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GST - Case Laws
Showing 1 to 20 of 2178 Records
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2023 (12) TMI 1420
Delay of almost three years in filing the petition - retrospective amendment to Section 50 of the WBGST Act - HELD THAT:- Petitioner is not a company, not an individual and it must have the service of legal professionals. Though there is no limitation in the writ proceeding but if such type of claim is entertained by such inordinate delay without any proper explanation and particularly by the petitioner who is a company and not an individual cannot which take plea of ignorance of law and if the writ petition is entertained after three years of passing of the impugned order there will be floodgate of cases.
Petition dismissed.
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2023 (12) TMI 1411
Profiteering - purchase of flat - benefit of input tax credit (ITC) had not been passed on to his customers by way of commensurate reduction in prices - contravention of section 171 of CGST Act - HELD THAT:- The Commission is of the view that the claim of the Respondent regarding passing on the benefit of additional ITC to his customers/home- buyers needs to be verified. The Respondent is directed to provide all the documentary evidence i.e. "Names of the home-buyers, their E- mail ids/Mobile Nos./Addresses, Amount of ITC benefit passed on to each home-buyer, Copies of Tax invoice, Credit Notes and Cheques issued to each home-buyer, Copies of Bank Statements indicating the amount of ITC benefit passed on to the home-buyers and Acknowledgement Receipts from all the home-buyers stating that they have received the additional benefit of ITC" duly certified by the Authorized person of the Respondent to the DGAP to prove his above claim. The claim of the Respondent regarding passing on the benefit of ITC to the customers/home-buyers shall be verified by the DGAP by contacting the customers/home buyers and seeking their replies regarding receipt of benefit of ITC.
The Commission is of the view that on the basis of the documents submitted by the Respondent, the DGAP has not tried to investigate whether the Respondent had sold the flats to the post-GST home- buyers at the rates lower than the rates charged from the pre-GST home-buyers. Further, during the course of investigation, the Respondent has not provided the details to the DGAP. The DGAP has already submitted his investigation report to the Commission.
The Commission under Rule 133(4) of the CGST Rules, 2017 directs the DGAP to further investigate the claim of the Respondent regarding passing on the benefit of ITC and charging lower rates from the post-GST buyers than the pre-GST buyers and recalculate the profiteered amount, if required. The Respondent is also directed to extend all necessary assistance to the DGAP and furnish him with necessary documents or information as required during the course of the investigation.
Conclusion - The benefits of ITC must be passed on to consumers, and the burden of proof lies with the seller to demonstrate compliance.
Application disposed off
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2023 (12) TMI 1410
Cancellation of the Registration of GST of the petitioner - it has been submitted by the learned counsel for the petitioner that the petitioner would be satisfied if a direction is issued to the respondent-authority to reconsider the cancellation of the Registration of GST of the petitioner, after rehearing him, in view of the absence of Appellate Tribunal.
HELD THAT:- In the absence of Appellate Tribunal, to challenge any order passed by the Appellate Authority, it would be more appropriate that the Appellate Authority rehears the petitioner regarding the cancellation of Registration, as it involves certain ascertainment of facts. This Court, in exercise of Article 226 of the Constitution of India rather than examining this issue deems it proper to close this writ petition with liberty to the petitioner to file an application for reconsideration of the cancellation of Registration of GST of the petitioner, which according to the petitioner, was cancelled without assigning any reason.
Petition disposed off.
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2023 (12) TMI 1406
Levy of tax and Penalty - whether mere expiration of e-Way Bill during the course of transportation could attract the wrath of Section 129, read with Rule 138 of the Act and Rules of 2017, and if at all, the same could attract penalty in terms thereof? - HELD THAT:- Recently the issue at hand was decided by the Allahabad High Court in Sleevco Traders through Its Proprietor Shri Alok Gupta [2022 (5) TMI 845 - ALLAHABAD HIGH COURT]. The High Court after taking into consideration the fact and the circumstances in which the e-Way bill expired, held that “there is neither any intention to evade payment of tax nor any fraud nor any contravention of the Act, as valid documents were accompanying with the goods as required under the Act”.
The aforesaid order was challenged by the Revenue before the Hon’ble Apex Court in ADDITIONAL COMMISSIONER GRADE-2 (APPEAL) FIFTH COMMERCIAL TAX & ANR. VERSUS M/S SLEEVCO TRADERS [2023 (7) TMI 418 - SC ORDER] and the Hon’ble Apex Court dismissed the appeal of the State inter alia holding as “This Court is of the opinion that there is no infirmity in the judgment of the High Court, which is correctly appreciated”.
