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GST - Case Laws
Showing 21 to 40 of 2178 Records
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2023 (12) TMI 1310
Levy of penalty u/s 129 (3) of the West Bengal Goods and Services Tax Act, 2017 on goods detained - e-way bill did not contain the registration number of the vehicle transporting the goods - due to technical snag in the first vehicle (for which e-way bill was generated), the goods were transferred to second vehicle - case of appellant is that the driver of the first vehicle was ignorant of the legal requirements and therefore, did not initiate the process of generating a further e-way bill.
HELD THAT:- 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. He has to deal with the defence raised by the defaulter by a reasoned order. That is the mandate of Section 129 (3) and (4) of the Act of 2017 read together. The Adjudicating Authority has not done so. The Appellate Authority has also overlooked such fact.
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.
It is found that 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. Consequently, both the orders passed by them are set aside - Adjudicating Authority under the Act of 2017 is directed to decide on the show cause notice, in light of the reply to the show cause notice dated June 22, 2022, afresh after giving an opportunity of hearing to the appellant through its authorized representative - application disposed off.
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2023 (12) TMI 1296
Seeking grant of bail u/s 439 CrPC - Offence punishable under Sections 132(1)(b)(c)(f)(K) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- It appears that petitioner was arrested in the present case on 25.06.2023 and investigation has been completed; there are no antecedents of petitioner and punishment for the alleged offence of evasion of tax is to the extent of five years and fine as prescribed u/s 132(1) of the CGST Act, 2017. The Hon’ble Supreme Court in case of Ratnambar Kaushik [2022 (12) TMI 263 - SUPREME COURT], released the petitioner on bail after undergoing incarceration period of more than four months and in view of fact that conclusion of trial will take some time, Thus considering the period of incarceration of petitioner for about six months, but without commenting on merits of the case, this Court deems it just and proper to release petitioner on bail.
Accordingly, the bail application is allowed and it is ordered that accused-petitioner Rishabh Jain S/o Shri Yogesh Jain shall be released on bail provided.
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2023 (12) TMI 1294
Principles of Equity - Challenge to garnishee order issued by the Department of Sales Tax - HELD THAT:- If the case of the petitioner is appreciated on the premise of equity, the action of the respondents can certainly be inequitable. But the fact remain that the respondents are also constrained to act in consonance with the mandate of the statute i.e., tax laws and hence the impact in following the course of law. Hence, the respondents also cannot be entirely faulted for the present state. But it is an admitted fact that the respondents and other arms of the Government seem to be due to the petitioner through the main contractor. The fact that the contractors have executed the Government work and the fact that the petitioner has executed some of those works as a sub-contractor is also an admitted fact.
The instant set of facts are required to be adjudicated equitably and without transgressing the four corners of GST Act.
It is deemed appropriate to modify the garnishee order passed by the respondents by restricting it, in so far as it relates to the amounts in the case of the garnishee namely M/s. Stanch Projects Private Limited. In so far as garnishee order passed by the respondents in respect of the other three garnishees, the same are set aside.
Petition disposed off.
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2023 (12) TMI 1287
Refund claim/Claim of input tax transition of credit - TDS amount remitted by the contractor of the petitioner - whether such amount can only be claimed through a refund application and is ineligible to be transitioned to GST regime credit, and such amount cannot be claimed in TRAN-1 as credit? - HELD THAT:- Section 17(5) which has been placed reliance does not have applicability in respect of the claim of input tax transition of credit in TRAN-1. Section 17(5) is only in respect of non-availability of the input tax credit in certain transactions, it has nothing to do with the claim of input tax credit on eligible transaction.
The TDS which is tax deducted by the contractor on execution of the contract of the petitioner, cannot be said to be input tax credit. Such tax deducted at source is reflected in the electronic cash register and not in the electronic credit ledger. Only the amount which is reflected in the electronic credit ledger is to be treated as input tax credit and not any amount of tax which is reflected in the electronic cash register can be treated as the input tax credit.
The two judgments relied by the learned Counsel for the petitioner of other High Courts, i.e. one by the Madras High Court in the case of DMR Constructions v. Assistant Commissioner, Commercial Tax Department [2021 (4) TMI 261 - MADRAS HIGH COURT] does not take note of the proviso to Section 140, and without taking note of the proviso to Section 140, the judgment has been rendered. Therefore, the said judgment would not be applicable while reading the provisions of the GST Act, including the definition as provided in Sections 2(62) and 2(63), as well as the proviso to Section 140 of the CGST/SGST Act - The next judgment of Jharkhand High Court in M/s Subhash Singh Choudhary and M/s Bhilai Engineering Corporation Ltd v. The State of Jharkhand, Joint Commissioner of State Tax (Administration) [2023 (1) TMI 1023 - JHARKHAND HIGH COURT] Jharkhand High Court also does not take into account the definition of ‘input tax’ and ‘input tax credit’.
