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GST - Case Laws
Showing 101 to 120 of 1991 Records
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2023 (12) TMI 726 - KARNATAKA HIGH COURT
Revocation of tagging/naming the petitioner as “risky exporter” - requirement of verification in terms of Circular No. 131/01/2020-GST - HELD THAT:- In light of the admitted fact that process of verification is not completed, the authorities to strictly adhere to the time frame stipulated in the Circular at Annexure-A. On the lapse of three weeks from today in the event, verification is not completed in terms of procedure at Annexure-A, alert and E.O. remark classifying exporter as “risky” for grant of refund would stand stayed, which would not come in the way of verification as per law which must be completed within a period of one month thereafter.
The petition is disposed off.
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2023 (12) TMI 725 - APPELLATE AUTHORITY FOR ADVANCE RULING, GUJARAT
Local Authority or not - GST on procurement of security services received from any person other than body corporate under reverse charge mechanism - exemption granted in sl. no. 3 of Notification No. 12/2017 Central Tax (Rate) or sl. no. 3 of Notification No. 09/2017 IGST (Rate) - levy of GST on advertisement services or the service recipient of AJL is required pay GST under reverse charge mechanism considering Notification no. 13/2017-Central tax (Rate) dated 28-06-2017 - requirement to be registered as a deductor under GST as per the provision of Section 24 of the CGST Act.
Whether the appellant is a 'local authority' as claimed by the appellant? - HELD THAT:- The appellant is a legal person, formed as a Special Purpose Vehicle and incorporated under the Companies Act. The averment that since they are funded by the Central funds, which is routed through AMC, they are in control/management of the municipal or local fund, is a proposition difficult to agree with. The appellant is neither a Municipal Committee, nor a Zilla Parishad nor a District Board. Now, as far as 'other authority' which is legally entitled to/entrusted by the Central/State Government with the control/management of a municipal or local fund is concerned, though they are granted Central funds as loan by AMC the appellant is not in control/management of a municipal/local fund - the appellant is not a 'local authority'.
Ongoing through sections 25 to 29A, 342, 355 and 357, ibid, it is found that AMTS is a statutory authority discharging municipal functions as stipulated under the GPMC Act. It is on this ground that GAAR held AMTS to be a local authority. While relying on the advance ruling in the case of AMTS, the appellant failed to point out as to under which section of the GPMC Act the Ahmedabad Janmarg Limited was incorporated as a Public Limited Company and was entrusted with the Municipal functions of providing transportation facilities. Thus there is clear cut distinction as far as AMTS is concerned which is a statutory authority in terms of the GPMC Act, which incidentally is not the case with the appellant as far as the present dispute is concerned.
The appellant is neither a department nor establishment of the Central/State Government, nor a local authority as we have already held above nor persons or category of persons notified under notification No. 50/2018-CT - the appellant cannot deduct tax & hence is not required to be registered as deductor under GST. As far as 'Governmental agencies' are concerned, it is found that this has been dealt with in para 21.2 of the impugned order in detail. The Appellant has not produced anything to interfere with the findings of the GAAR.
Appeal rejected.
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2023 (12) TMI 724 - AUTHORITY FOR ADVANCE RULING, TAMILNADU
Classification of goods - frozen chicken - Poultry Meat Not Cut in pieces - to be classified under HSN Code 02071200 or not - Poultry Meat Cuts and Offal - to be classified under HSN Code 02071400 or not? - N/N. 2/2017-CT (Rate) dated 28.06.2017 - HELD THAT:- If the packaged commodities viz. the impugned products containing quantity of more than 25 kg are meant for institutional consumers, then the same would be exempted under SI.No. 9 of Notification No. 2/2017-CT (Rate) dated 28.06.2017 as amended - From the plain reading of the definition of 'institutional consumers', it means that the packaged commodities, firstly, should bear a declaration not for retail sale', secondly, it is meant exclusively for use by that institution; and thirdly, it is not for commercial or trade purposes.
It is found that a declaration that 'packed exclusively for institutional sale, not for retail sale' will be affixed on the bag. Hence the first condition is met. It is also found that the proposed sale is being made by the wholesale dealer/trader, in this case, the Applicant. Coming to the last condition, it is found that such sale proposed to be made by the Applicant, should also establish that it is not for commercial or trade purposes even though it is meant for use by that institution. As per the facts submitted by the Applicant, they intend to supply to institutional consumers such as The Indian Army, Ministry of Defence, The Park Hotel, Chennai etc. - for supplies to be made to institutional consumers, it is found that the exemption from GST as claimed by the Applicant would be available if and only if it fulfills all the conditions envisaged under Rule 2(bc) of the Packaged Commodities Rules 2011 for "Institutional Consumer".
