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GST - Case Laws
Showing 201 to 220 of 2178 Records
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2023 (12) TMI 156
Principles of natural justice - Validity of an order which was not signed - Avoidable mistake - Scope of Section 160 of GST - HELD THAT:- Section 160 of CGST Act 2017 is not attracted. An unsigned order cannot be covered under “any mistake, defect or omission therein” as used in Section 160. The said expression refers to any mistake, defect or omission in an order with respect to assessment, re-assessment; adjudication etc and which shall not be invalid or deemed to be invalid by such reason, if in substance and effect the assessment, re-assessment etc is in conformity with the requirements of the Act or any existing law. These would not cover omission to sign the order. Unsigned order is no order in the eyes of law. Merely uploading of the unsigned order, may be by the Authority competent to pass the order, would, not cure the defect which goes to the very root of the matter i.e. validity of the order.
Section 169 of CGST Act 2017 is also not attracted. Here, the question is of not signing the order and not of its service or mode of service.
This writ petition is allowed in part, on the ground that the order does not contain the signatures. The impugned order is set aside with direction to the Competent Authority to pass fresh order in accordance with law.
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2023 (12) TMI 155
Exemption form GST - services rendered by the 2nd respondent in respect of wheat imported by the petitioner - Scope of Notification No.12 of 2017 Central Tax (Rate) dated 28.06.2017 in particular S.No.54(e) of the said notification - contract between the petitioner and the 2nd respondent for provision of the services - incidence of tax.
HELD THAT:- The petitioner's entitlement to exemption must be determined by testing whether the services of loading, unloading, packing, storage or warehousing is rendered to agricultural produce or other than “agricultural produce” and not on the basis of the process the agricultural produce is meant to be subject to in the hands of the petitioner/ importer. In other words if on applying the definition of "agricultural produce" to the wheat that is imported and if it qualifies as an "agricultural produce", the mere fact that the buyer of “agricultural produce” intended to subject it to various other processes subsequently resulting in conversion of wheat into maida, atta and sooji would not take the services of loading, unloading, packing, storage and warehousing of the “agricultural produce” out of Serial No. 54(e) of the Exemption Notification.
The reasoning in the impugned order of the 1st Respondent results in importing a condition as to the use to which the agricultural produce would be subject to in the hands of the service recipient. The above test is wholly alien to decide whether a commodity would fall within the definition of “agricultural produce” contained in the above Notification. The impugned Ruling thus suffers from the vice of arbitrariness inasmuch as it has taken into account aspects/ factors which are irrelevant.
This Court also finds that the impugned order is flawed inasmuch as it results in adding conditions to exemption notification which is impermissible.
Yet another reason the impugned order warrants interference is the fact that the expression "marketable" employed in the definition of "agricultural produce" has been misconceived. A reading of the above definition would show that it only indicates that the agricultural produce must be such that it is marketable i.e., capable of being marketed and it is not required of being actually marketed as such. The construction of the Notification in the impugned order of the 1st Respondent results in converting the expression "marketable" employed in the definition of “agricultural produce” into "marketed", which is impermissible - Applying the above reasoning to the term “marketable” used in the definition of “agricultural produce” it would be clear that it only means that the goods in question in the instant case wheat must be capable of being marketed in the primary market and it is not necessary to show that it is actually marketed.
This Court is of the view that the impugned order holding that services of loading, unloading, packing etc., rendered in relation to the wheat imported is not entitled to exemption in terms of S.No.54(e) of Notification No.12 of 2017 on the premise that the imported wheat is not meant for primary market as such but it is intended to be converted into maida, atta, sooji etc., in the hands of the recipient i.e., the petitioner herein is unsustainable.
The impugned order is set aside - Petition allowed.
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2023 (12) TMI 154
Cancellation of GST registration with retrospective effect - no reply given to SCN - Principles of natural justice - HELD THAT:- The taxpayer’s GST registration was cancelled by the impugned order for the reason that no reply had been given to the Show Cause Notice - the impugned order dated 20.09.2022 is also unsustainable as it is not informed by reason.
It is considered apposite to direct that the taxpayer’s GST registration be considered as cancelled w.e.f. 31.03.2020, as was sought by him. Clearly, if a taxpayer has closed down its business, the respondent cannot insist that his GST registration be kept alive and he be held responsible for filing his returns thereafter - petition disposed off.