Section 140 of the CGST/SGST Act is in respect of the transitional credit of input tax and not every tax paid under the VAT regime. Therefore, there are no much substance in the present writ petition, which is hereby dismissed. However, the petitioner may apply for a refund of TDS in accordance with the law if he is so advised, and such claim shall be processed in accordance with the law - petition dismissed.
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2023 (12) TMI 1284
Demand of IGST wrongly claimed as refund - proceedings initiated against the petitioner resulting in the order impugned is based on a wrong premise - HELD THAT:- It is not in dispute that pursuant to show cause notice issued to the petitioner, the petitioner only on account of pendency of DBCWP No.4465/2021, choose not to respond to the said show cause notice and put forth his response to the said show cause notice and insisted on the adjudication being deferred only on account of pendency of said petition. Apparently, even when the stay petition was rejected on 07.08.2023, despite such rejection also, no response was filed, however, the authority has passed a detailed speaking order dealing with all possible pleas raised by the petitioner.
The submission made pertaining to the entitlement of the petitioner under Section 54 of the Act, which even otherwise is not a jurisdictional aspect, already stands examined and negated by the authority vide impugned order dated 30.10.2023 and the petitioner has to question the validity of said determination in accordance with law including filing of appeal under Section 107 of the Act.
Thus, no case has been made out in the writ petition so as to invoke our extra ordinary jurisdiction under Article 226 of the Constitution of India on the settled parameters, based on which, the same can be invoked by this Court despite availability of remedy of appeal.
Petition dismissed.
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2023 (12) TMI 1283
Cancellation of petitioner's registration before issuance of the notices - petitioner was not granted any time in the notice so issued in GST ASMT-10 - violation of principles of natural justice - HELD THAT:- Since the petitioner's registration had been cancelled before issuance of the said notices, the petitioner did not file reply to the said show cause notices. Otherwise, the petitioner was not granted any time in the notice so issued in GST ASMT-10 and therefore, there has been violation of the principles of natural justice in passing the assessment order, Ext.P5 - there are substance in the submission advanced by the learned counsel for the petitioner. Notice in Ext.P2 disclosed that it is dated 29.9.2023 and on the very next day, Ext.P3 notice under Section 73 was issued. The petitioner was not afforded any time for filing reply to the notice in GST ASMT-10.
There is violation of the principles of natural justice and, therefore, the impugned assessment order, Ext.P5, is unsustainable and the same is hereby set aside. The matter is remanded back to the file of the assessing authority, 1st respondent, to pass fresh a order.
Petition allowed by way of remand.
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2023 (12) TMI 1282
Extension of time period for issuance of the show-cause-notice - applicability of provisions of Section 168A of CGST Act - HELD THAT:- Issue Notice returnable on 8th February, 2024. By way of ad-interim relief, no final order shall be passed by the respondent authority pursuant to the show-cause-notice issued during the period extended by the impugned notification without permission of the Court till the next date of hearing. Direct service is permitted.
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2023 (12) TMI 1281
Determination of quantum of pre-deposit for filing of appeal - deposit of 10% of the disputed tax amount means only tax amount and entire composite amount comprising tax, fine, penalty and fee? - failure to comply the mandate of pre- deposit - HELD THAT:- By isolating "a sum equal to ten per cent of the remaining amount of tax in dispute" in sub-clause (b), the legislator conveys a focused pre-deposit requirement specifically related to the disputed tax amount. This implies that the legislative design prioritizes the financial commitment associated directly with the primary tax liability being contested. This approach aligns with the legal principle that penalties, fines, fees, and interest are subsequent to the determination of tax.
The apex court in the case of PRAKASH NATH KHANNA AND ANOTHER VERSUS COMMISSIONER OF INCOME-TAX AND ANOTHER [2004 (2) TMI 3 - SUPREME COURT], has explained that the language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency. Where the legislative intent is clear from the language, the Court should give effect to it.
The appellate authority therefore, was not justified in calling upon the petitioner to deposit 10% of not only tax liability, but, also fine which is imposed by the Enforcement Officer equivalent to the value of the goods. If the order passed by the appellate authority under challenge is accepted, then the condition under clause (b) giving an option to the aggrieved person who disputes the entire tax liability to deposit 10% of the remaining amount of tax in dispute would be defeated.
