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GST - Case Laws
Showing 141 to 160 of 2178 Records
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2023 (12) TMI 556
Exemption from GST - solid waste disposal work - Validity of assessment order - works contract - stay of recovery on payment of 20 per cent of the amounts disputed which remains to be paid - HELD THAT:- There is no supply of goods in the solid waste management disposal work awarded to the petitioner. In the above circumstances, the activity of the petitioner regulated by the work order produced as Annexure-5 and the consideration received for the same would be exempt from the BGST Act. It is also crystal clear that on similar circumstances, by Annexure-6 order, the Appellate Authority had allowed the appeal in the case of a different assessee, who had been carrying on the very same work of solid waste disposal in the very same Municipality.
The assessment orders produced as Annexure-3 series, the demand notices and Annexur-4 series orders in appeal are set aside. The assessee petitioner is directed to produce the details of the tax deduction at source made by the Municipality under the Income Tax Act and provide the evidence, of the consideration made by the Municipality on which the tax deductions were effected under the Income Tax Act, being one for solid waste disposal work. The assessee shall appear before the Assessing Officer within a month from the date of receipt of the certified copy of this judgment and produce materials in substantiation.
The writ petition is allowed.
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2023 (12) TMI 555
Levy of penalty under Section 125 of the GST Act - petitioner was asked to furnish the returns within 15 days, which was duly complied with, inspite of which penalty is imposed - non-application of mind - HELD THAT:- Admittedly since the petitioner had complied with the terms of the show cause notice by furnishing the returns, there was no lawful justification to impose the penalty.
The impugned orders dated 10.02.2023 and the order dated 14.03.2023 are contrary to law and passed on non application of mind and are set aside - Petition allowed.
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2023 (12) TMI 554
Input Tax Credit - credit availed on the basis of invoices issued by the suppliers whose registrations were cancelled retrospectively - interest not paid while tax payment in cash during the months of April, May, July and November 2018 and March 2019 was delayed - HELD THAT:- Revenue though tried to justify the impugned notice, but did not produce any document to demonstrate that the registration of any of the firms was ever cancelled during the assessment year 2018-19 either in the form of averments or in the form of attached documents.
During the course of arguments it is transpired that admittedly there is no express/physical letter by the respondents on record showing cancellation of the registration of any of the dealers / suppliers in question retrospectively particularly for relevant assessment year 2018-19.
Under such circumstances, nothing survives in the show cause notice to address upon on merits - the impugned notices (Annexure P/1 and P/3) to that extent are hereby quashed - petition disposed off.
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2023 (12) TMI 553
Maintainability of petition - availability of alternative remedy - confiscation of the goods and conveyance for realisation of penalty and fine - HELD THAT:- In the light of the submission that same order may be passed, petition is disposed of reserving liberty to the petitioner to challenge the impugned order in terms of Section 107 of the Karnataka Goods and Services Tax Act, 2017. It is further observed that time spent during the pendency of the present proceedings can be sought to be excluded while calculating the period of limitation.
The petition is disposed of granting liberty to the petitioner to avail substantive remedy as against the impugned order subject to the above observation.
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2023 (12) TMI 552
Nature of supply - supply of goods or supply of service - business of assembly, manufacture and supply of aircrafts - supply under the contract between the applicant & Airbus - appropriate classification - rate of tax - value to be adopted for the purpose of payment of GST - time of supply for payment of GST.
Whether the nature of the supply under the contract entered into between the applicant and Airbus would qualify as ‘supply of goods’ or otherwise? - HELD THAT:- The supply of aircrafts & provision of support services are naturally bundled & supplied in conjunction with each other in ordinary course of business & hence in terms of section 2(30) of the CGST Act, the aforesaid said supply is a composite supply - Even otherwise in the instant case, the applicant’s supply involves goods i.e. aircrafts and maintenance etc. which is a service. The contractual agreement between the applicant and Airbus requires the applicant to supply the aircrafts and provide for its maintenance etc. The applicant therefore is engaged in two taxable supplies. What is pivotal is that the supply of service is possible only when the goods i.e. aircrafts are supplied. Hence, the contract is a composite supply which are naturally bundled and supplied in conjunction wherein the principal supply is that of aircrafts.
