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GST - Case Laws
Showing 1 to 20 of 161 Records
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2023 (3) TMI 1444 - CALCUTTA HIGH COURT
Maintainability of petition - Rejection of application of the petitioner for refund - appealable order or not - HELD THAT:- This Court is constrained to record that learned advocate appearing for the petitioner has made misrepresentation and incorrect statement by trying to make out a case that petitioner’s application for refund was rejected on the ground of limitation by not considering the period of limitation protected by the order of the Supreme Court during the Covid-19, which is totally incorrect and false statement, as appears from the aforesaid impugned order of rejection from which it is found that adjudicating authority has specifically recorded that the claim of the petitioner is not time barred and claim has been rejected on some other grounds.
Petition is dismissed on the ground of availability of alternative remedy by way of statutory appeal.
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2023 (3) TMI 1424 - CALCUTTA HIGH COURT
Seeking grant of Interim relief - HELD THAT:- There is no scope of passing any interim order in the matter and the issues involve require affidavit from the respondents for final adjudication.
List this matter for final hearing in the monthly list of June, 2023.
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2023 (3) TMI 1409 - SUPREME COURT
Distribution and/or utilisation and/or eligibility of Input Service Distributor (ISD) credit of Service Tax/excise duty - Section 140 of the CGST Act 2017 - it was held by High Court that Goods and Service Tax Network (GSTN) is directed to open common portal for filing concerned forms for availing Transitional Credit through TRAN-1 and TRAN-2 for two months i.e. w.e.f. 01.09.2022 to 31.10.2022.
HELD THAT:- This Court is of the opinion that the course adopted in the impugned order does not commend to us, more so having regard to the fact that the writ petition had been opposed by the Union which had even filed an affidavit - this Court would have been benefited from reasoned judgment on the merits rather than the High Court merely adopting and following the reasoning of an order which appears to have been made in exercise of the power under Article 142 of Constitution of India.
The matter is remitted for fresh consideration by the High Court which is requested to hear the parties and deliver its judgment on the merits after reflecting upon all contentions and the relevant provisions of law - the impugned order is set aside.
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2023 (3) TMI 1390 - PATNA HIGH COURT
Maintainability of petition - availability of alternative remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act - - non-constitution of the Tribunal - petitioner prevented from availing the benefit of stay of recovery of balance amount of tax in terms of Section 112 (8) and (9) of the B.G.S.T Act upon deposit of the amounts as contemplated under Sub-section (8) of Section 112.
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.
Considering the facts and circumstances noted above, this Court in the case of ANGEL ENGICON PRIVATE LIMITED VERSUS STATE OF BIHAR, ASSISTANT COMMISSIONER OF STATE TAX [2023 (3) TMI 879 - PATNA HIGH COURT] held that The statutory relief of stay on deposit of the statutory amount, in the opinion of this Court, cannot be open ended. For balancing the equities, therefore, the Court is of the opinion that since order is being passed due to non-constitution of the Tribunal by the respondent-Authorities, the petitioner would be required to present/file his appeal under Section 112 of the B.G.S.T. Act, once the Tribunal is constituted and made functional and the President or the State President may enter office.
There is an additional fact in the instant case, as asserted by the petitioner, that in terms of the liberty granted under earlier order dated 16.11.2022, in these proceedings, he has already deposited 20 percent of the remaining amount of tax in dispute.
The petition is disposed off.
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2023 (3) TMI 1385 - SC ORDER
Grant of Conditional Bail - payment of substantial sum ordered as a pre-condition for grant of bail - seeking that bail prayer has to be considered on the basis of the merit of the petition - HELD THAT:- The bail order given to the petitioner stands confirmed.
Requirement of deposit of amount shall not be precondition for release on bail. However, other conditions are left undisturbed and shall be complied by the petitioner.
Application disposed off.
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2023 (3) TMI 1382 - ALLAHABAD HIGH COURT
Termination of proceedings - earlier proceedings under Section 67 of the U.P. Goods and Services Tax Act, 2017 terminated upon the appeal of the petitioner being allowed.
HELD THAT:- Matter requires consideration.
Learned counsel for the respondents prays for and is granted six weeks time to file counter. Petitioner will have two weeks thereafter to file rejoinder - List thereafter.