As regards the supply of the impugned products to a distributor who would further supply to institutional consumers, Rule 3(c) of the Chapter II of the Packaged Commodities Rules, states that 'packaged commodities meant for industrial consumers or institutional consumers'. Thus the condition given in the said rule is that the end user should be industrial consumers or institutional consumers.
The Applicant has stated that the impugned frozen chicken is pre-packaged and labelled. Accordingly, adhering to other provisions of Legal Metrological Act, 2009, the rate of duty for the impugned frozen chicken is of 2.5% -CGST, 2.5% - SGST, in ease of intra-state supply, and 5% IGST in case of supply to inter-state, is payable.
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2023 (12) TMI 723 - AUTHORITY FOR ADVANCE RULING, TAMILNADU
Supply or not - recovery of subsidised value from employees for providing canteen facility - Canteen operated by the Applicant within the factory premises - Canteen run by Applicant's subsidiary company operating within common premises for which the subsidiary company recovers charges from the Applicant.
HELD THAT:- Applicant provides canteen facility either by himself or through a third party and is providing meals/food at concessional rates, i.e., no meal is extended free and specified amount in respect of the food consumed by the employee are collected by the Applicant against such consumption of food. Further, as seen from the documents furnished i.e. appointment order, availing the canteen facility made available by the Applicant in their premises is not mandatory.
Whether recovery of subsidised value from employees for providing canteen facility would amount to 'supply'? - HELD THAT:- The Act mandates establishing a canteen when more than two hundred and fifty workers are 'ordinarily' employed in a factory and as per sub-clause (2)(dd) above, certain expenditure are to be borne by the employer. Abiding by the above provisions, since the number of workers and contract labourers, ordinarily employed exceeds 250 in number, the Applicant has established a canteen - In the case at hand establishing a canteen facility in the unit is an activity incident to the running of their business. Factory Act, above mandates establishing canteen, bearing certain mandatory costs in running of the canteen by the employer in as much as the number of workers 'ordinarily employed' (workers & contract labourers) are above 250 per unit, which is the case in hand as per their submissions. Accordingly, the applicant has established the canteen in their premises and bears certain running cost while collecting the nominal rate as fixed by the Managing Committee, which is an activity in furtherance of their business.
In the case at hand, the Applicant supplies food to their employees at a nominal cost, and the same is the consideration for such supply made by the Applicant on which GST is liable to be paid - The supply of the food/beverages, although at subsidized rates, by the Applicant to their employees is certainly an activity amounting to supply of service and attracts levy of GST on that part of the consideration being charged for such supply. The supply of food by the employer, i.e, the applicant to their employees is composite supply of food held as 'Supply of service' as per Schedule-II of the GST Act and the amount collected by the Applicant is a 'Consideration' on which GST is liable to be paid.
Subsidized food is a perquisite to employees forming a part of the wage agreement and HR policy of the Applicant or not - HELD THAT:- A combined reading of the Circular no. 172/04/2022-GST dated 06.07.2022 of CBIC and the term 'perquisite', it is found that the intention of the Circular is to clarify that tax is not applicable on perquisite which is part of the employee agreement and which may be free of cost for the employees. Accordingly, in case where a recovery is made against a supply, even if it is subsidised, the same will be subjected to tax - it is found that the benefit of the non-levy of GST could be extended only to the extent of the consideration being borne by the Applicant out of the total cost for supply of the food/beverages, but not to the extent of the consideration being collected at the subsidized rates, by the Applicant from their employees. Thus, GST is to be levied on the amount recovered by the Applicant from the employees towards canteen provision.