What will be the appropriate classification and rate of tax of the said supply? - HELD THAT:- Since it is already held that the contract with Airbus for supply of aircraft is a composite supply, and that the principal supply being supply of goods viz aircraft, it is held that aircrafts are classifiable under CTH 8802 & will attract GST @ 5% in terms of notification No. 1/2017-IT (Rate) dated 28.6.2017 entry no. 244.
Value to be adopted, for the purpose of payment of GST - HELD THAT:- In this case, the applicant relying on clause 1 [which defines FIM] and clause 4.2 of the contract and clauses 1.3 and 2.3.7 of the SoW, is of the view that since the FIM were supplied free owing to a contractual obligation and also on account of the difficulty laced in indigenization, this will not form part of the value of supply - However, the issue of valuation of free supplies under GST has been decided by the Honblé Chhattisgarh High Court in the case of M/s. Shree Jeet Transport [2023 (11) TMI 206 - CHHATTISGARH HIGH COURT] where it was held that though the diesel was provided free of cost by the service recipient, it would nevertheless be added to the value for the purpose of GST.
The issue therefore is no longer res Integra having been decided by the Hon’ble High Court of Chhattisgarh, following the judgement of the Honblé High Court, it is held that the value to be adopted for the purpose of payment of GST in respect of 40 aircraft will include the supply made free of cost by Airbus i.e. will include the value of FIMs also.
Time of supply for payment of GST - HELD THAT:- A conjoint reading of section 12 with notification No. 66/2017-CT, clearly leads one to a conclusion, that provision on payment of tax on advances received on supply of goods, stands deleted vide notification No. 66/2017-CT dated 15.11.2017. Therefore, the contention of the applicant is agreed upon that they are not required to pay GST on the receipt of advance in the case of supply of goods.
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2023 (12) TMI 516
Exemption from GST - leasing of residential premises as hostel to students and working professionals - it was held by High Court that The service provided by the petitioner i.e., leasing out residential premises as hostel to students and working professionals is covered under Entry 13 of Notification No.9/2017 dated 28.09.2017 namely 'Services by way of renting of residential dwelling for use as residence' issued under the Act. The petitioner is held entitled to benefit of exemption notification.
HELD THAT:- Leave granted.
List on 24.01.2024.
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2023 (12) TMI 514
Release of detained goods alongwith vehicle - owner of the goods - proceeding initiated under Section 129 of the CGST Act - whether the goods may be released by the authorities under Section 129(1)(a) or 129(1)(b) of the CGST Act? - HELD THAT:- In the present case, goods were found with proper tax invoice and E-way bill belonging to the petitioner. Hence, Circular dated December 31, 2018 would apply and the petitioner would be deemed to be the owner of the goods. Ergo, the goods would have to be released in terms of Section 129(1)(a) of the CGST Act.
The order passed by the authorities dated October 19, 2023 is quashed and set aside. The authorities are directed to carry out the exercise in terms of Section 129(1)(a) of the CGST Act within a period of three weeks from today - Petition allowed.
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2023 (12) TMI 513
Rectification of mistake in Form GSTR-3B by accounting input tax credit as IGST instead of SGST and CGST credit - permission to petitioner to refund IGST Input tax credit and thereafter, adjust the same towards SGST and CGST liability - reconsideration of Exhibit.P3 or P6 by considering evidences produced by petitioner, especially in the fact that, IGST credit and liability towards CGST and SGST are same - Exhibts.P3 and P6 are just and legal or not - seeking to dispense with the production of translation of vernacular documents.
HELD THAT:- The present writ petition is disposed of with a direction to the 3rd respondent to consider Ext.P4 and Ext.P5 as a rectification application filed by the petitioner/assessee and pass necessary orders expeditiously in accordance with the law, after giving an opportunity of hearing to the petitioner.
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2023 (12) TMI 512
Violation of principles of natural justice - impugned order is passed without an opportunity of a personal hearing being granted to the petitioner - contrary to Section 75(4) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The impugned order is passed contrary to the principles of natural justice as recognised by the provisions of Section 75(4) of the CGST Act and, therefore, it satisfies one of the parameters for exercising discretion of this Court to entertain the petition inspite of there being an alternate remedy of an appeal.
This is a clear case where the adjudicating officer was required to take into consideration the specific request as made by the petitioner that an opportunity of personal hearing be granted to the petitioner. When such specific plea was taken, a mechanical approach was adopted by the adjudicating officer in only noticing the box where inadvertently the petitioner had put a tick mark on ‘No’. Thus, this was not a case where the petitioner had expressly waived its right of personal hearing.
