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GST - Case Laws
Showing 181 to 200 of 2178 Records
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2023 (12) TMI 289
Seeking direction to respondent to consider the representation of the petitioner dated 18.10.2023 - HELD THAT:- The respondent directed the petitioner to pay a sum of Rs. 4,34,522/-. According to the provision of Section 107 of Goods and Services Tax Act, 2017, if the petitioner paid 10% of the outstanding tax dues along with penalty, the respondent proceedings will be automatically stayed. The said legal position was also confirmed by the learned counsel for the respondents. In such view of the matter, in the present case, since the petitioner had paid a sum of Rs. 83,000/-, the respondent is supposed to have de-freeze the bank account of the petitioner as per Section 107 of the Act.
The respondents are directed to consider the representation of the petitioner dated 18.10.2023 and de-freeze the petitioner's bank account, upon the production of proof of deposit of Rs. 83,000/- or 10% of the total demand made by the respondent - Petition disposed off.
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2023 (12) TMI 288
Restoration of Appeal filed by the Petitioner - appeal decided without considering the period of limitation for filing of appeal in terms of provisions of Section 107 of the CGST Act / RGST Act - HELD THAT:- Hon’ble Supreme Court on 10.1.2022, while taking cognizance for Extension of Limitation (Miscellaneous Application No.21/2022 in MA 665/2021 in SMW(C) No.3/2020) [2022 (1) TMI 385 - SC ORDER] has passed a general order and observed that in case where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, all the affected persons shall have a limitation period of 90 days from 01.03.2022.
Taking into consideration the overall facts and circumstances of the case and keeping in view the order dated 10.1.2022 passed by the Hon’ble Supreme Court, it is opined that the respondents were required to decide the appeal filed by the petitioner on merits while condoning the delay.
The order dated 5.1.2022 passed by the appellate authority is set aside. The appellate authority is directed to decide the appeal filed by the petitioner against cancellation of GST Registration on merits expeditiously while treating the same within limitation - Petition allowed.
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2023 (12) TMI 287
Classification of supply - composite supply or mixed supply? - supply of services of coaching to students which also includes supply of goods/printed material/test papers, uniform, bags and other goods to students against a lump-sum amount - HELD THAT:- The student kit is integral to one overall supply i.e. supply of coaching services in the instant case. If one or more is removed, the supply would be affected as removal of the student kit would affect the studies of the students (no printed material or study material or exam papers or course planner and only coaching would definitely affect the studies of the students) and furthermore the nature of the ancillary services/goods in this package is facilitative to the students as well - the amount of the printed material, uniform and bags form a small proportion of the total value of the supply as part of the package. Moreover, when the appellant is not separately selling their bags, uniforms and printed material, it is not difficult to infer that their students enjoy these goods only as a part of composite services of educational/coaching services.
No student would choose only the student kit and not the coaching. Here the AAR judgement fails prima facie, because the students cannot opt for only coaching service without receiving the student kit. The students will only pay for principal supply and anyways are going to receive the student kit. The student kit is part of the package of the coaching services and is not sold separately by the appellant or even by their network/channel partner. It is therefore to be treated as composite supply.
The supply of coaching service by the appellant along with supply of goods/printed material/test papers, uniform, bags and other goods to their students is composite supply and their principal supply is coaching services.
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2023 (12) TMI 286
Scope of Advance Ruling application - rectification of mistakes while filing FORM GSTR-1 on the common portal for the financial year 2017-18 - HELD THAT:- As per sub-section (2) of section 97 of the GST Act, the question on which the advance ruling is sought under this Act, shall be in respect of, (a) classification of any goods or services or both;
(b) applicability of a notification issued under the provisions of this Act;
(c) determination of time and value of supply of goods or services or both;
(d) admissibility of input tax credit of tax paid or deemed to have been paid;
(e) determination of the liability to pay tax on any goods or services or both;
(f) whether applicant is required to be registered;
(g) whether any particular thing done by the applicant with respect to any goods or services or both amounts to or results in a supply of goods or services or both, within the meaning of that term.
The question on which advance ruling is sought by the applicant is found not to be covered under any of the aforesaid clauses.