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2023 (3) TMI 1377 - ALLAHABAD HIGH COURT
Maintainability of the writ petition - Availability of statutory alternative remedy of preferring appeal under Section 107 of the Act - Submission is that since such statutory alternative remedy has not been availed, therefore, the writ petition is not liable to be entertained - HELD THAT:- There are substance in the preliminary objection taken to the maintainability of the writ petition by learned State Counsel.
Since, the statutory alternative remedy of appeal has not been availed, as such, the order passed by the competent forum at the first instance need not be challenged.
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2023 (3) TMI 1375 - CALCUTTA HIGH COURT
Levy of penalty - Detention of goods alongwith vehicle - expired E-way bill - HELD THAT:- The reason for the vehicle of the appellant along with the goods for being detained was that the e-way bill had expired at 11:59 hours on 22nd April, 2022. As per the statute, the owner of the goods / transporter had eight hours time to revalidate the e-way bill, which would have been at 8 a.m. on 23rd April, 2022. However, the said date was a Saturday and the vehicle was intercepted at 8.52 a.m., when it was travelling towards the destination and at a distance of about 20 kilometers from the destination. There is no other allegation made against the appellant.
There is no lack of bona fide on the part of the appellant to state that there was wilful misconduct committed by the appellant while transporting the goods. There is every possibility that even if an application was made for extension of the e-way bill within the time permitted, 23rd April, 2022 being a Saturday, the e-way bill, in all probabilities, would not have been revalidated within the eight hours period.
Considering the facts and circumstances of the case, the authority could not have imposed penalty on the appellant - the appeal is allowed.
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2023 (3) TMI 1371 - GUJARAT HIGH COURT
Constitutional Validity of Sub Rule (10) of Rule 96 of the CGST Rules, 2017 - ultra vires Section 16 of the IGST Act, ultra vires Section 54 and 164 of the CGST Act, 2017, and ultra vires Articles 14 and 19(1)(g) of the Constitution of India - refund of Integrated Tax paid on goods exported - HELD THAT:- It was pointed out that the petition containing identical controversy to be entertained by Co-ordinate Bench of this court in MESSRS AMVIAN AUTOMOTIVE PVT. LTD. VERSUS UNION OF INDIA [2022 (11) TMI 1366 - GUJARAT HIGH COURT]. It was further pointed out from the said order that interim relief was also granted by directing that the respondent shall not make any coercive recovery.
Notice, returnable on 26.4.2023.
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2023 (3) TMI 1368 - ALLAHABAD HIGH COURT
Cancellation of GST registration of petitioner - appeal preferred by the petitioner was dismissed as being beyond the prescribed period of limitation - HELD THAT:- Considering the fact that the order impugned cancelling the registration is prima facie without application of mind which is squarely covered by the judgment of this court in the case of M/s Chandra Sain [2022 (9) TMI 1047 - ALLAHABAD HIGH COURT] and the issue of non-fixation of time and date is squarely covered by the judgment rendered in the case of M/s Jaiprakash Thekedar [2023 (1) TMI 237 - ALLAHABAD HIGH COURT], the writ petition deserves to be allowed on both the counts.
The matter is remanded to the adjudicating authority for passing a fresh order, in accordance with law, after giving opportunity of hearing to the petitioner within a period of three months from the date of production of certified copy of this order - Petition allowed by way of remand.
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2023 (3) TMI 1360 - ALLAHABAD HIGH COURT
Condonation of delay in filing petition - present petition under Article 226 of the Constitution of India has been filed after a delay of more than 2 years - detention of goods alongwith vehicle - vehicle number not mentioned on E-way bill - HELD THAT:- The appellate authority after considering the order passed by the adjudicating authority had noted that the appellant did not file any document/evidence to show that on e-bill vehicle number was mentioned. Once the papers were not in accordance with the provisions of Act, 2017 and rules made thereunder, the adjudicating authority has proceeded to assess the tax and imposed penalty. The appellate authority did not find any error on law or facts.
Sri H.N. Tiwari, learned counsel appearing for the petitioner submits that because of spread of COVID-19 the petitioner did not appear before the appellate authority. However, there is no explanation coming in the present petition regarding delay of more than two years. The only ground, which has been taken in the present petition, regarding delay and laches is the petitioner did not get copy of the impugned order - However, this ground falls on the ground by perusing the impugned order. After the impugned order was passed, a copy of order was sent to the Additional Commissioner- Grade 1, Assistant Commissioner and the petitioner. Moreover, it was the duty of the petitioner to find out what happened in the appeal which had been instituted by him.