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2023 (12) TMI 153
Cancellation of petitioner’s GST registration - registration obtained by means of fraud, wilful misstatement or suppression of facts - HELD THAT:- It is apparent that the impugned order is void as it is not informed by reason. The impugned order does not either deal with the replies filed by the petitioner or set out any reason for cancelling the registration. It is also important to note that the petitioner’s GST registration was cancelled with retrospective effect from 14.10.2017.
The impugned SCN is also clearly unsustainable. Although it alleges that the petitioner had obtained the registration by means of fraud, wilful misstatement, or suppression of facts, it is apparent that the said reason has been selected from the pre-determined set of allegations. The impugned SCN does not mention the fraud alleged to have been perpetrated by the petitioner; does not disclose the wilful misstatement allegedly made by the petitioner or the facts which were suppressed.
Thus, in effect, the impugned SCN does not set out the purpose of the show cause notice to enable the noticee to respond to the allegations. The impugned SCN fails to satisfy the said standards - The respondents are directed to restore the petitioner’s GST registration forthwith. It is clarified that this order would not preclude the respondents from initiating any appropriate action, including for cancellation of the GST registration, in accordance with law.
Petition allowed.
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2023 (12) TMI 152
Rejection of application for GST registration - More than one business entities were running from the same premises - demarcation of the properties - Principles of natural justice - HELD THAT:- In the event, the property referred to by the petitioner, where, the Petitioner-Company is going to run its business either demarcated or not, the respondents are directed to issue GST registration number to the petitioner within one week from the date of receipt of a copy of this order. In case, if there is no demarcation of the property, the petitioner-Company is directed to demarcate the property within a period of one (1) week time from the date of issue of GST number - The petitioner shall demarcate the property and file the demarcation report on 27.11.2023.
This Writ Petition stands disposed of - List the case before this Court on 27.11.2023 for Reporting Compliance of this order by both parties.
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2023 (12) TMI 151
Demand of GST u/s 74 - Wrongful / excess claim of transitional credit (Tran-1) - Violation of principles of natural justice - transition of and availment of excess amount of TDS under the VAT regime as transitional credit under the GST regime in terms of Section 140(1) of the Act of 2017 - HELD THAT:- The sub-clause (i) to the proviso of Section 140(1) clearly states that no registered company shall be allowed to take credit in the circumstances where the said amount of credit is not admissible as input tax credit under this Act i.e. GST Act. Sub-clause (ii) thereof also provides that such amount of credit won’t be admissible where the company has not furnished all the returns required under the existing law for the period of six months immediately preceding the appointed date.
Sub-clause (c) of Section 17(5) deals with the case of the petitioner and stipulates that input tax credit shall not be available in respect of the works contract service when supplied for construction of immovable property (other than plant and machinery) except where it is an input service for further supply of works contract service. Petitioner, in the instant case, not only seems to have carried forward the excess TDS amount as transitional credit believing it to be eligible ITC; though excepted under Section 17(5) (c), but also seems to have availed it since upon scrutiny of its returns, such discrepancy was found in the notice issued under GST ASMT-10 under Section 61 of the Act of 2017 followed by the notice under Section 74(1) of the Act of 2017. These provisions of the Act of 2017 permit of no exception.
The appellate authority rightly held that the petitioner company is not entitled to avail the ITC of GST trade on goods and services used for construction as per Section 17(5) (c) and Section 17(5) (d) of the Act of 2017. The appellate authority has also found that though the appellant has claimed state tax as transitional input tax credit, but there is no record of local purchase of taxable commodities during the tax period 2016-17 and 2017-18, nor any reflection of tax credit carried forward in the returns submitted by the appellant for the tax period 2016-17 and 2017-18.
Section 74(1) of the Act of 2017 provides for imposition of tax and penalty equivalent to the tax amount plus interest if the charges leveled under it are found to be true and proved, both the adjudication authority and the appellate authority have found that the petitioner had not only wrongly transitioned ineligible ITC from the VAT regime, but had also availed it; therefore it was a clear willful misstatement on the part of the petitioner, as ignorance of law cannot be pleaded in such matters.
This Court does not find any grounds made out to interfere in the adjudication order dated 18.11.2021 and the order of the appellate authority dated 16.03.2023 - Petition dismissed.
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2023 (12) TMI 150
Exemption from GST - Letting out of residential property for commercial use - Scope of residential dwelling for the purpose of notification No. 05/2022-Central Tax (Rate) dated 13/07/2022 - Establishing the branch/office of the Lessee - factors to be included in the definition of Residential Dwelling - reverse charge (RCM) or forward charge mechanism - HELD THAT:- Point 4 (a) of the Lease Agreement entered between the Applicant (Lessor) and Lessee i.e. M/s Back Office IT Solutions Pvt. Ltd. (a company incorporated in India within the meaning of Companies Act, 1956), stipulates that the demised premises shall be used solely for commercial purpose by the lessee i.e. for establishing the branch/office.