Canteen facility is provided through a third party i.e. SACL - pure agent services or not - HELD THAT:- It was the contention of the Applicant that in respect of Model II, where canteen facility is provided through a third party i.e. SACL, the Applicant's role is limited to collecting the amount from the workers for onward payment to SACL and thereby they act as a pure agent. We find that this contention of the Applicant is not acceptable as the third party i.e. SACL is providing the canteen service to the Applicant and not to the employees. The Applicant in turn is providing the canteen facility to the employees. This fact is stated by the Applicant themselves in their application. Moreover, the first condition to act as a pure agent is that the service recipient should enter into a contractual agreement to authorize a person to act a pure agent for them. Whereas, in the present case, the employees have not authorised the Applicant to act as their agent. Hence this contention of the Applicant is totally not tenable.
The recovery of subsidised value from employees for providing canteen facility will amount to 'supply' under the CGST Act and GST is to be levied on the amount recovered by the Applicant from the employees towards provision of canteen facility.
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2023 (12) TMI 722 - AUTHORITY FOR ADVANCE RULING, TAMILNADU
Input tax credit on Basic Customs Duty (BCD), Countervailing Duty (CVD) and Special Additional Duty (SAD) - non-fulfillment of EPCG obligation can be taken as Input tax credit under GST or not - HELD THAT:- Rule 3 of CENVAT Credit Rules allows credit of additional duties of CVD and SAD paid under Section 3 of the Customs Tariff Act, 1975. However, upon the introduction of Goods and Service Tax Laws w.e.f. 01.07.2017, the levy of CVD and SAD of Customs were subsumed into GST.
In the present case the imports relate to a period prior 01.07.2017 and duties as applicable on the date of import was paid by the Applicant. However, in the GST regime, with respect to imported goods, the definition of Input tax and input tax credit as per Section 2 of the GST Act, 2017, (reproduced at para 6.2), includes only IGST charged on imports of goods. There is no provision under the GST Law for availing credit of CVD and SAD.
In case of the Applicant, Basic Customs Duty (BCD), Countervailing Duty (CVD), Special Additional Duty (SAD) along with interest has been paid towards non-fulfilment of prescribed export obligation on import of capital goods under EPCG scheme, which commenced before the implementation of GST and concluded post the implementation of GST.
Payment of Basic Customs Duty (BCD), Countervailing Duty (CVD), Special Additional Duty (SAD) made on non-fulfillment of export obligation under EPCG scheme, cannot be claimed as Input Tax Credit under GST Act, 2017.
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2023 (12) TMI 667 - BOMBAY HIGH COURT
Restoration of Petitioner's GST registration - SCN for cancellation of registration was not received by the petitioner, as the petitioner was not in Mumbai - HELD THAT:- There are much substance in the submission as urged on behalf of the petitioner. We may observe that in identical circumstances when similar show cause notice was issued without setting out any reasons, as also an order passed without application of mind, this Court had set aside the orders passed by the respondent in the decisions as relied on behalf of the petitioner and as noted by us hereinabove. The Court had quashed and set aside the show cause notices, however, remanding the proceedings for a fresh show cause notice to be issued in accordance with law by the designated officer.
The respondents are directed to issue a fresh show cause notice in accordance with law within a period of three weeks from today. The petitioner shall file a reply to the show cause notice within two weeks after receipt of the show cause notice. The designated officer shall thereafter proceed to hear the petitioner and pass appropriate orders in accordance with law.
Petition disposed off.
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2023 (12) TMI 666 - BOMBAY HIGH COURT
Violation of principles of natural justice - impugned order is passed without giving any personal hearing although mandated by Section 75(4) of the CGST Act - HELD THAT:- There has been a violation of principles of natural justice in passing the impugned order for more than one reason; firstly, under Section 75 sub-section (4), it is mandatory for the respondents to give a personal hearing to the petitioner if an adverse order is contemplated to be passed against the assessee. In the facts of the present case, a personal hearing was not given to the petitioner, inspite of an adverse order having been passed.
Secondly, the petitioner vide various emails requested for details of parameters No. 70 and 73 be furnished. However, details of such parameters were not furnished to the petitioner. There is no explanation by the respondents as to why details of parameter No. 72 were furnished and not the parameters of 70 and 73, except to state that everything is available on the portal. If it was available on the portal, then there was no reason why parameter 72 details were furnished and parameters 70 and 73 is not furnished.
Thirdly, the impugned order on one hand states that no reply is submitted, whereas on the other hand states that the documents were not sufficient which itself is self-contradictory.
Fourthly, the impugned order does not give any reasons of the alleged discrepancies so as to enable the petitioner to file its submission.