This petition is liable to the dismissed on the ground of delay itself - Petition dismissed.
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2023 (3) TMI 1359 - PATNA HIGH COURT
Maintainability of petition - availability of statutory remedy of appeal - non-constitution of Tribunal - recovery of transitional credit - deduction of tax under Section 41 of the BVAT Act and carried forward under the VAT return - transitional to GST regime - HELD THAT:- Due to non-constitution of the Tribunal, the petitioner is deprived of his statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act. Under the circumstances, the petitioner is also prevented from availing the benefit of stay of recovery of balance amount of tax in terms of Section 112 (8) and (9) of the B.G.S.T Act upon deposit of the amounts as contemplated under Sub-section (8) of Section 112 - 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.
This Court in the case of Angel Engicon Private Limited vs. the State of Bihar & Anr. [2023 (3) TMI 879 - PATNA HIGH COURT] has disposed of the writ petition with certain observations and directions, allowing certain liberty to the petitioner, holding that the Court is of the opinion that since order is being passed due to non-constitution of the Tribunal by the respondent-Authorities, the petitioner would be required to present/file his appeal under Section 112 of the B.G.S.T. Act, once the Tribunal is constituted and made functional and the President or the State President may enter office.
There is an additional fact in the instant case, as asserted by the petitioner, that in terms of the liberty granted under earlier order dated 09.12.2022, in these proceedings, he has already deposited 20 percent of the remaining amount of tax in dispute.
Subject to verification of the fact of deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, or deposit of the same, 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, for he 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.
The instant writ petition disposed off subject to conditions imposed.
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2023 (3) TMI 1358 - ALLAHABAD HIGH COURT
Search and seizure - Valuation of goods - service of SCN (to accountant of the firm) - goods quantified only on the basis of the eye estimation - power of taking recourse to Section 73 or Section 74 of the Act, while proceeding to pass an order under Section 130 of the GST Act - Whether tax can be assessed/ determined in exercise of powers under Section 130 of the GST Act? - HELD THAT:- In the light of what has been decided by this Court in the case of M/s Metenere Limited [2020 (12) TMI 790 - ALLAHABAD HIGH COURT], it is clear that the entire exercise resorted to under Section 130 of the GST Act for assessment/ determination of the tax and the penalty is neither stipulated under the Act, nor can be done in the manner in which it has been done, more so, in view of the fact that the department itself had undertaken the exercise of quantifying the tax due, by taking recourse under Section 74 - As the entire tax has been determined and the penalty has been levied only on the basis of a survey by taking recourse under Section 130 of the GST Act and not taking a recourse to Section 74, the order impugned is clearly unsustainable.
Whether penalty can be levied only on the allegations that at the time of verification of goods, the goods in excess were found at the premises? - HELD THAT:- On a plain reading, the scope of Clause (ii) of sub-section (1) of Section 130 is that any assessee who is liable to pay tax and does not account for such goods, after the time of supply is occasioned, would be liable to penalty under Clause (ii). Analyzing Clause (iv) of sub-section (1) of Section 130, the contravention of any provision of the Act or the Rules should be in conjunction with an intent to evade payment tax and penalty can be levied by invoking Clause (iv) only when the department establishes that there were a contravention of the Act and Rules coupled with the ‘intent to make payment of tax’. There is no such allegation in the show cause notice or any of the orders, I have no hesitation in holding that even the Clause (iv) of sub-section (1) of Section 130 would not be attracted in the present case.
Whether the service of notice as claimed by the respondent satisfies the requirement contemplated under Section 169 of the GST Act? - HELD THAT:- In terms of Clause (a) of Section 169(1), a service would be completed only when it is tendered to the taxable person or on his Manager or authorized representative. - Serving on the Accountant of the firm is neither contemplated nor provided for under Section 169(1)(a) and thus, the service as claimed by the Counsel for the respondent on the Accountant cannot be held to be a valid service, thus, on that count also, the entire proceedings are liable to be quashed.