There is no need for the petitioner to deposit any percentage of disputed interest, fine, fee and penalty arising from the impugned order. In essence, the legislative intent as construed from Section 107(6)(b) of the CGST Act is that aggrieved party has to pre-deposit 10% of the tax liability and it does not extend to penalties, fees or interest when the petitioner has contested the entirety of the tax liability.
Petition allowed.
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2023 (12) TMI 1280
Demand of GST u/s 73 of CGST Act, 2017 - input mismatch between GSTR 3B return and GSTR 2A statement - Assessee could not represent his case due to non-receipt of communication - HELD THAT:- The main grievance of the petitioner is that the person/consultant, viz., Mr. Paneerselvam and Mr.Sivakumar, who were engaged by the petitioner for filing the returns passed away on 30.04.2019 and 05.02.2022 respectively and hence the petitioner was not in a position to know about the impugned proceedings initiated against them and the consequential orders and hence, the petitioner was not able to file appropriate application and appear before the authorities concerned and put forth their case by way of reply.
However, since the learned counsel for the petitioner submitted that the petitioner would be satisfied, if this Court grants liberty to the petitioner to agitate their case before the Appellate Authority by way of Appeal, this Writ Petition is disposed of granting liberty to the petitioner to approach the Appellate Authority by way of filing an appeal within a period of thirty days from the date of receipt of a copy of this order, in which case, the authorities concerned shall entertain the same without insisting upon limitation aspect, if any and dispose of the same, in accordance with law, after affording an opportunity to the petitioner.
Petition disposed off.
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2023 (12) TMI 1279
Cancellation of petitioner’s GST registration - failure to furnish the return for the continuous period of six months - HELD THAT:- In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017 (CGST Act), a proper officer has a discretion to cancel a GST registration of a tax payer from such date (including retrospectively), as he considers fit. However, the discretion to cancel the GST registration from retrospective effect cannot be exercised arbitrarily or whimsically. Such decision to cancel the GST registration with retrospective effect must be informed by reason.
In the present case, the impugned order does not indicate any reason for cancelling the petitioner’s GST registration, let alone a reason for doing so retrospectively. Thus, the impugned order is liable to be set aside - In the present case, the petitioner’s GST registration has been cancelled for failure to furnish return for the continuous period of six months. Clearly, this does not warrant cancellation of GST registration for the period during which the returns were filed.
Petition disposed off.
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2023 (12) TMI 1278
Refund of the input tax credit including cess - petitioner’s application was rejected on mere apprehension that its supplier had issued fake invoices - HELD THAT:- This Court had also noted that there are no findings on the basis of the cogent material that the invoices issued by one of the petitioner’s suppliers (M/s Shruti Exports) were fake. It was also noticed that there was no allegation that the petitioner had not exported the supplies in respect of which refund of ITC on inputs was claimed. Accordingly, the petition was allowed and the respondents were directed to process the petitioner’s claim for refund.
An application for refund by a tax payer is required to be examined in entirety. If there are any grounds for requiring further clarification or proof, the concerned officer is at liberty to issue a show cause notice setting out all the grounds on which the application is proposed to be rejected. This affords a tax payer an opportunity to meet the allegations and provide such material to satisfy the concerned officer. Once that exercise is done, the concerned officer has to pass a final order either accepting the tax payer’s claim for refund or rejecting it. The reasons for such rejection are required to be clearly stated in the order - A tax payer has an opportunity to appeal against the said order before the Appellate Authority. It is important to note that the Appellate Authority is required to consider the appeal and pass an appropriate order, however, it cannot remand the matter to the concerned adjudicating authority for considering it afresh.
In the present case, after this Court had passed an order, the adjudicating authority once again issued a show cause notice dated 07.07.2023. This is impermissible. The respondents were required to pass an order for sanctioning the refund in accordance with the law and not to re-adjudicate the application once again.
Application disposed off.
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2023 (12) TMI 1277
Anti-Profiteering proceedings - Maintainability of petition against a mere show-cause notice or charge-sheet - Legality of notice initiated under Rule 129 of the Central Goods and Services Tax Rules, 2017 - HELD THAT:- The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established.
A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
Thus, no strong case has been made out by the petitioner calling for interdiction of the notice and summons under challenge - petition disposed off.