The applicant was allowed an opportunity for personal hearing and the aforesaid observation was brought to the notice of the authorised representative of the applicant in course of hearing - the question on which advance ruling is sought by the applicant is not covered under any of the clauses under sub-section (2) of section 97 of the GST Act, there may not be any reason to accept the application made by the applicant for pronouncement of ruling.
Application rejected.
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2023 (12) TMI 239
Valuation - reimbursement of expenses - includibility - Rule 5 of the Service Tax (Determination of Value) Rules, 2006 - HELD THAT:- The issues which arise in these appeals are covered by the judgment of this Court in UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [2018 (3) TMI 357 - SUPREME COURT] where it was held that only with effect from May 14, 2015, by virtue of provisions of Section 67 itself, such reimbursable expenditure or cost would also form part of valuation of taxable services for charging service tax.
The Civil Appeals are dismissed.
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2023 (12) TMI 238
Refund of amount deposited by the petitioner during the course of inspection/search conducted at his premises - seeking that the order authorizing the search/inspection under Section 67 the Central Goods and Services Tax, 2017 read with Rule 139 (1) of the Central Goods and Services Tax Rules, 2017 be set aside - legality of search of business premises and seizure.
The petitioner impugns the proceedings initiated under Section 67 of the CGST Act, inter alia, on the ground that the authorization for search is vague and imprecise.
Whether the search conducted in the premises of the petitioner under Section 67 of the CGST Act was illegal? - HELD THAT:- In the present case, the proper officer has issued the authorization in Form INS-01 setting out all the reasons as stated in Section 67(1)(a) of the CGST Act and all the reasons (except the taxpayer claiming refund in excess of his entitlement) as set out in Clause A for issuing such authorization. Thus, there may be some merit in the grievance of the taxpayer that the proper officer has not set out any specific reason but has merely reproduced all reasons on the basis of which an authorization under Section 67(1)(a) of the CGST Act could be issued. However, it is seen that the reasons as set out are connected - The respondents have not referred to any specific reason for initiating the proceedings under Section 67 of the CGST Act, in their counter affidavit, except to state that the reasons to believe were duly recorded on the file prior to conducting the search and the inspection.
Thus, it cannot be accepted that the authorization for conducting search or inspection under Section 67 of the CGST Act is illegal for want of reasons to believe that the grounds for conducting the said search as set out in Section 67(1)(a) of the CGST Act, exist.
Whether the petitioner is entitled to reversal of the ITC that was debited from his ECL? - HELD THAT:- Undisputedly, a taxpayer has an option to voluntarily pay tax on a self-ascertainment basis prior to issuance of a show cause notice. In terms of Section 73(5) of the CGST Act, a person chargeable to tax may before service of a notice under Section 73(1) of the CGST Act or prior to the statement under Section 73(3) of the CGST Act, pay an amount of tax along with interest payable thereon under Section 50 of the CGST Act and inform the proper officer of such payment in writing - the provisions of Sub-sections (5) and (6) of Section 73 of the CGST Act are for the benefit of a taxpayer who voluntarily pays tax on his own ascertainment prior to issuance of any show cause notice and thus, absolves himself of liability to pay penalty in respect of the tax paid. Sub-section (5) of Section 74 of the CGST Act is in somewhat similar terms except that the taxpayer is also required to pay penalty equivalent to 15% along with tax deposited on the basis of his own ascertainment. The provisions of Sub-sections 73(5) and 74(5) of the CGST Act are not provisions under which the Department can compel a taxpayer to deposit tax - The respondents are directed to reverse the ITC of ₹18,72,000/- deposited by the petitioner on 08.10.2022 and forthwith credit the same in his ECL.
Petition disposed off.
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2023 (12) TMI 237
Doctrine of merger - Refund of IGST - zero rated supply - export of services - reverse charge mechanism - adjustment of interest amount - time limitation.
Adjudicating Authority had allowed the petitioner’s claim for the refund of IGST of ₹24,33,20,306/- but, had adjusted an amount of ₹5,08,03,767/- on account of interest liability.