Admittedly; in the instant case, the revenue has not taken into consideration the fact that because of denial of permission to enter into Adityapur Industrial Area due to the festive season (Deepawali), the vehicle (Truck) was bound to stop for some time, as a result of which the validity of the e-Way Bill expired. It is also admitted fact that the truck was within 1 KM of the Industrial Area and not far, thus it is evident that the expiry of e-Way Bill due to aforesaid reason should not and cannot amount to intention of evasion of tax and therefore, no extent of penalty would arise.
This Court in similar facts and circumstance in the case of Rivigo Services Private Limited Versus The State of Jharkhand & Ors. [2022 (11) TMI 391 - JHARKHAND HIGH COURT] had quashed and set aside the order passed by the revenue and remanded the matter back to the authorities for fresh consideration.
Inasmuch as, there is neither any intention to evade payment of tax nor any fraud has been committed and valid documents were accompanying with the goods as required under the Act; save and except, the E-Way Bill which had expired by few hours and this Court cannot ignore the fact that the vehicle was intercepted very near to the Check-Post and as stated by the petitioner and not controverted by the Revenue that it was the festive season of Diwali.
Conclusion - The mere expiration of an e-Way Bill, without intent to evade tax, does not justify the imposition of penalties under Section 129.
The petitioner had already paid the penalty; interest of justice would be sufficed by allowing the petitioner to claim for refund and if any such application for refund is preferred; the competent authority shall consider the same within a period of 8 weeks from the date on which such application is made and refund be effected, if there are no other legal impediment - Application allowed.
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2023 (12) TMI 1405
Profiteering - construction projects - benefit of Input Tax Credit (ITC) not passed on to the buyers - contravention of Section 171 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- It is observed that the DGAP report dated 15.02.2023 in respect of both the projects is incomplete. Accordingly, the DGAP is directed to re investigate both the above projects viz 'Omkar 1973 Worli' and 'The Summit Business Bay' under Rule 133(4) of the above Rules and submit complete report accordingly. The Respondent No. 1 is also directed to supply the required information to the DGAP promptly.
Conclusion - i) The additional benefit of ITC in the GST regime is required to be passed on by the suppliers to the recipients by way of commensurate reduction in price, in terms of Section 171 of GST Act, 2017. ii) Reinvestigation directed by the DGAP to address identified discrepancies and ordered the Respondent No. 1 to provide complete documentation.
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2023 (12) TMI 1404
Profiteering - Construction Service supplied by the Respondent - it is alleged that the Respondent had not passed on the benefit of ITC to her by way of commensurate reduction in the price of the flat purchased from the Respondent - contravention of Section 171 of the CGST Act, 2017 - HELD THAT:- The Commission finds that the matter needs to be sent back to DGAP under Rule 133(4) of the CGST Rules, 2017 for re-investigation on the following issues:
i. Whether Smt. Sudha has received the benefit of ITC due to the settlement made by her with the Respondent as a consequence of which she has withdrawn her complaint?
ii. Whether some of the flats constructed by the Respondent fell under the 'Affordable Housing Scheme' and whether GST was to be charged on those flats @ 8%?
iii. To consider the claim of the Respondent regarding cancellation of flats/units in the project and calculate the profiteering accordingly.
iv. Verification of the 'passing on of ITC benefit' to homebuyers/customers be carried out afresh.
Conclusion - The DGAP is directed to submit a fresh investigation report under Rule 133(4) of the CGST Rules, 2017 on all the issues mentioned.
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2023 (12) TMI 1403
Condonation of delay of 21 days in filing the appeal before the first respondent/Appellate Authority - time limit for filing an appeal - HELD THAT:- This Court finds that since the order dated 30.03.2023 passed by the second respondent has provides 3 months time for preferring appeal, the petitioner was under the wrong impression that they can file the appeal within 3 months plus 30 days in addition, (in the event of any delay) from the date of receipt of the order 30.03.2023. But, however, the Act only provides for 2 months, which is exclusive of one month grace time for the delay, if any. Therefore, reasons assigned by the petitioner for preferring the Appeal with delay is appears to be genuine and reasonable, inasmuch as, the petitioner got confused over the time limit prescribed under the Statute, (which is only two months) and the time limit prescribed by the second respondent/Authority which is three month's, inclusive of one month delay period. Therefore, this Court is inclined to set aside the impugned order dated 27.09.2023.
Conclusion - This Court finds that since the order dated 30.03.2023 passed by the second respondent has provides 3 months time for preferring appeal, the petitioner was under the wrong impression that they can file the appeal within 3 months plus 30 days in addition.
