the accountability of the State and the solemn obligation which it undertook in terms of the policy document militate against accepting such a notion of state power and the state must discard the colonial notion that it is a sovereign handing out doles at its will.

  In view of the very recent Judgment of the Apex Court rendered in M/S HERO MOTOCORP LTD. VERSUS UNION OF INDIA & ORS. [2022 (10) TMI 677 - SUPREME COURT] and in view of the authoritative findings rendered by the Apex Court in the said Judgment, nothing further is required to be decided in the present proceedings. The findings rendered in the said Judgment by the Apex Court also squarely covers the issue raised in the present proceedings. It is seen that although the Apex Court has dismissed the appeals preferred by the appellants, herein, namely, Hero Motorcorp Limited, the Apex Court also arrived at a finding that although the appellants therein may not have a claim in law, they do have a legitimate expectation that their claim deserves due consideration. The Apex Court therefore, permitted the appellants therein to make representation to the respective State Government as well as to the GST Council and the said representations if made will be given due consideration in expeditious manner.

  Writ petition dismissed.

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• 2022 (12) TMI 809 - APPELLATE AUTHORITY FOR ADVANCE RULING, TELANGANA
  

  Exemption from GST - sale of produces Distillery Wet Grain Soluble (DWGS) and Distillery Dry Grain Soluble (DDGS) - Cattle feed undertaken by the applicant - N/N. 102 of Notification No. 02/2017 -Central Tax (Rate) dated 28 June 2017 - Whether the appeal is filed in time? - HELD THAT:- It is clarified in Circular No. 163/19/2021-GST Dated 6th October, 2021, that Brewers' spent grain (BSG), Dried distillers' grains with soluble [DDGS] and other such residues are classifiable under heading 2303, attracting GST at the rate of 5% (S. No. 104 of schedule I of notification No. 1/2017-Central Tax (Rate) dated 28.06.2017).

  The order passed by the lower authority is upheld - appeal disposed off.

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• 2022 (12) TMI 808 - APPELLATE AUTHORITY FOR ADVANCE RULING, TELANGANA
  

  Place of supply - Finance Lease - leasing of tank containers taken form a supplier i.e., lessor who is located outside India and the tank containers do not reach India - supply of goods and tank containers do not reach the Indian Territory - HELD THAT:- From the terms of the Lease purchase agreement it is evident that the appellant is obtaining the containers on lease for a period of 5 years and after expiry of 5 years or prior to five years the appellant has an option to purchase the container on payment of certain amount as per the contract. On exercising the option to purchase and payment of corresponding amount the ownership of the container passes on to the appellant from the lessor. If the appellant fails to purchase the containers he shall return back the same to lessor.

  Hon'ble Supreme court of India in case of M/S MAGMA FINCORP LTD. VERSUS RAJESH KUMAR TIWARI [2020 (10) TMI 1347 - SUPREME COURT] held that the financier/Lessee continues to remain the owner of a vehicle, covered by a hire purchase agreement till all the hire installments are paid and the hirer/lesee exercises the option to purchase. Till such time the option is exercised the hirer remains only as the trustee or bailee of goods covered by such agreement. The same is applicable to lease purchase agreements also.

  From the Conditions of the Lease purchase agreements and Judgment of Hon'ble Supreme court of India M/s Magma fincorp Limited Vs Rajesh Kumar Tiwari, the ownership of the containers lies with M/s Tankspan Leasing Ltd until the appellant exercises option to purchase the container as per the agreement - there is no transfer of title in goods until the appellant purchases the container and this fact wasn't disputed either.

  The appellant while bringing to fore the discussion on Accounting Standards has rightly contended that the substance of an agreement prevails over its form. However, substance prevails over form when Substance of an agreement doesn't align with its form. Here in this case, form of the agreement (leasing agreement) aligns with the substance (intention to lease). The intention of the parties was to lease the containers with an option to purchase - the intentions were evident as seen from the agreement; the monies arising out of the claim of insurance shall be transferred to the Lessor (the owner of the goods). As per the terms of agreement the lessee cannot even alter the color, identification marks or undertake Buffing(polishing) without the written approval from the lessor. Hence, the claim of the appellant that the intention of the parties is to transfer the title from the inception cannot be accepted.

  The transaction attracts IGST and is exigible to tax under the provisions of Sub-section(1) and Sub-section (3) of Section 5 of IGST Act and Notification No: 10/2017 -IGST(R) - Further as per the Provisions of Section 13 of IGST Act,2017 where the location of the supplier of services or recipient of services is located outside India, the place of supply is the location of recipient of services. Therefore, the transaction is taxable under reverse charge basis, with tax to be paid by the recipient of services, i.e. M/s Deccan Transco Leasing Private Limited with Place of Supply as 'Telangana'.

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