The property in question has been leased/rented for commercial use. So even if the use of said property has not been changed by JDA but since the so called residential dwellings does not remain as such as it being used for commercia l purpose. The said supply of service i.e. renting for commercial use is covered under 997212 and taxable @ 18% and the Applicant i.e. lessor is supposed to pay GST as mentioned above on forward charge basis. The lessee is not required to pay GST under RCM basis in term of Notification No. 05/2022-Central Tax (Rate) dated 18.07.2022.
Thus, No the demised premises will not be covered in the definition of residential dwelling in term of Notification No. 05/2022-Central Tax (Rate) dated 13/07/2022 as it being used for commercial use - The important factors to be included in the definition of Residential Dwelling is the purpose for which the dwelling is put to use and the length of stay intended by the users.
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2023 (12) TMI 149
Profiteering - purchase of Flat - benefit of reduction in the rate of GST not passed on - contravention of provisions of section 171 of CGST Act - HELD THAT:- The Commission finds that if the amount of ITC availed/available to the Respondent in post-GST regime is considered up to 16.07.2017, then it would be very meagre amount of ITC (01.07.2017 to 16.07.2017) and huge amount of ITC available to the Respondent in post GST-regime (17.07.2017 to 31.07.2019) would escape from the computation of profiteered amount which would be incorrect and leaving such ITC would not serve the purpose of Section 171 of the CGST Act, 2017. Hence, in terms of Section 171 of the CGST Act, 2017, the ITC has been rightly taken for the period from 01.07.2017 to 31.07.2019. Thus, the amount of ITC and investigation period considered by the DGAP from 01.07.2017 to 31.0.2019 for the purpose of calculation of profiteering is correct.
The Commission observes that the instant case does not fall under the ambit of Anti-Profiteering provisions of Section 171 of the CGST Act, 2017 as the Respondent has neither been benefited from additional ITC nor there has been a reduction in the tax rate in the post-GST period - the application filed by the Applicant No. 1 requesting action against the Respondent for charging GST @ 18% on PLC is not maintainable and hence the same is dismissed.
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2023 (12) TMI 148
Profiteering - flat bought in the Respondent's project - Respondent had not passed on the benefit of ITC to him by way of commensurate reduction in price - contravention of section 171 of CGST Act - Penalty - HELD THAT:- It is clear from the plain reading of Section 171 (1) that it deals with two situations: - One relating to the passing on the benefit of reduction in the rate of tax and the second pertaining to the passing on the benefit of the ITC. On the issue of reduction in the tax rate, it is apparent from the DGAP's Report that there has been no reduction in the rate of tax in the post GST period. Hence, the only issue to be examined is as to whether there was any net benefit of ITC with the introduction of GST. This Commission finds that, the ITC, as a percentage of the turnover, that was available to the Respondent during the pre-GST period (April-2016 to June-2017) was 4.19%, whereas, during the post-GST period (July-2017 to December, 2019), it was 4.26%. This confirms that in the post-GST period, the Respondent has been benefited from additional ITC to the tune of 0.07% (4.26% - 4.19%) of his turnover and the same is required to be passed on by him to the recipients of supply, including the Complainant. The Respondent had sold 85 units before receipt of Occupancy Certificate out of which 32 units were in affordable category on which he had charged 8% GST (after 1/3 abatement towards land) remaining 53 units were other than affordable category on which GST was charged @12% (after 1/3rd abatement towards land). Out of the 85 units, 33 units were sold Post-GST and prices were negotiated after ITC adjustments. Hence, there were only 52 units in respect of which benefit of ITC was required to be passed on. The Commission also finds that the computation of the amount of ITC benefit to be passed on by the Respondent to the eligible recipients works out to Rs. 6,43,756/- which includes applicable GST (12% or 8%) on the base amount of Rs. 5,79,349/- with respect to 52 homebuyers on the basis of the information supplied by the Respondent. The Respondent has not disputed the methodology adopted by the DGAP or the amount of profiteering worked out by the DGAP.
The profiteered amount for the period from 01.07.2017 to 03.12.2019, in the instant case, is determined as Rs. 35,114/- under Section 171 of the CGST Act, 2017.