Whether the valuation of goods can be done on the basis of eye estimation alone and on the basis of production capacity and/ or the consumption of electricity etc? - HELD THAT:- In the present case, the valuation of the goods is required to be done in terms of the mandate of Section 15(1) read with Section 15(2) and read with Section 15(3). In the said Section 15 or the Rules framed thereunder, there is no prescriptions for valuation of the goods on the basis of eye estimation as has been done by the department and has been repelled by the appellate authority. The appellate authority has erred in repelling the valuation done on the basis of eye estimation, however, has proceeded to value the goods (although differently) at the appellate stage without resorting to the mandate and manner prescribed in Section 15 read with the Rules, thus, on that count also, the impugned order is not sustainable.
The impugned order dated 29.01.2019 is set aside and the writ petition is allowed.
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2023 (3) TMI 1357 - ALLAHABAD HIGH COURT
Detention of goods alongwith vehicle - detention mainly on the ground that the goods were without E-Way bill - petitioner argues that the order imposing the penalty that too on valuation without jurisdiction is wholly bad in law.
HELD THAT:- Section 7 of the Act provides for levy and collection of tax and Chapter IV provides for determination of value of supply. Section 15 of the Act provides for value of taxable supply, Section 15(4) makes it clear that if the value of the supply of goods or services or both cannot be determined under Section (1), the same shall be determined in such manner as may be prescribed - the value of the goods in transit is to be determined in accordance with the provisions of Section 15 declared in an invoice or a bill of supply or a delivery challan in respect of the consignment. Even Section 15 Sub-Section 1 of the Act prescribes that the value of the supply of goods or services shall be the transaction value which should include the amounts as clarified under Section 15(2) and the benefits as contained in Section 15(3). Recourse to Section 15 Sub-Section 4 can be taken only when the value of the supply of goods cannot be determined under Sub-Section 1.
In the present case, the value of the supply of goods is clear from the transaction value as indicated in the tax invoice which is on record and there being nothing on record to demonstrate that the said tax invoice was not acceptable to the respondents for any reason, as such, there are no hesitation in holding that in view of Explanation 2, Rule 138 read with Section 15(1), the transaction value is the value which is indicated in the invoice. Considering the fact that the petitioner has to be treated as the owner of the goods in view of the law laid down in the case of M/S MARGO BRUSH INDIA AND OTHERS VERSUS STATE OF U.P. AND ANOTHER [2023 (1) TMI 1237 - ALLAHABAD HIGH COURT], there are no hesitation in holding that the orders impugned insofar as it imposes the burden on the petitioner to get the goods released in terms of Section 129(1)(b) of the Act is bad in law.
The matter is liable to be remanded to the Assessing Authority to pass fresh orders treating the petitioner to be the owner of the goods in terms of the mandate of Section 129(1)(a) of the Act treating the valuation of the goods as specified in the invoice, however, as the petitioner is ready and willing to pay the liability in terms of Section 129(1)(a) of the Act, instead of remanding, it is deemed appropriate to direct the respondents to release the goods to the petitioners if the petitioners offer to pay two hundred percent of the tax payable on the goods valuing the same on the basis of the valuation as shown in the invoice - petition allowed by way of remand.
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2023 (3) TMI 1326 - DELHI HIGH COURT
Levy of penalty for late filing of the GST returns - cancellation of its GSTIN registration - HELD THAT:- It is clear from the above that the order dated 14.12.2020, rejecting the petitioner’s application for revocation of cancellation of GSTIN registration is unsustainable. It provides no reason as to why the petitioner’s application was rejected - the only reason is that the petitioner had not responded to the Show Cause Notice dated 27.10.2020. It is hard to accept that there could be any meaningful response to the said Show Cause Notice. It sets out no reason at all for proposing to reject the petitioner’s application for revocation of cancellation.
It is also noticed that the petitioner’s principal contention was that it had already complied with the requirement of filing the returns on the date when the order cancelling its registration was passed and, therefore, the said order was unsustainable - from the date of the petitioner filing an application for revocation of its cancellation, that is, 16.10.2020, the petitioner cannot be held responsible for not filing its returns during the period when the registration stood cancelled.
Thus, for the purpose of calculating any penalty for the late filing of the returns, the period, 16.10.2020 to 22.04.2022, is liable to be excluded.
List on 14.04.2023.
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2023 (3) TMI 1325 - DELHI HIGH COURT
Request for the statements to be videographed - permission to be accompanied by an advocate who will be present at the venue at a visible distance but not audible - HELD THAT:- It is directed that the statement of the petitioner or its officer shall be recorded during business hours that is during 09:00 a.m. to 07:00 p.m., shall be videographed during the said proceedings, and the concerned employee / officer of the petitioner company, if accompanied by an advocate would be allowed to remain at a visible but not audible distance.