The impugned order would certainly be required to be held to be in breach of principles of natural justice so as to enable this Court to exercise jurisdiction under Article 226 of the Constitution of India although, an alternate remedy is available - order under Section 73 dated 26th July 2023 is quashed and set aside.
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2023 (12) TMI 665 - DELHI HIGH COURT
Petitioner’s right for cancellation of its Goods and Service Tax (GST) registration - petitioner states that the petitioner would join the investigation immediately - HELD THAT:- It is considered apposite to dispose of the writ petition by directing that the respondent shall take steps for cancellation of the petitioner’s GST registration in terms of its application.
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2023 (12) TMI 664 - BOMBAY HIGH COURT
Freezing of petitioner's bank account - violation of principles of natural justice - violation of statutory provisions in Section 73 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- There is a factual dispute with respect to service of notice as contended by the petitioner and the respondents. Admittedly, the petitioner had not informed about the change of email ID to the respondents. The petitioner is also not in a position to explain as to why the petitioner did not inform the change of email ID and why he did not check the portal although the petitioner himself contends that based on the new consultant’s advise, he made payment of shortfall for the period 2017-18.
This issue would require adjudication on facts which cannot be gone into under Article 226 of the Constitution of India. Therefore, it would be in the interest of the petitioner that the petitioner is relegated to the remedy of an appeal for adjudication of all his contentions including on natural justice.
Petitioner is relegated to alternate remedy of appeal - Petition disposed off.
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2023 (12) TMI 663 - BOMBAY HIGH COURT
Refund of tax paid on export of services - rejection of application for refund on the ground that there is no nexus between input and output supply - adequate opportunity to file the documents not provided to petitioner - violation of principles of natural justice - HELD THAT:- There appears to be an apparent violation of the principle of natural justice, inasmuch as the Order in Original was passed dated 30th December 2021 was passed without giving the petitioner adequate opportunity to file the documents which the petitioner had uploaded on 17th January 2022 by which time the Order in Original was already passed. The Order in Original dated 30th December 2021 does not contain any reason for rejection of the refund application. The Order in Appeal relies on Rule 89 of the CGST Rules which is not part of the show cause notice nor the same was put forth to the petitioner. Furthermore, the Appellate Authority had not called for the details on the basis of which he has rejected the appeal.
In the interest of justice, the Order in Original dated 30th December 2021 and Order in Appeal dated 4th May, 2022 is required to be set aside on the ground of the same being passed without considering such material - refund application is restored to the file of respondent no. 3 for fresh adjudication.
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2023 (12) TMI 662 - BOMBAY HIGH COURT
Refund of the Input Tax Credit (ITC) - primary ground of challenge as urged on behalf of the petitioner is that the Appellate Authority has erroneously proceeded to apply Circular dated 18 November 2019, which provides that the refund claim filed could not be spread across different financial years - HELD THAT:- There are much substance in the contentions as urged on behalf of the petitioner. It appears to be an admitted position that the petitioner had filed refund application under Section 54 (3) of the CGST Act for the “relevant period” which is defined under Rule 89(4) of the CGST Rules.
In the statutory pattern, the electronic ledger is required to be maintained, it was permissible for the petitioner to club the ITC credit available to the petitioner for the prior period. As the credit which was available for the period prior to 1 April 2018 pertained to the financial year 2017-18 the same was certainly available to the petitioner in its electronic ledger in the form of a running account - from the reading of the impugned order, it appears to be quite clear that such aspect of the matter has been overlooked and / or not addressed in so far as to what has been clarified by the department itself, so as to bring the interpretation as held by Circular dated 31 March 2020 to be in consonance with what has been provided by Rule 89(4) of the CGST Rules. It was neither permissible for the Appellate Authority to overlook the Rule as it stands nor disregard the Circular dated 31 March 2020. The appellate authority ought to have recorded a finding on such issue.
The order passed by the Appellate Authority cannot be sustained and would be required to be set aside - Petition allowed.
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2023 (12) TMI 661 - APPELLATE AUTHORITY FOR ADVANCE RULING, GUJARAT
Classification of supply - rate of GST - bundled services - composite supply of cattle feed plant under GST regime - contract involving supply of equipment/machinery & erection, installation & commissioning services without civil work thereof - works contract service or not.