Penalty - HELD THAT:- Respondent has denied the benefit of Input Tax Credit (ITC) to the customers/shop buyers in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and he has thus committed an offence 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 violation has occurred is w.e.f. 01.07.2017 to 03.12.2019, hence the penalty prescribed under the above Section cannot be imposed on the Respondent 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 147
Profiteering - supply of Services by way of admission to exhibition of cinematography films - Respondent did not pass on the benefit of reduction in the GST rate - contravention of section 171 of CGST Act - penalty - HELD THAT:- The Respondent has resorted to profiteering by way of either increasing the base prices of the services while maintaining the same selling prices or by way of not reducing the selling prices of the service commensurately, despite a reduction in GST rate on "Services by way of admission to exhibition of cinematography films where price of admission ticket was one hundred rupees or less" from 18% to 12% w.e.f. 01.01.2019 to 31.07.2019. On this account, the Respondent has realized an additional amount to the tune of Rs. 14,62,604/- from the recipients which included both the profiteered amount and GST on the said profiteered amount. Thus, the profiteering amount is determined as Rs. 14,62,604/- as per the provisions of Rule 133 (1) of the CGST Rules, 2017. The Respondent is therefore directed to reduce the prices of his tickets as per the provisions of Rule 133 (3) (a) of the CGST Rules, 2017, keeping in view the reduction in the rate of tax so that the benefit is passed on to the recipients. The Respondent is also directed to deposit the profiteered amount of Rs. 14,62,604/- along with the interest to be calculated @ 18% from the date when the above amount was collected by him from the recipients till the above amount is deposited. Since the recipients, in this case, are not identifiable, the Respondent is directed to deposit the amount of profiteering of Rs. 7,31,302/- in the Central Consumer Welfare Fund (CWF) and Rs. 7,31,302/- in the Telangana State CWF respectively, as per the provisions of Rule 133 (3) (c) of the CGST Rules, 2017, along with 18% interest. The above amount shall be deposited within a period of 3 months from the date of this Order failing which the same shall be recovered by the Commissioner CGST/SGST as per the provisions of the CGST Act, 2017.
Penalty - HELD THAT:- It is also evident from the above narration of facts that the Respondent has denied benefit of rate reduction to his customers/recipients in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has committed an offence under Section 171 (3A) of the above Act. However, perusal of the provisions of Section 171 (3A), under which liability for penalty arises for the above violation, shows that it has been inserted in the CGST Act, 2017 w.e.f. 01.01.2020 vide Section 112 of the Finance Act, 2019 and it was not in operation during the period from 01.07.2017 to 31.07.2019 when the Respondent had committed the above violation and hence, the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively for the said period.
Application disposed off.
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2023 (12) TMI 146
Profiteering - supply of Services by way of admission to exhibition of cinematography films - Respondent did not pass on the benefit of reduction in the GST rate - increase in the base price to maintain the same cum-tax selling price - violation of section 171 of CGST Act - Penalty - HELD THAT:- The Respondent has resorted to profiteering by way of either increasing the base prices of the service while maintaining the same selling prices or by way of not reducing the selling prices of the service commensurately, despite a reduction in GST rate on “Services by way of admission to exhibition of cinematography films where price of admission ticket was one hundred rupees or less” were reduced from 18% to 12% w.e.f. 01.01.2019 to 30.09.2019. On this account, the Respondent has realized an additional amount to the tune of Rs. 7,19,1871- from the recipients which included both the profiteered amount and GST on the said profiteered amount. Thus the profiteering amount is determined as Rs. 7,19,187/- as per the provisions of Rule 133 (1) of the CGST Rules, 2017. The Respondent is therefore directed to reduce the prices of his tickets as per the provisions of Rule 133 (3) (a) of the CGST Rules, 2017, keeping in view the reduction in the rate of tax so that the benefit is passed on to the recipients. The Respondent is also directed to deposit the profiteered amount of Rs. 7,19,1871- along with the interest to be calculated @ 18% from the date when the above amount was collected by him from the recipients till the above amount is deposited. Since the recipients, in this case, are not identifiable, the Respondent is directed to deposit the amount of profiteering of Rs. 3,59,594/- in the Central Consumer Welfare Fund (CWF) and Rs. 3,59,594/- in the Telangana State CWF respectively, as per the provisions of Rule 133 (3) (c) of the CGST Rules, 2017, along with 18% interest. The above amount shall be deposited within a period of 3 months from the date of this Order failing which the same shall be recovered by the Commissioner CGST/SGST as per the provisions of the CGST Act, 2017.