In the absence of the petitioner waiving its right of a personal hearing, the provisions of Section 75(4) of the CGST Act were squarely applicable and accordingly, an obligation was cast on the adjudicating officer to grant an opportunity of hearing to the petitioner. Thus, the petitioner having not been granted hearing, the impugned order would be required to be held to be in breach of the principles of natural justice and ex-facie contrary to the provisions of Section 75(4) of the CGST Act.
Respondent no. 3 shall grant an opportunity of personal hearing to the petitioner and after considering all contentions of the petitioner, pass an appropriate order in accordance with law. The aforesaid exercise be undertaken by respondent no. 3 within a period of four weeks from the date of hearing - impugned order set aside - petition allowed.
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2023 (12) TMI 511
Rectification of uploaded GSTR-1 statement in GST portal for the periods August 2017, November 2017, December 2017 and January 2018 which involves Input Tax Credit - HELD THAT:- This Court in similar case in DEEPA TRADERS VERSUS PRINCIPAL CHIEF COMMISSIONER OF GST & CENTRAL EXCISE CHENNAI, TAMIL NADU, SUPERINTENDENT OF GST, CENTRAL EXCISE, COIMBATORE GOODS AND SERVICES TAX NETWORK (GSTN), NEW DELHI [2023 (3) TMI 628 - MADRAS HIGH COURT] has allowed the petitioner to file the corrected GSTR-1 statement and upload the rectified GSTR-1 in GST portal.
By following the same, this Court also directs the respondent to permit the petitioner to upload the rectified GSTR-1 statement within a period of four weeks from the date of receipt of a copy of this order.
Petition disposed off.
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2023 (12) TMI 510
Exemption from GST - renting of residential dwelling to the students and working women for residential purpose along with amenities and facilities such as food, furniture, appliance, cleaning, security, pest control etc., on monthly rental basis - exemption under entry No. 12 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 - rate of GST - claim of ITC on input used for providing taxable service.
HELD THAT:- The term 'residential dwelling' is neither defined in the Notification nor in the CGST Act 2017/ rules made there under. However the Education guide on Taxation of services, issued by the CBIC under erstwhile Service Tax Law, at para 4.13.1 while answering the question "What is a 'residential dwelling'?" directed to interpret the term 'residential dwelling' in terms of the normal trade parlance, as per which it is a residential accommodation, but does not include hotel, motel, inn, guest house, camp-site, lodge, house boat, or like places meant for temporary stay. Therefore it could be inferred from the above that residential dwelling is a residential accommodation meant for permanent stay and does not include guest house, lodge or like places. A residential accommodation to qualify for permanency of stay would typically have at least one room for exclusive use, a kitchen or facility to cook, essentials like electricity, water provided through metered/sub-metered connections or charged on actual usage, among others.
The resident/inhabitants are offered a unit i.e a portion of a room with a cot on monthly rental basis. Further monthly rent also is charged and collected for the unit only but not for the residential dwelling. Thus the impugned accommodation being provided does not qualify to be a residential dwelling. Further it is seen that units are shared by one or more unrelated inhabitants. Applicant charges all the inhabitants of a room individually and not for a room as a whole. It is apparent that the accommodation provided to each of the inhabitant is not a residential dwelling but a cot / a unit in the room; un-related people share the said room and invoices are raised per bed on monthly basis are not characteristic of a residential dwelling - Further, it is also an admitted fact that the accommodation being provided by the applicant, out of the immovable property claimed as residential dwelling, does not have individual kitchen facility to each of the inhabitant and also cooking of food by inhabitants is not allowed, which are an essential characteristic for any permanent stay. On this count as well, the impugned accommodation being provided does not qualify to be a residential dwelling and thus the question of using the same as residence does not arise.
The impugned accommodation being provided by the applicant are akin to provision of unit of accommodation in a paid guest house or a hostel and does not qualify to be a residential dwelling. Also the facilities such as food, furniture, appliance, cleaning, security, pest control etc., being provided by the applicant to the resident are not optional and the resident cannot choose the service provider. These facilities are mandatorily provided by the applicant and included in the monthly charges. Also the essentials like electricity and water are not charged based on usage, but a fixed amount is charged. Thus the service provided by applicant are unit accommodation for residence and not renting of residential dwelling - the services being provided by the applicant do not qualify for exemption under SI No. 12 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, as amended.