Whether, in the given facts, the stipulated time for filing the appeal is required to be reckoned from 24.09.2019? - HELD THAT:- The said question is required to be answered in the negative - It cannot be accepted that the appeal filed by the Revenue against the Order-in-Original dated 24.10.2018 was within the period of limitation for several reasons. First, it is found difficult to accept the Revenue’s explanation regarding delayed communication of the Order-in-Original dated 24.10.2018. As noted above, there is no explanation as to how the concerned officer became aware of the Order-in-Original dated 08.08.2019. It is also relevant to note that although, the Revenue had placed on record orders seeking certified copies of the Orders-in-Original dated 24.10.2018 and 08.08.2019 from respondent no. 2, there is no communication, issued by the Principal Commissioner (respondent no. 1), either protesting or calling for an explanation as to why the Orders-in-Original dated 24.10.2018 and 08.08.2019 were not communicated to the Commissioner by respondent no. 2.
The petitioner had filed an appeal against the said Order-in-Original dated 24.10.2018. The Revenue had notice of the said appeal but no one had appeared on behalf of the Revenue at the hearing held by the Appellate Authority on 29.03.2019. There is no allegation that the Order-in-Appeal dated 30.04.2019 disposing of the appeal was passed without affording the Revenue any opportunity to contest the same. The Revenue had taken no steps to challenge the Order-in-Appeal dated 30.04.2019 passed by the Appellate Authority.
Whether the order-in-original dated 24.10.2018 merges with the appellate order? - HELD THAT:- It is apparent that the Appellate Authority had upheld the admissibility of the petitioner’s claim for refund of IGST as well as the order adjusting the interest on delayed payment of IGST on inputs and IGST on exports. The matter ought to have concluded at that. However, the matter was remanded to the Adjudicating Authority. The Appellate Authority has found no fault with the admissibility of the petitioner’s claim for refund, the matter was remanded to the Adjudicating Authority for a limited purpose and the proceedings before the Adjudicating Authority on remand were confined to the examination of the provisions of law under which any adjustment on account of any unadjudicated interest liability was permissible - there is no doubt that the Order-in-Original dated 24.10.2018 stood merged with the Order-in-Appeal dated 30.04.2019. The Revenue’s contention that the matter was set at large in view of the remand order is unmerited. Consequently, the Revenue appeal in respect of matter determined in the Order-in-Appeal dated 30.04.2019 was not maintainable.
Whether adjustment of interest liability is permissible? - HELD THAT:- In case there are contentious issues, which require to be adjudicated, a proper notice is required to be issued to the taxpayer and the quantum of interest payable is required to be adjudicated. In the present case, the adjudicating officer has adjudicated the interest payable and there is no dispute as to the material facts on the basis of which said interest is calculated. In these circumstances, the principles of natural justice are satisfied and there was no requirement for the Adjudicating Authority to issue any further notice. The petitioner has also availed of remedy of an appeal under Section 107 of the CGST Act - there are no infirmity with the process of adjusting interest as payable on the admitted tax against the amount refundable to a tax payer.
Whether the petitioner is liable to pay interest as determined by adjudicating authority - HELD THAT:- The assumption that since the transaction of imports and exports is revenue neutral, the same would absolve the petitioner from payment of GST or any interest thereon is contrary to law. It is not open for the assessee to plead that since the supply imported was required to be exported, the petitioner was absolved from the statutory levy under the IGST Act. Refund of unutilized ITC or GST is available only in terms of the relevant statutory provisions.
A claim for refund of tax collected in accordance with law is a statutory right and is circumscribed by the statutory provisions. There is little scope for imputing principles of equity in matters of tax, which are covered by the statutory provisions.
The interest liability on delayed payment of IGST is the statutory consequence of the assessee’s claim that the exports made by it were on payment of IGST. There is no dispute that the IGST on the exports during the months of July, 2017 to March, 2018 was liable to be paid on various dates in August, 2017 to April, 2018 as mentioned in the tabular statement as set out by the Adjudicating Authority in the Order-in-Original dated 24.10.2018 - It is evident that the petitioner has been mulcted with the huge interest liability on delayed payment of IGST, which in one sense is unwarranted, however, that is the consequence of the course adopted by the petitioner.
