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GST - Case Laws

Showing 161 to 167 of 167 Records

• 2023 (1) TMI 78
  

  Classification of supply - supply of goods or supply of services - transfer of business by way of merger of two registration/distinct person - going concern or not - applicability of Entry No. 2 of the Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 - levy of GST - transfer of existing stock (closing stock) assets, others etc. from proprietorship concern to the Partnership concern.

  HELD THAT:- Here the applicant intends to transfer his entire proprietorship business where the transferee agrees to take over the assets as well as the liabilities of the said transferor concern along with the employees and their benefits. In our view, such transfer of business cannot be treated as supply of goods since business cannot be said to be a movable property so as to qualify as ‘goods’ as defined in clause (52) of section 2 of the GST Act. Further, anything other than goods, money and securities falls within the meaning of ‘services’ as defined in clause (102) of section 2 of the GST Act.

  The term 'going concern' is not defined under the GST Act or rules framed there under. The concept of going concern has been defined in Accounting Standards – 1 issued by ICAI which states that a fundamental accounting assumption is that of ‘Going Concern’ according to which “the enterprise is normally viewed as a going concern, that is, as continuing in operation for the foreseeable future. It is assumed that the enterprise has neither the intention nor the necessity of liquidation or of curtailing materially the scale of the operations”.

  It therefore appears that to qualify as a ‘going concern’, the business must not have ‘intention or necessity of liquidation or of curtailing materially the scale of the operations’. In this context, we like to mention that the applicant has furnished before us copy of ‘Audit report under section 44AB of the Income-tax Act, 1961’ related to the period from 01.04.2020 to 31.03.2021. However, we do not find any comments from the auditor in respect of the ‘entity's ability to continue in operation for the foreseeable future’. We are, therefore, unable to conclude that the applicant has neither the intention nor the necessity of liquidation or of curtailing materially the scale of the operations.

  The transaction of transfer of business of the applicant involved in the instant case shall be treated as a supply of services - The transaction would be covered under Serial No. 2 of the Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 [corresponding West Bengal State Notification No. 1136 F.T. dated 28.06.2017] subject to fulfilment of the conditions to qualify as a going concern.

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• 2023 (1) TMI 77
  

  Requirement to issue tax invoice to State Government Department/ Directorate on the contract value as determined by the department where the applicant is working as a Project Implementing Agency - HELD THAT:- In the instant case, the applicant enters into an agreement with the contractor and so is liable to pay the consideration to the contractor. Further, the applicant himself has admitted that as a project implementing agency engaged by the administrative department of Government of West Bengal, he merely acts as an ‘agent’ of the said administrative department to execute the work. In this context, we find that an agent shall also be treated as recipient of supply of goods or services or both since the aforesaid definition has made it abundantly clear that ‘any reference to a person to whom a supply is made shall be construed as a reference to the recipient of the supply and shall include an agent acting as such on behalf of the recipient in relation to the goods or services or both supplied’. Thus, the applicant undisputedly is the recipient of supply provided by the contractor meaning thereby the contractor doesn’t make any supply to the department concerned.

  In the instant case, two separate supplies take place. The first one is made by the contractor to the applicant and thereafter another supply is made by the applicant to the department concerned in spite of the fact as stated by the applicant that there is no value addition in respect of the second supply - The applicant while working as a “Project Implementing Agency’ is making supplies to State Government Department/ Directorate and therefore is required to issue tax invoice on the contract value as determined by the department.

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• 2023 (1) TMI 51
  

  Liability towards interest and penalty - It is a specific plea of the petitioner that detailed reply to the show cause notice was furnished and a request was also made for personal hearing to the Officer before adjudication of the matter - denial of principles of natural justice - HELD THAT:- A perusal of the impugned order would indicate that neither the reply of assessee was considered nor any opportunity of personal hearing was given.

  The Officer acted in a reckless illegal manner leading to unwarranted litigation being filed in the Court. Furthermore, we have serious reservations on the veracity of the dispatch register - Shri Hitesh Trivedi, Joint Commissioner, Circle Nimbahera is directed to personally remain present in the Court with the original record including the dispatch register on 15.12.2022 to show cause as to why cost should not be imposed upon him for nonperformance of duties enjoined upon him by law.

  List on 15.12.2022.

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• 2023 (1) TMI 50
  

  Seeking withdrawal of petition - As there has been an order of confiscation, petitioner requires this petition to be withdrawn - HELD THAT:- Matter is being disposed of without entering into the merits. The other side also does not have any objection so long it is a simple withdrawal.

  Petition dismissed as withdrawn.

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• 2023 (1) TMI 49
  

  Seeking release of seized goods alongwith conveyance - without waiting for the petitioner’s response to the show cause notice, the impugned show cause notice under Section 130 of the Act had been issued - violation of principles of natural justice - HELD THAT:- It is agreed that till this Court decides the matter finally, the interim relief in terms of deposit of fine in lieu of confiscation of vehicle being Rs. 2,50,062/- with penalty of Rs. 5,00,124/- under Section 129(1a) which includes 200% of the tax amount and bond value against the release of the goods to the tune of Rs. 13,89,224/- as per GST MOV-10 shall be furnished by the petitioner. On this being complied with, no coercive steps or further order under Section 130 shall be passed.

  By way of interim relief, it is directed that the respondents shall release the goods and conveyance of the petitioner, confiscated and detained pursuant to the detention order passed in Form GST MOV-06 and Form GST MOV-10 dated 15.11.2022, subject to the conditions imposed - application allowed.

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• 2023 (1) TMI 48
  

  Taxability - Dried Distillers Grains Solubles (DDGS) - Distillers Wet Grains Solubles (DWGS) - Undenatured Extra Neutral Alcohol (ENA) - Challenge to CBI Circular No.163/19/2021-GST dated 06.10.2021 to the extent that it erroneously deals with and determines the issue of taxability of DDGS and DWGS - HELD THAT:- This Court on a query raised, is pointed out that the last meeting of the council was held on 18.05.2021 where the issue of taxability of ENA in GST has already been discussed. The next meeting of the council is scheduled on 17.12.2022. It is also argued that the impugned circular is ultra vires the statue and in derogation of the statutory scheme of classification and with a further argument that the issue with regard to the taxability of ENA which is pending for the consideration of GST council is likely to affect the entire country. Therefore, any adjudication on the part of the officer concerned of the show cause notice, which is challenged would have a bearing on all the pending issues.

  Issue Notice, returnable on 22.12.2022.

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• 2023 (1) TMI 47
  

  Seeking grant of regular bail - case of alleged offence under Section 132(1)(a) of the CGST Act is not made out - no intention to evade tax or to adopt any fraudulent practice - HELD THAT:- 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, 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 imposed.

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