If applicant transaction is not exempt, then what is the GST rate? - HELD THAT:- In the instant case the applicant is providing accommodation services consisting of rooms or units, without kitchens & with daily housekeeping services on a single or multi occupancy basis and thus merits classification under SAC 996311. Further the applicant is an establishment that provides the services that are akin to the services provided by Hotels, INN, Guest houses, Clubs & other similar establishments. The rent being charged per person per unit per day is less than rupees seven thousand five hundred and thus the impugned services, covered under SAC 9963, attract GST @ 12%, in terms of entry number 7(i) of Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017, as amended.
If applicant transaction is taxable, whether applicant can claim ITC on input used for providing taxable service? - HELD THAT:- The applicant can claim ITC on inputs used for providing the impugned taxable services subject to fulfilment of the conditions stipulated under Sections 16 & 17 of the CGST Act 2017 and the rules made thereunder.
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2023 (12) TMI 509
Classification of supply - rate of GST - Supply or not - damages received by the applicant from the tenant towards the termination of sub-lease before the agreed upon lock-in period as per the sub-lease deed agreements - amount received towards damages as per the settlement agreement to be construed as Consideration for the above supply or not? - HELD THAT:- Amounts paid for early termination of lease as contemplated by the contract as part of commercial terms agreed to by the parties, constitute consideration for the supply of a facility, namely, early termination of a lease agreement. Therefore, such payments, even though they may be referred to as fine or penalty, are actually payments that amount to consideration for supply, and are subject to GST, in cases where such supply is taxable. Since these supplies are ancillary to the principal supply for which the contract is signed, they shall be eligible to be assessed as the principal supply.
In view of CBIC circular No. 178/ 10/2022, it is clear that amount paid for termination of lease constitute consideration for the supply of a facility and are subject to GST and they shall be eligible to be assessed as the principal supply. In the impugned case the principal supply is sub letting of a commercial property which is a taxable supply of service and is classified under chapter heading 9972 - Real Estate Services.
The damages received by the applicant from the tenant towards the termination of sub-lease before the agreed upon lock-in period as per the sub-lease deed agreements tantamount to supply as per Section 7 of Central GST Act, 2017 and the amount received towards damages as per the settlement agreement is to be construed as Consideration for the above supply - The services provided by the Applicant are classifiable under Chapter heading 9972 and is liable to GST at 18% (9% CGST and 9% SGST).
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2023 (12) TMI 508
Classification of goods - rate of tax - Two wheeler seat covers - to be classified under HSN code 9401 2000 or 87089900 or under or 87149990?
HELD THAT:- The commodity manufactured by the Applicant i.e., Two Wheeler seat cover does not merit classification either under CTH 8708 or 9401 and if the Seat covers are cleared under CTH 87149990 the GST applicable is not 5% as collected by some of the taxpayers - Motorcycles are classified under CTH 8711 and on the seats of such Motorcycles, the seat covers are fitted. Hence, these seat covers are nothing but part and accessories of Motorcycles and fall under CTH 8714, and more specifically under CTH 87149990.
Thus, the Two wheeler seat covers are specifically covered under CTH 87149990 and are taxable (@ 14% CGST + 14% SGST vide entry no. 174 of Schedule IV of Notification No. 1/2017- CT(Rate), dated 28.6.2017, as amended.
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2023 (12) TMI 507
Levy of GST - supply or not - recovery of subsidised value from employees for providing canteen facility - HELD THAT:- 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 - Thus supply made by a taxable person in the course or furtherance of business is an ‘Outward supply’.
It was also the contention of the Applicant that the amount received from the employees is in the nature of reimbursement of the cost incurred by the Applicant and there is not enforceable reciprocal obligations. However, the running of canteen in the premises of the Applicant is in the course of furtherance of business. It is also clear that in running of such a canteen, the employer, i.e., the Applicant is mandated to bear certain costs. Provision of canteen facility and bearing certain costs in running of canteen are mandated on the part of the employer as per the Factories Act. Accordingly, such canteens are provided. It has been established that the supply of food in the canteens are ‘Supply of Service’ by the Applicant - In the instant case, the Appellant had established the canteen in their premises and has been bearing a part of the cost for providing the food/beverages to their employees and a part of the cost is being collected from employees, by adopting subsidized rates. 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.