Denial of refund in entirety an account of amendment in return/invoices is impermissible? - HELD THAT:- The revenue’s contention that any claim for refund of ITC would be barred is also not persuasive. If the refund of IGST on exports was rejected on the ground that petitioner could not amend the invoices, it would follow that its claim would be required to be considered for the ITC utilised to pay such IGST. It is difficult to accept the Revenue’s contention that the petitioner had forfeited its right to claim refund on account of an attempt to amend its option as available under Section 16(3) of the IGST Act, as in force at the material time - It is not necessary for this Court to examine the aforesaid contentions in any further detail as the same relate to the appeal filed by the Revenue, which as stated above, was beyond the period of limitation.
It is directed that the refund sanctioned by the Adjudicating Authority in terms of the Order-in-Original dated 08.08.2019 be disbursed to the petitioner along with applicable interest - petitioner’s claim that the adjustment of interest amounting to ₹5,08,03,767/- is illegal is rejected - impugned Order-in- Appeal dated 14.10.2020, to the extent it denies the petitioner’s claim for refund in entirety is set aside - petition disposed off.
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2023 (12) TMI 236
Levy of penalty u/s 129 (3) of the West Bengal Goods and Services Tax Act, 2017 - detention of goods - E-way bill yet to expire - non-speaking impugned order - violation of principles of natural justice - HELD THAT:- In the facts of the present case, the appellant had suffered a notice under Section 129 (1) of the Act of 2017 to which, there was a response dated June 22, 2022. The notice in Form GST Mov - 07 being a notice under Section 129 (3) of the Act of 2017, was undated. The response dated June 22, 2022, thereto, has referred to a subject of GST Mov - 2 dated June 19, 2022. However, GST Mov – 2 dated June 19, 2022 is not an order of detention. The order of detention is Form GST Mov -07 which has been undated in its soft version and a date of June 26, 2022 written on the left hand top corner on the hard copy thereof served on the driver of the vehicle.
Sub-Section (3) of Section 129 of the Act of 2017 has a requirement of issuance of notice with sub-Section (4) thereof, mandating the Adjudicating Authority not to pass an order of penalty without affording an opportunity of hearing to the defaulter. Compliance of principles of natural justice is inherent in any adjudicating proceedings unless specifically ousted by a statute. In the present case, Section 129 (3) and (4) of the Act of 2017 require compliance with the provisions of principles of natural justice prior to pronouncement of an order of penalty. Requirement of compliance with the principles of natural justice before passing an order of penalty ipso facto means that, the Adjudicating Authority has the jurisdiction to evaluate the merits of the defence taken and speak thereon. The mechanism provided under Section 129 of the Act of 2017 allows the Adjudicating Authority to accept the explanation given by a defaulter in given facts and circumstances and not to impose a penalty.
By virtue of the authoritative pronouncement of the Supreme Court in Shriram Mutual Fund and Another [2006 (5) TMI 191 - SUPREME COURT], Guljag Industries [2007 (8) TMI 344 - SUPREME COURT] and Saw Pipes Limited [2023 (4) TMI 761 - SUPREME COURT] the department has been relieved of the burden of proof of mens rea or motive in respect of a statute imposing penalty as a civil obligation for violating a tax regime. However, absence of requirement to establish mens rea by the department cannot be equated with an automatic imposition of penalty under the scheme of Section 129 of the Act of 2017 in view of the provisions of Section 129 (3) and (4) thereof.
In the facts of the present case, e-way bill in respect of the goods transported was yet to expire when, the new vehicle had been detained. The explanation given by the appellant that, the driver of the old vehicle did not know the law and therefore did not comply with the same and did not inform the appellant about the same, should have been evaluated, in the facts and circumstances of the present case, by the Adjudicating Authority in light of the e-way bill being valid till then in respect of the first vehicle - Appellate Authority had the jurisdiction and in fact was obliged to deal with the grounds of appeal pressed at the hearing of the appeal. Respondent has not contended that, the defence canvassed in the show cause notice and the grounds pressed in the appeal were not canvassed or pressed by the appellant at the time of hearing before the Adjudicating or the Appellate Authority.