Whether the composite supply towards setting up of cattle feed plant, by the appellant without civil work can be treated as 'immovable property’ and would fall within the ambit of 'works contract'? - HELD THAT:- The various equipments assembled by the appellant at their customer's premises arc cither fitted with foundation/structures or fitted on foundation/structures. The cattle feed plant which is set up by the appellant at their customer's premises cannot be shifted from one place to another without dismantling of all the equipments, machine parts and accessories and electrical systems - the cattle feed plant supplied involves supply of goods as well as services like installation, erection and commissioning of the plant. Thus, it is held it fulfills the criteria of an 'immovable property' as cattle feed plant is type of plant and machinery which is attached to earth or permanently fastened to anything attached to the earth.
Reference made to Board Circular No. 177/09/2022-TRU dated 03.08.2022, where it was clarified by CBIC that supply, construction, installation and commissioning of a dairy plant on turn-key basis constitutes as works contract and dairy plant which comes into existence is an immovable property.
The Cattle Feed Plant is an immovable property and supply of goods and services by the appellant for setting up and running of Cattle Feed Plant amounts to composite supply of works contract as defined in clause (119) of Section 2 of CGST Act, 2017.
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2023 (12) TMI 660 - AUTHORITY FOR ADVANCE RULINGS, KARNATAKA
Exemption from CGST - recognized Unit Run Canteen - goods sold to authorized customers - similar exemption available under State GST also or not - eligibility to claim refund of CGST and SGST paid on goods purchased till date.
Whether the applicant being a recognized Unit Run Canteen be exempted from levying CGST on goods sold by it to authorized customers? - N/N. 6/2017-Central Tax (Rate) dated 28.06.2017 - HELD THAT:- N/N. 6/2017-Central Tax (Rate) dated 28.06.2017 which clearly specifies that the CSD i.e. Canteen Stores Department, Unit Run Canteens of the CSD and the authorized customers of CSD are under the Ministry of Defence, Government of India. It is an admitted fact that the applicant is a subsidiary canteen of the Central Police Force Canteen System (CPFCS), under the Ministry of Home Affairs, Government of India, formed in terms of permission granted vide letter No. DA-VII/SC-CP/2013 dated 28.11.2013. Further, para 4(h) of the said letter specifies that "VAT as applicable in conformity with orders of State Government will be paid unless specifically exempted by notification of concerned State Government". Furthermore, the Central Police Force Canteen System (CPFCS) does not mention/use the terms 'Canteen Stores Department, Unit Run Canteens of the CSD and the authorized customers of CSD' in the aforesaid letter dated 28.11.2013. Thus the applicant is not covered under the Unit Run Canteen as they are a subsidiary canteen of CPF canteen under the Ministry of Home Affairs. Therefore the applicant is not entitled to claim the exemption provided under the Notification No. 7/2017-Central Tax (Rate) dated 28.06.2017.
Whether similar exemption can be availed under State GST also? - HELD THAT:- The applicant is not entitled for exemption provided under the Notification No. 7/2017-Central Tax (Rate) dated 28.06.2017. Since similar exemptions are issued by State GST on subject issues, it is found that the applicant is not entitled for any exemption even under the Notification issued by the State GST.
Is the applicant eligible to claim refund of CGST and SGST paid by it on goods purchased till date? - HELD THAT:- It is evident from above that the Notification No. 6/2017-Central Tax(Rate) dated 28.06.2017, specifies that "the Canteen Stores Department under the Ministry of Defence, as a person who shall be entitled to claim refund of fifty percent of the applicable central tax paid by it on all inward supplies of goods received by it for the purpose of subsequent supply of such goods to the Unit Run canteens of the CSD or to the authorized customers" - In view of the foregoing it is very clear that the notification is applicable only to the Canteen Stores Department under the Ministry of Defence, and not to any other Canteen Stores. In the instant case, the applicant canteen is formed under the orders of Ministry of Home Affairs and thus the notification No. 6/2017-Central Tax (Rate) dated 28.06.2017 is not applicable to the applicant and thereby they are not entitled to claim the benefit of the said notification.
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2023 (12) TMI 596 - MEGHALAYA HIGH COURT
Legality and Jurisdiction of SCN - Whether demand for GST on the annuity received by the petitioner from the National Highway Authority of India has been made in contradiction and violation of an exemption to annuity granted vide notifications dated 28.06.2017, 13.10.2017, 29.06.2017 and 09.11.2017? - HELD THAT:- On perusal of the materials as placed before this Court, it is seen that the writ petitioner has come against a show cause notice issued under Section 74 (1) of the CGST Act, 2017 read with the corresponding Section of the Meghalaya State GST Act, 2017, wherein the petitioner was to show cause within 30 days as to why the stated amount of GST allegedly short paid on the annuity payment received, along with interest and penalty be not realized from it.