Whether subsidized food is a perquisite to employees forming a part of the wage agreement and HR policy of the Applicant? - HELD THAT:- The intention of the Circular no. 172/04/2022-GST dated 06.07.2022 of CBIC 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. We find 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.
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2023 (12) TMI 469
Maintainability of appeal - requirement of deposit - whether on filing an appeal the ten per cent of the due amounts are to be paid from the Electronic Cash Ledger or the Electronic Credit Ledger? - HELD THAT:- It is noticed from Notification No. 53/2023 dated 02.11.2023 issued by the Ministry of Finance, Department of Revenue (Central Board of Indirect Taxes and Customs), which permitted filing of delayed appeals even beyond the period provided under Section 107 of the GST Act, that the stipulation was of paying an amount of 12.5 per cent of the amounts pending and due to be paid to the Department as against the 10 per cent prescribed by the statute. In the said Notification issued by the Central Government on the recommendation of the GST Council, it has been specifically stated that at least 20 per cent of the 12.5 per cent remaining due and payable should be paid from the Electronic Cash Ledger. Hence, even the GST Council understood the ten per cent to be enabled for payment through the Electronic Credit Ledger.
It is pointed out that in the present case, already ten per cent of the amount remaining due and payable is remitted from the Electronic Credit Ledger which would make the appeal maintainable and the Appellate Authority shall consider it on merits.
Petition allowed.
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2023 (12) TMI 468
Cancellation of GST registration with retrospective effect - impugned order does not indicate any reasons for cancelling the registration - Violation of principles of natural justice - HELD THAT:- It is apparent that the impugned order, which is bereft of any reasons, cannot be sustained. However, the petitioner is not aggrieved by the cancellation of late Shri Khurana’s registration, as according to him the business was closed down. He is aggrieved by the cancellation to the extent that it is effected retrospectively, from the date the registration was granted.
It is considered apposite to direct that the order cancelling the registration shall take effect from 18.05.2020, the date of the Show-Cause notice. This is because it is the petitioner’s case that no business was conducted thereafter - petition disposed off.
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2023 (12) TMI 467
Confiscation of goods alongwith vehicle - Petitioner submitted that the petitioner is willing to furnish bond and sureties against the demand of tax, penalty etc. - HELD THAT:- Considering the said statement, the present writ petition is disposed of with liberty to the petitioner to approach the 1st respondent for release of the vehicle and the 1st respondent will take a decision for release of the vehicle on furnishing bond and sureties, in accordance with the law.
Petition disposed off.
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2023 (12) TMI 466
Seeking release of goods alongwith vehicle - Validity of summons and the endorsement issued by respondent No. 2 - petitioner is ready and willing to pay the penalty, if there are any excess goods carried in the vehicle, but he does not admit excess goods having been carried and any violation having been committed - HELD THAT:- It is in the interest of the petitioner that he would participate in the physical verification and inquiry on the basis of the summons issued for physical verification of the goods, cooperate with the inquiry that would be conducted by the respondents and comply with the requirements as sought for by the respondents in production of documents as sought.
The petitioner is duty bound by law to answer the summons issued by the respondents and to produce the documents. At the same time, the petitioner is at liberty either to make good the penalty or to challenge the said order before the appropriate forum - it is deemed appropriate to dispose of the petition.
The petitioner shall approach respondent No. 3 and participate in the inquiry on the basis of the summons issued at Annexure – G - petition disposed off.
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2023 (12) TMI 425
Maintainability of appeal - appeal rejected as being defective for non-payment of the pre-deposit - HELD THAT:- Issue notice to the respondents.
Pending disposal of this matter, the observations in the impugned order shall remain stayed.
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2023 (12) TMI 424
Validity of Rule 96(10)(b) of Central Goods and Service Tax Rules, 2017, / State Goods and Service Tax Rules 2017 - HELD THAT:- Reliance placed in the order dated 06.04.2023, passed by the Coordinate Bench of this Court in CA (For Stay) No. 1 of 2023 in Special Civil Application No. 7711 of 2021 [2023 (4) TMI 1268 - GUJARAT HIGH COURT], whereby, the Court has granted interim relief in favour of the petitioner, therein.
Issue NOTICE, making the same returnable on 21ST JUNE, 2023.
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