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2023 (12) TMI 1276
Betting and gambling - whether the petitioner's platform which is used for gaming would fall within an actionable claim amounting to betting and gambling? - validity of Rule 31A of the CGST Rules, 2017 and Section 15(5) of the CGST Act, 2017 - HELD THAT:- In a similar case, the High Court of Gujarat at Ahmedabad in NXGN Sports Interactive Private Limited Versus Union of India [2023 (11) TMI 357 - GUJARAT HIGH COURT] has entertained the petitions by granting the interim order. Since the subject matter involved is identical, the petitioner too would be entitled to similar order.
Hence, the respondents are directed not to take any coercive action against the petitioner pursuant to the show cause notices. However, the petitioner shall respond to the show cause notices and the proceedings may go on which shall be subject to further orders of this Court.
Issue rule nisi.
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2023 (12) TMI 1275
Seeking release of the confiscated goods and conveyance - transaction was being carried out in contravention of the provisions of Punjab GST Act, 2017 and with intention to evade tax.
Counsel for the petitioners submits that the petitioners have financial handicap as such and are not in a position to deposit the amount twice over at one point of time. Accordingly, he prays that directions be issued firstly to refund the amount so that thereafter it can be deposited by the correct person for release of the goods and the vehicle.
HELD THAT:- Keeping in view the admitted fact as such and the response filed by the State, the present writ petition is disposed off by issuing directions to the Superintendent, Muktsar Ward I, Central GST/Jurisdictional Officer where the penalty and fine had been wrongly deposited by petitioner No. 1 to refund the said amount within a period of 10 days from the date of receipt of certified copy of the order. Thereafter, if the said amount is deposited by petitioner No. 2, the said goods and the vehicle be released within a period of one week thereafter.
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2023 (12) TMI 1274
Constitutional validity of Rule 96(10)(b) of Central Goods and Service Tax Rules, 2017, / State Goods and Service Tax Rules 2017 - HELD THAT:- The order in UNJHA AGRO COMPANY THROUGH PARTNER JANAK PATEL VERSUS UNION OF INDIA [2023 (4) TMI 1268 - GUJARAT HIGH COURT] is perused, wherein, this Court has observed It is an admitted position that other petitions relying the vires of Rule 96(10)(b), have been entertained by this Court and the same are pending consideration. In those petitions, interim relief is granted to those petitioners concerned which is evident from the orders annexed in the compilation of Civil Application.
Issue NOTICE, making the same returnable on 21ST JUNE, 2023.
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2023 (12) TMI 1273
Classification of service - business of the civil constructions mainly with the Govt. Departments against the Contracts awarded by them - Whether the company will charge the GST @ 12% or @18% in the case of the contracts executed before the N/N. 03/2022-Central Tax (Rate) dated. 13.03.2022 w.e.f 18.07.2022?
HELD THAT:- The Applicant has been awarded the contract of "Redevelopment of Carriageway, foothpath, vending zone covering ROW within ABD area of Aligarh Smart City(CW-23) on EPC mode (Pakage-1) at Aligarh" by the Aligarh Smart City Limited (ASCL) vide contract agreement dated 23.12. 2021 - The Works contract services provided by the applicant was chargeable to GST @ 12% vide Notification 11/2017 - CT (Rate) as amended dated 28.06.2017. However subsequently vide Notification No 03/2022 dated 13.07.2022, the same was amended and enhanced to 18% w.e.f 18.07.2022.
Consequent to the change in rate of tax during an ongoing continuous service, applicable rate of tax is to be decided in terms of provisions contained in Section 14 of the CGST Act, 2017.
In cases where advance is received or invoices are raised before 18.07.2022, GST rate applicable is 12% - In cases where advance is received and invoices are raised after 18.07.2022. GST rate applicable is 18%.
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2023 (12) TMI 1272
Classification of goods - F-18 Products - classified under HSN 30063000, leviable to GST at the rate of 12%, in terms of entry no 65 of Schedule II of the Notification No 01/2017, Central Tax (Rate) issued under Central Goods and services Tax Act, 2017 or not - HELD THAT:- It can be seen that F-18 products are essentially radioactive isotopes which are used in radiopharmaceutical imaging such as PET scanning. Although they are used as a pharmaceutical product for the diagnosis and detection of various diseases, 18F FDG and other 18F radiopharmaceutical products are compounds of the radioisotope 18F. Heading 2844 of the Tariff covers radioactive isotopes and their compounds. 18F-FDG being a compound of the radioisotope 18F, it would fall under the heading 2844 - Diagnostic reagents are chemicals used in laboratories to determine specific types of pathogens, metabolic abnormalities, physiological anomalies, and genetic diseases. They're relied upon by medical practitioners to make accurate diagnoses, and can be used in vivo or in vitro in order to detect certain diseases.