The impugned order of the Adjudicating Authority as upheld by the Appellate Authority to have violated the principles of natural justice, inasmuch as it has not spoken on the defence taken - the impugned judgement and order of the learned Single Judge is set aside.
Application disposed off.
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2023 (12) TMI 235
Initiation of recovery proceedings - issuance of notice under Section 62 of the Land Revenue Act - Petitioner had been asked to appear before the Tehsildar on 4th of October, 2023 to deposit the default amount along with two percent of recovery charges.
HELD THAT:- Since, the State Taxes (Recovery) Officer had taken up the matter with the District Collector, Srinagar for recovery and, it appears that he had assigned the matter to Special Tehsildar, Recoveries, Srinagar for further proceedings in the matter. Rule 155 of the Goods and Services Tax Rules provides as to how the Land Revenue Authority has to recover the amount. It provides that where an amount is to be recovered in accordance with the provisions of clause (e) to Sub-Section (1) of Section 79 of the Goods and Services Tax Act, the Proper Officer shall send a certificate to the concerned Deputy Commissioner, vested with the power of Collector under the Jammu & Kashmir Land Revenue Act, Samvat 1996, in form GST DRC-18 to recover from the person concerned, the amount specified in the certificate, as if it were an arrear of land revenue. As, the Proper Officer of the Taxes Department had moved the Deputy Commissioner, Srinagar, who is the Collector of the District in form GST DRC-18 in his communication dated 25th of March, 2023, therefore, there does not seem to be any illegality as to how the Petitioner is aggrieved of the recovery proceedings against him initiated through the office of Special Tehsildar Recoveries, Srinagar.
The arrest and detention of the defaulter is provided under Section 63 of the Jammu & Kashmir Land Revenue Act, authorizing the Revenue Officer, not below the rank of Tehsildar, to issue a warrant directing to arrest the defaulter and bring him before the Revenue Officer and, on such production, the Revenue Officer may cause him to be taken before the Collector or may order that he be confined to civil jail for a period not exceeding six days and then, if the arrear is still unpaid, cause him to be taken before the Collector and, for the continued default, the Collector can confine the defaulter in jail for such period not exceeding one month from the date of the order, as the Collector thinks fit.
The contention of the learned Counsel for the Petitioner that the non-bailable warrant dated 19th of August, 2023 has been issued to him and has not been recalled, though applied for, seems to be an incorrect statement in view of the summons issued on 22nd of September, 2023 to the Petitioner for appearing before the Court of Special Tehsildar Recoveries, Srinagar on 4th of October, 2023. It appears that the Petitioner has been labouring under a misconception that the Tehsildar Recoveries is not a competent authority to recover the tax amount from him by issuing writ of demand/ summon to the Petitioner as defaulter and, in default, to issue nonbailable warrant.
The instant Petition seems to be misconceived and, therefore, the proceedings initiated by the Respondent No.4 against the Petitioner do not call for any interference by this Court - Petition dismissed.
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2023 (12) TMI 234
Levy of penalty u/s 129 of the Central Goods and Services Tax Act, 2017 - bill of entry mentioned on the e-way bill was erroneous - HELD THAT:- Since the present petition has been pending here for over two years, we were inclined to hear the present petition. However, it is pointed out that the notice of the present petition was incorrectly accepted by the counsel and the fact that this petition was filed was not communicated to the concerned department for over two years.
The learned counsel appearing for the respondents also earnestly contends that the department could not be faulted for not raising this issue at an earlier stage.
The present petition cannot be entertained - it is left open for the petitioner to avail its alternative remedies including the remedy of an appeal under Section 107 of the CGST Act - petition disposed off.