Penalty - HELD THAT:- It is evident from the narration of facts that the Respondent has denied benefit of rate reduction to his customers/recipients in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has committed an offence under Section 171 (3A) of the above Act. However, perusal of the provisions of Section 171 (3A), under which liability for penalty arises for the above violation, shows that it has been inserted in the CGST Act, 2017 w.e.f. 01.01.2020 vide Section 112 of the Finance Act, 2019 and it was not in operation during the period from 01.07.2017 to 30.09.2019 when the Respondent had committed the above violation and hence, the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively for the said period.
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2023 (12) TMI 145
Profiteering - Erection and Commissioning service supplied by M/s Eros Elevators & Escalators Pvt. Ltd. - the benefit of reduction in tax rate in post-GST era not passed on - benefit of additional ITC on the materials purchased by the Respondent not passed on by way of commensurate reduction in price - contravention of section 171 of CGST Act - HELD THAT:- The Applicant No. 1 has claimed that the Respondent's scope of activities was Design, Manufacturer, Supply & Installation of Elevators & Escalators as per his ISO 9001: 2015 Certificate No.: UQ-2019110909. Perusal of the above Certificate shows that the Respondent has been issued a Certificate of Registration by a United Kingdom based agency in which he has been shown as manufacture of the lifts. However, during the course of the investigation it has been found by the DGAP that the Respondent had not manufactured the lifts which he has supplied to the Applicant No. 1. He had procured the material from the other manufacturers locally and had supplied the same and installed the lifts. Hence the above claim of the Applicant is not correct.
The above Applicant has also claimed that the Respondent had increased the base price in the post GST period and had profiteered an amount of Rs. 2,93,502/-. However, perusal of the initial agreement dated 04.07.2015 executed in the pre GST period and the Quotation Nos. QT41092_R4 dated 04.07.2015, QT52365 R1 dated 3.05.2015 and QT52268 R2 dated 30.05.2015, shows that the base price for the installation of both the lifts was Rs. 23,06,499/- and the total tax applicable was Rs. 2,93,502/- and hence the total price was Rs. 26,00,000/-. Therefore, the total pre-GST tax was 12.72% - there is no question of the Respondent having profiteered and hence both the above allegations of the Applicant No. 1 are incorrect and untenable.
Perusal of Rule 128 (1) shows that the Standing Committee on Anti-profiteering is only required to examine the accuracy and adequacy of the evidence submitted by the Complainant and if it is prima facie satisfied that the benefit of ITC or tax reduction has not been passed then it has to forward the complaint to the DGAP for detailed investigation as per Rule 129 (1) of the above Rules. Since the evidence produced by the Applicant No. 1 was found to be adequate and accurate by the Standing Committee it had correctly recommended investigation in the complaint. The Respondent has been given due opportunity to present his case by the DGAP during the investigation and has also been allowed to defend himself as per the provisions of the principles of natural justice by the Authority, on the basis of which no allegation has been established against him. Therefore, he should have no grievance on this account.
The Commission finds that the instant case does not fall under the ambit of Anti-Profiteering provisions of Section 171 of the CGST Act, 2017. Accordingly, the proceedings initiated against the Respondent under Rule 133 of the CGST Rules, 2017, are hereby dropped.
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2023 (12) TMI 106
Cancellation of GST registration granted to the petitioner - appeal preferred by the petitioner was dismissed on the ground of delay - HELD THAT:- The issue raised in the present case is squarely covered by a judgment of this Court in the case of M/S CHANDRA SAIN, SHARDA NAGAR, LUCKNOW THRU. ITS PROPRIETOR MR. CHANDRA SAIN VERSUS U.O.I. THRU. SECY. MINISTRY OF FINANCE, NEW DELHI AND 5 OTHERS [2022 (9) TMI 1047 - ALLAHABAD HIGH COURT] where it was held that In the present case from the perusal of the order dated 13.02.2020, it is found that clearly there is no reason ascribed to take such a harsh action of cancellation of registration.
In view of the reasoning as recorded in the case of M/s Chandra Sain and the facts being similar, the order cancelling the registration dated 14.09.2022 cannot be sustained and is quashed with liberty to the respondents to pass a fresh order after issuing a show-cause notice in accordance with law and after considering the defense, if any.
Petition allowed.
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2023 (12) TMI 105
Scope of Advance Ruling application - Input Tax Credit - solar power panels procured and installed - blocked credit under Section 17(5) (c) and (d) of CGST/ TNGST Act, 2017.