The Section Note 1(A) specially stipulates that Goods answering to a description in heading 2844 are to be classified in the said heading only. F18 is a radioisotope and Fluorodeoxyglucose (18F-FDG) is a compound. The products being radioactive and compound of the radioisotope 18F, the same merits classification under heading 2844 only although it satisfies the condition mentioned in Chapter 30 i.e diagnostic reagent designed to be administered to the patient. The applicant has also submitted that medicaments are covered under Tariff heading 30 and that the same product has been classified under heading 3006 by some supplies. However, it may be appreciated that the classification of goods are to be guided by the provisions of law and Radioactive chemicals elements and radioactive isotopes are classifiable under ChSh 2844 only and nowhere else.
The HSN classification and rate of tax applicable on the product under consideration is 2844 @ 18%.
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2023 (12) TMI 1271
Scope of Advance Ruling - Supply or not - work done by the applicant in Transmission Line under the supervision of MVVNL - levy of GST on MVVNL on the full amount of work done for load sanction of 11 KV lines by applicant - applicant pays GST on the entire value of work done to its contractors and also to MVVNL - payment of same amount of GST on the same transaction to two separate entities - double taxation - HELD THAT:- Applicant M/s Spring Infrastructures is receiver of the Goods/Services provided by the M/s Madhyanchal Vidyut Vitran Nigam Limited. Therefore, it falls under category of Service recipient. In light of point provided under Section 95 of CGST Act 2017, only supplier of the services can file Application for Advance Ruling. Accordingly, the application for consideration/ruling not admitted on merits as applicant does not fall under the definition of supplier under Advance Ruling and cannot get the Advance Ruling under the Act.
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2023 (12) TMI 1270
Classification of goods - rate of tax - HSN Code - sale of solar driven submersible pump (water pump) - Supply involves different components - Whether the same shall constitute as single supply or together as composite supply or treated as mixed supplies? - HELD THAT:- The applicant has failed to provide technical specification of the supply. It is found that each component is capable of functioning independent of each other. Hence, we find that the supply cannot be treated as single supply. Further, it is observed, there are clear provisions in the GST Act itself as regards "composite supply" as defined under Section 2(30) and "mixed supply" under Section 2(74) of CGST Act, 2017 which deal with situations where supply consisting of two or more taxable goods or services or both is involved.
In present case, it is not found either water pump is supplied with solar panel and controller in ordinary course of business and vice versa. Nor is found any principle supply. Each component can supplied separately. Hence, the supply in question cannot be termed as composite supply - So far as the concept of "mixed supply" is concerned, the same is defined under Section 2(74) of the CGST Act to mean 'two or more individual supplies of goods or services, or any combination thereof made in conjunction with each other by a taxable person for a single price where such supply does not constitute a composite supply'.
The supply of each one of the items in question as proposed by the appellant is independent and each one of the items can be supplied separately in the appellant's own case - It is observed that from the definitions it emerges that a supply, consisting of any possible combination of more than one type of goods which are independent of each other in terms of their supply but which are sold together as a bundle simply because the buyer has ordered purchase of such combination of goods, does not constitute a composite supply as the absence of the element of principal supply and natural bundling in the ordinary course of business weighs against the definition of composite supply - the supply of different items namely Solar Panel, Controller and Solar Pump, without anyone of the goods being supplied as principal supply would be covered by the definition of "mixed supply" of different type of goods.
The Solar driven submersible water pump comprising of Solar panel, Controller and submersible pump is a mixed supply and the highest rate of GST will be applicable amongst goods supplied by the applicant.
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2023 (12) TMI 1269
Scope of Advance Ruling - Liability of service tax - Reverse Charge Mechanism - upfront amount charged by the NOIDA Authority (as lease premium) in respect of allotment of plots to the Applicant by way of granting of long term lease of ninety years, for development of commercial infrastructure in an industrial township - scope of supply - long-term lease is in the nature of sale of land - scope of supply under the provisions of CGST Act.
HELD THAT:- The activities of the taxpayer being a recipient, are not related to the supply being undertaken or proposed to be undertaken by him.
The Applicant M/s Lavish Buildmart Pvt. Ltd. is receiver of the Goods/Services provided by the M/s New Okhla Industrial Development Authority and has admitted in the application dated 28.03.2023 that it falls under category of Service recipient. In light of point provided under Section 95 of CGST Act 2017, only supplier of the services can file Application for Advance Ruling. Accordingly, the application for consideration/ruling not admitted on merits as applicant does not fall under the definition of supplier under Advance Ruling and cannot get the Advance Ruling under the Act.
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