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2023 (12) TMI 233
Refund of IGST - Ocean Freight Charges by the respondent - Reverse Charge Mechanism (RCM) - time limitation - HELD THAT:- Recently, this Court had passed an order in M/S. LENOVO (INDIA) PVT. LTD., REP. BY ITS AUTHORIZED SIGNATORY MR. SEIYADOU AHAMADOU VERSUS THE JOINT COMMISSIONER OF GST (APPEALS-1) O/O. THE COMMISSIONER OF GST & CENTRAL EXCISE (APPEALS-I), THE ASSISTANT COMMISSIONER OF GST AND CENTRAL EXCISE, DIVISION I, PUDUCHERRY COMMISSIONERATE, THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, REP. BY ITS CHAIRMAN, UNION OF INDIA [2023 (11) TMI 774 - MADRAS HIGH COURT], wherein it has been held that the fixation of limitation for making refund application is only directory in nature and the same is not mandatory. Accordingly, the limitation of 2 years, which was provided under Section 54(1) of the Goods and Services Tax Act, 2017, is directory in nature. In such case, if any reasons were provided for delay in filing the refund application, the same shall be considered and the said delay shall be condoned by the respondent.
Thus, this Court is of the view that the impugned order dated 24.09.2023 is liable to be set aside - petition disposed off.
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2023 (12) TMI 232
Determination of Tax / GST - Validity of order passed u/s 75(4) - Violation of principles of natural justice - impugned order is passed without providing an opportunity of personal hearing to them and also without considering the written submissions and documents filed by the petitioner - HELD THAT:- This is the problem the assessees throughout India are facing, i.e. when it is uploaded as “Yes, it shows as “No” in the downloaded printout. The specific request made by the petitioner in the reply by way of prayer was, to provide opportunity of personal hearing, in the event of passing any adverse order against the petitioner.
Considering the provision under Section 75 (4) of the Central Goods and Services Tax Act, 2017 which mandates the respondents to provide an opportunity of personal hearing, where any adverse decision is contemplated against the assessee, irrespective of any request of personal hearing from the petitioner. Further, the petitioner has also stated in the reply filed to the show cause notice that they may be provided an opportunity of personal hearing, in the event of passing any adverse order against them.
This Court is of the considered view that at any cost, the respondents ought to have afforded the opportunity of personal hearing to the petitioner considering the statement that the respondent is going to determine the turn over and should have complied the provisions of the Act strictly. Otherwise, this defect could not be rectified which would cause loss of revenue to the Department.
This Court is inclined to set aside the impugned order passed by the first respondent. Accordingly, the impugned order in Assessment Order is set aside - Petition allowed.
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2023 (12) TMI 231
Seeking direction to respondents to allow the petitioner to correct the details filled in Form GSTR-1 for the month of December, 2017 - Details of export supplies are also to be furnished in Form GSTR-1 - HELD THAT:- Reference, at this stage, can be made to the judgment passed by the High Court of Madras in M/S. SUN DYE CHEM VERSUS THE ASSISTANT COMMISSIONER (ST), THE COMMISSIONER OF STATE TAX [2020 (11) TMI 108 - MADRAS HIGH COURT] wherein the Court was examining the issue with regard to grant of permission to correct the Form GSTR-1 for the periods from August, 2017 to December, 2017. In that case, an error was committed while filing the details relating to the credit. After examining Sections 37 and 38 of the Central GST Act, 2017, the writ petition was allowed by granting permission to the petitioner to re-submit Form GSTR-3B with correct distribution of credit between IGST, SGST and CGST within a period of four weeks.
In the facts of the present case as well, on account of technical grounds, the application for correction of Form GSTR-1 has been dismissed by the respondent-department. Moreover, the time of revising the Form GSTR-1 got expired on 31.03.2019 and the petitioner had approached GST Help Desk. Without making correction in Form GSTR-1, the petitioner could not get refund under the Central GST Act, 2017.
The petitioner(s) are permitted to re-submit the corrected Form GSTR-1 for the aforesaid period. The respondents can receive the application(s) manually and thereafter, the corrected Forms and details will be uploaded by the Department on the web portal. The directions given by this Court be carried out within a period of four weeks - Petition allowed.
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2023 (12) TMI 230
Benefit of exemption - Supply of Services by RWA - Contribution charged to a member exceeds INR 7500 per month - Benefit of Notification No. 12/2017 dated 28-6-2017 (Sl. No. 77) read with Notification No. 2/2018 dated 25-1-2018 - tax on amount charged over and above Rs. 7,500/- or the entire amount collected from members is exigible to tax? - Liability of GST on the amounts collected for corpus fund from members - CGST/ SGST on collection of common area electricity charges from the members when the same is recovered on actual basis.