The petitioner it appears instead of responding to the show cause have chosen to assail the same as has been discussed above. No doubt the writ petition cannot be said to be devoid of merit, but at this stage wherein final orders are yet to be passed by the respondents in the matter, and further with the submissions of the respondents that the matter is yet to be considered finally, this Court at this stage without further going into the merits, is not inclined to entertain the instant writ petition.
In the circumstances therefore, this writ petition being premature, the same is disposed of with the direction that the petitioner first pursues and participates in the proceedings initiated vide the impugned show cause notice, by responding to the same and placing the facts and materials which have been placed before this Court.
Petition disposed off.
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2023 (12) TMI 595 - GAUHATI HIGH COURT
Cancellation of GST registration of petitioner - non-filing of the returns for a continuous period of 6 months - HELD THAT:- This Court is of the view that since similar such orders have been passed by this Court as well as other Co-ordinate Benches, it will serve no purpose to keep the present writ petition pending.
The impugned order dated 20.01.2021 is hereby interfered with and set aside. It is directed that the Respondent No. 5, namely Superintendent of Central Goods & Services Tax, Guwahati will intimate the petitioner the total outstanding statutory dues, if any, standing in the name of the petitioner till the date of cancellation of his GST registration - Petition disposed off.
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2023 (12) TMI 594 - MADRAS HIGH COURT
Refund of unutilised Input Tax Credit - rejection on the ground that the petitioner is a SEZ unit and they are not entitled to file any refund application, but only the supplier of service - HELD THAT:- Both the learned counsel had referred to the following judgments of this Court, wherein this Court allowed the refund application holding that the SEZ unit is entitled to file the refund application.
Reliance placed in PLATINUM HOLDINGS PRIVATE LIMITED VERSUS ADDITIONAL COMMISSIONER OF GST & CENTRAL EXCISE (APPEALS-II) , ASSISTANT COMMISSIONER OF GST & CENTRAL EXCISE [2021 (10) TMI 630 - MADRAS HIGH COURT] and M/S. ATC TIRES PRIVATE LIMITED VERSUS JOINT COMMISSIONER OF GST & CENTRAL EXCISE (APPEALS) , ASSISTANT COMMISSIONER OF CGST AND CENTRAL EXCISE, TIRUNELVELI [2022 (4) TMI 1194 - MADRAS HIGH COURT] where it was held that The statutory scheme for refund under the CGST and SGST Acts, permits any entity to seek a refund of taxes or other amounts paid under the provisions of the Act, subject to satisfaction that is it so entitled, and that there is no double claim as against the same amount. Ordinarily, though zero rated supplies are not subject to the levy of taxes, the petitioner, in this case has remitted the same as raised in the invoice, albeit erroneously.
Therefore, by following the above orders passed by this Court in similar cases, the impugned orders dated 11.05.2023 and 23.03.2023 are set aside and the refund application dated 07.03.2022 filed by the petitioner is allowed. Further, this Court directs the 1st respondent to refund the amount of Rs. 20,32,325/- for the period from April 2020 to March 2021 and Rs. 5,42,614/- for the period from April 2021 to March 2022 along with interest at 6% p.a. to the petitioner within 60 days from the date of receipt of a copy of this order.
Petition allowed.
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2023 (12) TMI 560 - ALLAHABAD HIGH COURT
Seeking adjournment of the matter - learned Senior Advocate was unable to assist the Court - HELD THAT:- Prayer made is allowed.
List this matter on 8.12.2023.
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2023 (12) TMI 559 - DELHI HIGH COURT
Validity of search and authorization for conducting search - Recalling of records of the search authorization issued by the respondent, for conducting the search at the premises of the petitioner - issuance of summons u/s 70 - HELD THAT:- The record does not indicate that any further investigation was conducted prior to authorizing the inspection under Section 67(1) of the CGST Act. On 22.08.2023, the Commissioner, Central Tax GST issued an authorization (in FORM GST INS-01) for conducting inspection under Section 67(1) of the CGST Act at the premises of the petitioners - It is clear from the record that apart from the directions issued in terms of the order dated 05.04.2023, there were no reasons for the respondent to initiate the search against the petitioners under Section 67(1) of the CGST Act. The authorization issued is thus, patently erroneous as none of the grounds as set out in the said authorization are borne out from the information or material on the record of the respondent. Concededly, the inspection was conducted pursuant to the order dated 05.04.2023, passed by the learned Special Judge.