The impugned order is set aside and the first respondent is directed to take the Appeal on record and dispose of the Appeal on merits.
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2023 (12) TMI 1402
Challenge to assessment orders for the financial years 2013-14 to 2017-18 under the CGST and SGST Acts - assessment orders were passed without granting sufficient time to him to furnish the balance 'C' Form and denying the concessional rate of tax - violation of principles of natural justice - HELD THAT:- The 2nd respondent, at the time of consideration of the stay application, prima facie found that the appellant could not produce any documents to substantiate his contention that he is entitled to concessional rate of tax. In the said circumstances, the 2nd respondent chose to impose the condition while granting stay. The tax liability comes to more than ₹ 45,00,000/-. There are no illegality in the order of the 2nd respondent imposing a condition to grant stay.
Appeal dismissed.
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2023 (12) TMI 1401
Challenge to action of the respondents in realising the service tax arrears under the Finance Act, 1994 in terms of Section 87(b) by issuing a garnishee order - HELD THAT:- The 5th respondent had already withdrawn an amount of ₹ 1,30,64,178/- from the bank account of the appellant held with the said bank and paid to the 2nd respondent. The balance outstanding under the garnshiee order is ₹ 68,01,439/-. The learned standing counsel for the appellant submitted that the appellant does not have enough funds with them and they cannot mobilise the balance amount in five instalments as directed. The learned standing counsel for respondents 1 to 3 formally objected to the grant of more instalments albeit conceding that Ext.P4 circular allowed for the grant of more instalments. Considering the rival submissions, the appellant can be granted twelve instalments as against five instalments granted by the learned Single Judge to discharge the outstanding service tax and interest. The first instalment of ₹ 15,00,000/- can be deducted by the 4th respondent from the amount lying in the appellant's bank account as directed by the learned Single Judge. The appellant shall pay the balance amount in twelve equal instalments starting from 1st February, 2024.
Appeal disposed off.
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2023 (12) TMI 1400
Maintainability of petition - availing statutory remedy of appeal against the impugned order - non-constitution of the Tribunal - HELD THAT:- The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act, which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the B.G.S.T Act, enters office.
Subject to deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section 107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act. The petitioner cannot be deprived of the benefit, due to non- constitution of the Tribunal by the respondents themselves.
Petition disposed off.
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2023 (12) TMI 1399
Levy of GST on various fees collected by Tamil Nadu Nurses and Midwives Council, a Government Authority - opportunity of hearing not provided - violation of principles of natural justice - HELD THAT:- The rejection of application for advance ruling in the instant case stems from the fact that an investigation initiated by DGGI against the appellant is pending on the same issue. This being the case, the advance ruling authority ought to have shared the new findings of DGGI that was lying before them, and discussed the same in detail, either during the personal hearing, or thereafter, before proceeding to finalise the case.
The principles of natural justice have not been followed in the instant case, since the advance ruling authority had erred in not sharing the documents and comments forwarded by DGGI, with the appellants. Accordingly, justice will be met by restoring the application for advance ruling to its original position, by way of remanding the case to the lower authority, with a direction to forward the letter dated 28.07.2022 of DGGI along with its enclosures to the appellant enabling them to comment on the same, and to offer them another opportunity of personal hearing before deciding the case as per the provisions of law.
Conclusion - The principles of natural justice have not been followed in the instant case, since the advance ruling authority had erred in not sharing the documents and comments forwarded by DGGI, with the appellants.
The matter is remanded to the Lower Authority for consideration and passing of appropriate orders, after following the principles of natural justice.
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2023 (12) TMI 1398
Maintainability of petition - availability of alternative remedy - Challenge to penalty orders under Section 129 of the CGST/SGST Act, 2017 - HELD THAT:- Admittedly, the petitioner has the remedy of filing an appeal against the said order. Instead of filing the statutory appeal, the petitioner has approached this Court in the present writ petition. As the petitioner has an efficacious alternate remedy to file a statutory appeal, this Court does not entertain the present writ petition.
Petition disposed off.
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2023 (12) TMI 1397
Quashing of order passed u/s 74 of the GST Act on the ground that the petitioners are liable to pay GST on the amount of discount received by it on purchase of the motor vehicles contrary to the circular issued by Central Board of Indirect Taxes and Customs and the appellate orders passed under similar provisions under the Finance Act - HELD THAT:- When the matter was taken up for passing the order, it was found that the appellate order relied upon by the petitioners is under challenge before the CESTAT. In such circumstances, the petition is required to be kept pending till the CESTAT decides such issue.