Whether tax would be charged over and above Rs. 7,500/- or the entire amount collected from members is exigible to tax? - HELD THAT:- The Government intends to provide the exemption only in cases where contribution received from a member per month is below the specified limit of Rs. 7500/-. In other words, where the contribution exceeds the limit, taxability of such services by RWA shall not get covered by entry number 77 of the aforesaid notification. We are, therefore, unable to accept the contention of the applicant that in the event of the monthly contribution charged to a member exceeding Rs. 7,500/- per month, tax is payable only on the differential amount.
Liability of GST on the amounts collected for corpus fund from members - HELD THAT:- A sinking fund is created in order to meet future contingencies e.g., to meet the expenses for structural repairing, reconstruction work etc. RWA creates a sinking fund which serves as a backup fund for supply of specific services. A member contributes to the sinking fund with an agreed condition that the RWA will provide some specific services in future, as and when required out of the said fund - the amount collected by the applicant from its members towards sinking fund is only meant for meeting expenses for future supply of services and therefore such contribution cannot qualify as a deposit - thus it is held that the amount collected by the applicant from its members for setting up a sinking fund is an advance payment towards future supply of services and such payment comes under the definition of ‘consideration’ under clause (31) of section 2 of the GST Act. The applicant is, therefore, liable to pay tax on such supply in terms of sub-section (2) of section 13 of the GST Act. It would be pertinent to mention here that we are not in agreement with the view expressed by the officer concerned from the revenue on this issue.
Whether the applicant is liable to pay CGST/ SGST on collection of common area electricity charges from the members when the same is recovered on actual basis? - HELD THAT:- In the instant case, admittedly the applicant collects the electricity charges consumed for common area from its members on pro-rata basis. In course of hearing, the authorized representative of the applicant has furnished copy of one tax invoice in support of ‘Common Area Maintenance’ issued to a member - electricity is being supplied bundled with supply of goods and services sourcing from a third person for the common use of its members. Thus supply of electricity forms a part of composite supply where the principal supply is the supply of common area maintenance services. The applicant is therefore liable to pay tax on collection of common area electricity charges if the services for common area maintenance fails to qualify for exemption under serial number 77 of the Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, as amended and as discussed earlier.
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2023 (12) TMI 229
Profiteering - Respondent had not passed on the benefit of reduction in the GST rate - non-reduction of selling price commensurately - contravention of provisions of section 171 of CGST Act - HELD THAT:- The profiteered amount is determined as Rs. 6,58,523/- as has been computed in Annexure-1 & 2 of the DGAP's Report dated 29.01.2021. Accordingly, the Respondent is directed to reduce his prices commensurately in terms of Rule 133 (3) (a) of the above Rules. Further, since the recipients of the benefit, as determined above are not identifiable, Respondent is directed to deposit an amount of Rs. 6,58,523/- in two equal parts of Rs. 3,29,261.50/- each in the Central Consumer Welfare Fund and the Uttar Pradesh State Consumer Welfare Fund as per the provisions of Section 171 read with Rule 133 (3) (c) of the CGST Rules 2017, along with interest payable @ 18% to be calculated from the dates on which the above amount was realized by the Respondent from his recipients till the date of its deposit. The above amount of Rs. 6,58,523/- shall be deposited, as specified above, within a period of 3 months from the date of passing of this order failing which it shall be recovered by the concerned CGST/SGST Commissioner.
Penalty - HELD THAT:- The Respondent has denied the benefit of tax reduction to the customers in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and he has thus committed an offense under Section 171 (3A) of the above Act and therefore, he is liable for imposition of penalty under the provisions of the above Section. However, since the provisions of Section 171 (3A) have come into force w.e.f. 01.01.2020 whereas the period during which the violation occurred is w.e.f. 01.07.2017 to 30.06.2019, hence the penalty prescribed under the above Section cannot be imposed on Respondent No. 1 retrospectively. Accordingly, Show Cause Notice directing him to explain why the penalty prescribed under Section 171 (3A) of the above Act read with Rule 133 (3) (d) of the CGST Rules, 2017 should not be imposed on him is not required to be issued.