Petition disposed off.
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2023 (3) TMI 1324 - MADRAS HIGH COURT
Rejection of request for amendment of TRAN-1 - HELD THAT:- The petitioner has categorically missed the bus, seeing as the judgment of 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 granted a window as a final opportunity for correction of all errors arising from filing of TRAN-1 and 2.
The petitioner, being an assessee for the purposes of the Act would/should, no doubt had been aware of all these developments and should have availed of the same in time. Substantial efforts were taken by the Registry of this Court as well as by the revenue authorities in listing those matters that related to amendment of TRAN-1 and 2 during the period when the benefit under the aforesaid judgment was operative, till 30.11.2022.
However, the primary responsibility for the same lies in the hands of the petitioner and as on date it is too late - The impugned order is hence confirmed and this writ petition, dismissed.
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2023 (3) TMI 1323 - PUNJAB AND HARYANA HIGH COURT
Seeking grant of regular bail - availment of input tax credit by fabricating invoices resulting in the generation of bills - evasion from payment of Goods and Services Tax (GST) - bail rejected on the ground that the petitioner is the main accused in a scam involving evasion of GST to the tune of crores of rupees and that in case he is released on bail, he is likely to influence the witnesses and in turn the course of his trial.
HELD THAT:- Primarily, the evidence collected by the State against the petitioner is documentary; investigation in this case is complete; it is not the case of the State that during the course of investigation the petitioner did not cooperate; the petitioner has already undergone actual custody of nearly 01 year and 05 months; even if convicted, the maximum sentence which can be imposed on him is 05 years; most of the material witnesses for the prosecution, at the precharge stage, stand examined; the proceedings that the petitioner faces are presently at the pre-charge stage in which 37 prosecution witnesses still remain to be examined and that in case the petitioner is even put to trial, the same is likely to take a long time to conclude.
The present case is considered to be a fit one in which the petitioner be directed to be released on regular bail. Resultantly, subject to the satisfaction of the CJM/Duty Magistrate, Gurugram, which shall include the condition of the deposit of the petitioner's valid passport, if any, the petitioner is directed to be released on bail.
Application allowed.
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2023 (3) TMI 1322 - GUJARAT HIGH COURT
Detention of goods and conveyance of the petitioner - interaction, interplay and inter se application of Section 129 and Section 130 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- As far as prayer for interim relief is concerned regarding release of the goods and vehicle of the petitioner, the same deserves to be considered on the same line and upon imposition of the similar conditions as done in M/S. VED ENTERPRISE VERSUS STATE OF GUJARAT [2022 (11) TMI 1335 - GUJARAT HIGH COURT].
It is directed that the respondents shall release the goods and conveyance of the petitioner, confiscated and detained pursuant to the aforementioned order No. 877 dated 12.11.2022 passed in FORM GST MOV-11, subject to the conditions imposed - application allowed.
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2023 (3) TMI 1321 - AUTHORITY FOR ADVANCE RULING, RAJASTHAN
Scope of Advance Ruling - Levy of GST - Government Subsidy - Applicant is involved in installation of Solar system on roof top and subsidy is provided by Central Govt. for this work through Renewable Energy Corporation - How to Generate GST including Subsidized Invoice?
HELD THAT:- Applicant filed their application before the Rajasthan Authority for Advance Ruling (RAAR) on 14.10.2022 i.e. much later from the supply of services. Applicant is discharging his GST liability since starting on the service supplied by him and asked advance ruling when subsidy has not been given to him from concern department. It is observed that applicant motto is to find out whether the mechanism opted by him for payment of GST on said service is right or wrong, which is against the spirit of advance ruling.
From the definition of Advance Ruling, it is very much clear that the scope of the ruling for Authority for Advance Ruling (AAR) is limited to the transactions being undertaken or proposed to be undertaken - In the instant case, the application seeking advance ruling was filed on 14.10.2022 before the RAAR with respect to supplies already being undertaken and GST being paid. Hence, the case is out of the purview of the Advance Ruling.
The subject application for advance ruling made by the applicant is not maintainable and hereby rejected under the provisions of the GST Act, 2017.
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