Petitioners’ prayer that the documents be returned to the petitioners - HELD THAT:- It is stated on behalf of the respondent that no documents have been seized, however, certain photocopies of the documents / documents were collected. Clearly, since the conditions for inspection under Section 67(1) of the CGST Act were not satisfied, the said documents are required to be returned to the petitioners. It is so directed.
Summons issued under Section 70 of the CGST Act - HELD THAT:- It is not considered apposite to issue any directions. The GST authorities are not precluded from continuing or initiating proceedings in accordance with the provisions of the CGST Act. Thus, if any information is available with the Department that requires an inquiry to be conducted against the petitioners, the respondent authorities are not impeded to do so. However, it is clarified that no further inquiries or action is required to be conducted or taken by the GST authorities, for complying with the order dated 05.04.2023 passed by the Special Judge.
Petition disposed off.
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2023 (12) TMI 558 - DELHI HIGH COURT
Validity of SCN issued - noncompliance of rule 142 (1) (a) and rule 142 (1A) of the CGST rules 2017 - seeking restraint from proceeding with the adjudication proceedings of the impugned SCN during the pendency of the present writ petition - HELD THAT:- The present petition is disposed of by directing the proper officer to issue summary of the notice and demands electronically in FORM GST DRC-01 & FORM GST DRC- 02 as expeditiously as possible and preferably within a period of one week from today, if not already done.
Petition disposed off.
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2023 (12) TMI 557 - ALLAHABAD HIGH COURT
Inconsistency of some interim orders passed by this Court as regards the amount of pre-deposit - Right of second appeal - petitioner contends that the ingredients of Section 74 of the U.P.GST Act, 2017 are not made out from the show cause notice as well as orders passed by the revenue authorities as prerequisites of Section 74 of the U.P.GST Act are not satisfied - HELD THAT:- The Uttar Pradesh Goods and Services Tax Act as well as the Central Goods and Services Tax Act contemplate pre-deposit of certain amounts i.e. 10% of the of the disputed tax liability before the first appellate authority. In addition to that, 20% of the disputed tax liability is liable to be deposited before the second appellate authority at the time of institution of the appeal.
The purpose of grant of interim orders in a lis and the need for consistency in granting orders in similar cases was underlined in SILIGURI MUNICIPALITY AND OTHERS VERSUS AMALENDU DAS AND OTHERS [1984 (1) TMI 63 - SUPREME COURT] where it was held that the main purpose of passing an interim order is to evolve a workable formula or a workable arrangement to the extent called for by the demands of the situation keeping in mind the presumption regarding the constitutionality of the legislation and the vulnerability of the challenge, only in order that no irreparable injury is occasioned. The Court has therefore to strike a delicate balance after considering the pros and cons of the matter lest larger public interest is not jeopardized and institutional embarrassment is eschewed.
In congruent facts, identical interim orders are liable to be granted, otherwise an anomalous situation will be created where similarly situated persons will be accorded differential treatment leading to discrimination and violation of Article 14 of the Constitution of India.
The second aspect which requires to be given weight is that the assessee cannot be faulted for what is essentially a failure of the Government. The statute contemplates deposit of 10% plus 20% of the disputed tax liability before the first and second appellate authorities respectively. By imposing a demand of 50% in these matters, the assessees will be penalized for no fault of theirs - The grant of interim orders in the aforesaid manner made in the said orders passed by this Court balances the interests of revenue as well as the rights of the assessees. However, it needs to be clarified that it is always open to the Court to grant interim orders which are at variance with the aforesaid orders in peculiar facts and circumstances of a particular case while exercising writ jurisdiction in the interests of justice.
The petitioner shall deposit 20% of the disputed tax liability in addition to the earlier deposit before the assessing authority (which is 10% of the disputed tax amount). Subject to the aforesaid deposit, the recovery proceedings of the balance amount shall remain stayed till the decision of this writ petition - The application for interim relief is finally disposed of.
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