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2023 (12) TMI 161
Provisional attachment of petitioner’s bank account - time limitation - cessation of attachment after the expiry of a period of one year from the date of the order made - HELD THAT:- It is informed that final orders on such show cause notice are reserved. In these peculiar circumstances and considering the fact that the impugned provisional attachment order itself is dated 17 March, 2023 and this petition also being filed on 16 October, 2023, it would be appropriate and in the interest of justice that the Adjudicating Authority passes a final order on the show cause notice.
The revenue has stated that the orders on the show cause notice shall be passed by the Adjudicating Authority within a period of four weeks from today - such statement is accepted.
The petition is disposed off by continuing the ad-interim order passed.
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2023 (12) TMI 160
Cancellation of GST registration of petitioner - cancellation for the reason that the petitioner did not submit returns for a period of six months and more - HELD THAT:- As per the provisions contained in the proviso to sub-rule [4] of Rule 22 of the CGST Rules, 2017, this Court is of the considered view that in the event the petitioner approaches the officer, duly empowered, by furnishing all the pending returns and make full payment of the tax dues, along with applicable interest and late fee, the officer duly empowered, has the authority and jurisdiction to drop the proceedings and pass an order in the prescribed Form.
This writ petition is disposed of by providing that the petitioner shall approach the concerned authority within a period of 2 [two] months from today seeking restoration of his GST registration.
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2023 (12) TMI 159
Maintainability of petition - availability of alternative remedy - Recovery of ITC towards SGST and CGST along with interest and penalty - HELD THAT:- As against the impugned order dated 08.05.2023 passed by the first respondent, the petitioner is having a statutory appeal remedy before the Deputy Commissioner, Tirunelveli - this writ petition is disposed of with liberty to the petitioner to file statutory appeal before the Deputy Commissioner, Tirunelveli, within a period of four weeks.
Freezing of petitioner's bank account - HELD THAT:- The issue with regard to the freezing of petitioner's bank account shall be decided by the Deputy Commissioner. As an interim arrangement enabling the petitioner to file the appeal, the Deputy Commissioner, Tirunelveli, shall permit the petitioner to take 10% of the amount required for filing the appeal from his Bank Account within a period of four weeks.
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2023 (12) TMI 158
Waiver of the amount of late fee referred to in Section 47 of the CGST Act - HELD THAT:- This Court is of the prima facie view that any person who has filed GSTR 9/9C in respect of the financial years 2017-18, 2018-19, 2019-20, 2020- 21, 2021-22 up to 31st August, 2023 should be eligible for the concessional late fee as mentioned in the said notification otherwise it would amount to violation of Article 14 of the Constitution of India inasmuch as no intelligible differentia is coming out from the Scheme to differentiate an assessee/dealer who had filed GSTR-9/9C before 1st April, 2023 and an assessee/dealer who has filed GSTR-9/9C in between 1st April, 2023 to 31st August, 2023. This Court is of the view that any assessee/dealer who has filed the returns in GSTR- 9/9C in respect of the financial years from 2017-18 to 2021-22 before 31st August, 2023 should be eligible for concessional rate of late fee as prescribed in the said notification.
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2023 (12) TMI 157
Cancellation of GST registration of the petitioner - non compliance of specified provisions of GST Act and the Rules made therein - petitioner could not participate in the proceedings to defend itself in the Show Cause proceedings - allegation that, the petitioner is engaged in Bill Trading without actually supplying the goods - HELD THAT:- The impugned order has been passed on 25.04.2023 is an appealable order in terms of Section 107 of the TNGST Act, 2017. Although attempt is made by the learned counsel for the petitioner to show that the petitioner has a huge place of business from where the petitioner is trading in goods, such disputed question of facts cannot be decided in this summary proceedings under Article 226 of the Constitution of India.
This Writ Petition has to fail. However, liberty is given to the petitioner to file a statutory appeal before the Appellate Authority under Section 107 of the TNGST Act, 2017, within a period of 30 days from the date of receipt of a copy of this order - Petition dismissed.
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