Issue Rule returnable on 30th April, 2024. Ad interim granted earlier to continue as interim relief till the final disposal of this petition.
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2023 (12) TMI 1396
Denial of ITC - imported goods or not - HELD THAT:- Considering the facts and circumstances of the case and submission of the parties and in view of the instruction dated 20th December, 2023, this writ petition is disposed of by setting aside the impugned adjudication order dated 16th August, 2023 by directing the adjudicating authority concerned of the State GST, to pass a fresh adjudication order, within two weeks from the date of receipt of such order and allow the claim of ITC in accordance with law.
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2023 (12) TMI 1395
Cancellation of petitioner’s GST registration - petitioner has not filed returns for a continuous period of six weeks - non-application of mind - violation of principles of natural justice - HELD THAT:- It is seen from the impugned order that while the second respondent has referred to the petitioner’s purported reply dated 12.12.2022, in the very next sentence, the second respondent has also recorded that no reply is filed to the Show Cause Notice. The non-application of mind is obvious and therefore there must be interference quashing the cancellation of the petitioner’s GST registration but on terms.
The second respondent’s impugned order dated 30.12.2022 is quashed but on the condition that the petitioner shall file necessary declarations, if not already filed, and discharge of dues within the period of four [4] weeks from the date of receipt of a certified copy of this order - Petition allowed.
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2023 (12) TMI 1394
Maintainability of petition - availability of statutory remedy of appeal - non-constitution of the Tribunal - HELD THAT:- The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act, which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the B.G.S.T Act, enters office.
Subject to deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section 107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act. The petitioner cannot be deprived of the benefit, due to non- constitution of the Tribunal by the respondents themselves. The recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed.
Petition disposed off.
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2023 (12) TMI 1391
Challenge to summons issued under Section 70 of the Central Goods and Services Tax Act 2017 directing the petitioner through its proprietor to tender oral evidence - HELD THAT:- Let the petitioner appear before the designated officer on 23 January 2024 at 2.30 p.m.
Petition disposed off.
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2023 (12) TMI 1386
Seeking release of amount seized during a search by CGST officers - HELD THAT:- This Court in its judgment DEEPAK KHANDELWAL PROPRIETOR M/S. SHRI SHYAM METAL VERSUS COMMISSIONER OF CGST, DELHI WEST & ANR. [2023 (8) TMI 929 - DELHI HIGH COURT], had held that the concerned authorities do not have the power to cease cash found during the search conducted under Section 67 (1) of the CGST Act.
Thus, the currency ceased is required to be returned to the petitioner - the concerned authority is directed to remit the aforesaid amount into the bank account of the petitioner - petition allowed.
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2023 (12) TMI 1337
Direction to the respondent to restore the petitioner's GST Registration - HELD THAT:- It appears that the present issue was already covered by the aforesaid judgement of this Court in W.P. No. 25048 of 2021 [2022 (2) TMI 933 - MADRAS HIGH COURT] where it was held that 'Therefore, if such a person is not allowed to revive the registration, the GST will not be paid, unless of course, the recipient is liable to pay tax on reverse charge basis. Otherwise, also there will be no payment of value added tax. The ultimate goal under the GST regime will stand defeated. Therefore, these petitioners deserve a right to come back into the GST fold and carry on their trade and business in a legitimate manner.'
This Court is inclined to allow this petition - it is made clear that if the petitioner is liable to pay any tax or penalty, he is required to pay the same in accordance with law - Petition allowed.
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2023 (12) TMI 1336
Seeking grant of regular bail - illegal availment of ITC - Section 132(1)(c) of the Central Goods and Services Act, 2017 - HELD THAT:- It appears that the present applicant has been arrested in connection of the offence punishable under Section 132(1)(c) of the Central Goods and Services Act, 2017 for which punishment is five years of imprisonment. The applicant is arrested on 13.10.2023 and since then the applicant is in custody. The investigation appears to be virtually over. The case of the prosecution rests upon documentary evidence. All the documentary evidence and other material appears to have been seized by the Investigating Agency. Therefore, presence of the present applicant does not appear to be necessary for the purpose of investigation. The trial is not likely to commence and conclude in the near future.
Considering the nature of allegations made in the FIR and without discussing the evidence in details as well as without going into details, prima-facie, this Court is of the opinion that this is a fit case to exercise the discretion to enlarge the applicant on bail. Hence, the application is allowed and the applicant is ordered to be released on bail in connection with the aforesaid FIR, on executing a bond of Rs.10,000/- with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions.
Application allowed.
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