The main ground of appeal is that the AAR had exceeded its jurisdiction in delivering a ruling on apportionment of credit in terms of Section 17(2) of the CGST Act, 2017, rather than delivering a ruling on the question of blocked credit.
HELD THAT:- As the Appellants are not supplying works contract service for construction of an immovable property and since such their activity does not fall within the ambit of the Section 17(5)(c) or (d) of CGST Act, 2017, the question whether ITC is blocked or otherwise, in terms of the said provisions, does not arise at all and the issue raised before the AAR was totally irrelevant. Moreover, the issue raised is extraneous to provide a ruling, as it is not within the scope of Section 97(2)(d) of the Act i.e. admissibility of input tax credit.
Moreover, the provisions of the Section 17(2) of the Act, read with the Rule 43(1) (a) of the CGST/TNGST Rules, 2017 (hereinafter referred to Rules) disentitles the ITC in this case on the Solar Power Panels used for installation of the Solar Power Plant which were used by the Appellant for supply of Electric Energy which is exempted from the whole of the GST payable under the Notification No: 2/20217 CT(R) dated: 28.06.2017 (Sl.No: 104).
When Electricity energy manufactured using the Solar Panels were supplied to TANGEDCO which involves no payment of GST, the supply chain get snapped at the point and the inputs or capital goods used for such supply would not be eligible for any input tax credit. The further purchase of electricity from TANGEDCO at a different location is altogether a different supply and the fact that the billing is done by TANGEDCO in a consolidated matter does not alter the position. - the tax paid on the inputs i.e. Solar Panels are not eligible for input tax credit as the same are used exclusively for supply of exempted goods in view of the provisions of Section 17(2) of the CGST Act, 2017 read with Rule 43(1)(a) of the CGST Rules, 2017.
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2023 (12) TMI 73
Violation of principles of natural justice - non speaking SCN - insufficient for the petitioner/assessee to prepare an effective reply and defend himself - HELD THAT:- It is obvious that the impugned show-cause notice contains enough material to enable petitioner/assessee to submit an effective reply so as to prevent the said show-cause notice from being sacrificed at the alter of principles of natural justice. The details in the show-cause notice satisfy the per-requisites prescribed in Form GST DRC -01 which is statutory in nature. Thus, the contents of the show-cause notice cannot be termed as deficient or inadequate preventing the petitioner/assessee to prepare and file an effective reply and defend himself before the Proper Officer.
If petitioner is of the view that certain additional document/material is required for filing an effective reply to the same, then petitioner could have very well demanded the same from the Proper Officer by disclosing the relevancy of such evidence/material to the issue involved - However, what is noticeable in this case is that no such representation was made by the petitioner pursuant to the show-cause notice and, therefore, it is presumed that petitioner has no grievance against the show-cause notice.
This Court sees no reason to interfere in this matter especially in view of the non-availed statutory remedy of appeal u/S 107 of the M.P. GST Act, 2017 - petition dismissed.
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2023 (12) TMI 72
Maintainability of petition - availability of alternative remedy - waiver of demand alongwith interest and penalty u/s 74 of the CGST Act, 2017 - penalty u/s 122(1)(vii) of the CGST Act, 2017 confirmed - HELD THAT:- Learned counsel for the parties are ad-idem that a statutory remedy of an appeal is available to the petitioner to assail the aforesaid order passed by the adjudicating officer, as provided under Section 107 of the CGST Act - petitioner would submit that the effect of the order-in-original is that the amounts would be now required to be refunded to the petitioner being the amount of input tax credit paid by the petitioner - Respondent would not dispute such consequences which would fall from the order passed by the adjudicating officer. It is stated by the petitioner that they intend to challenge the penalty of Rs. 20,63,46,994/- imposed by the said order passed by the adjudicating officer.
Considering the subsequent developments, further adjudication of the present proceedings is not called for. The petition can be disposed of by permitting the petitioner to avail the alternate remedy of an appeal to assail the order-in-original dated 17 November, 2023.
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2023 (12) TMI 71
Violation of principles of natural justice - no hearing granted to the petitioner - bad and illegal impugned order - demand of tax alongwith interest and penalty - HELD THAT:- Firstly, it is seen that the petitioner had sufficiently indicated that the petitioner intended that a personal hearing be granted to the petitioner. If that be so, merely because the petitioner did not appear on 7 July, 2023, in the absence of a valid reason, it should not have been presumed by the State Tax Officer that the petitioner is not interested for hearing - it is also found that no written notice in that regard was issued adjourning the proceedings - also the impugned order does not consider the case of the petitioner even in the reply to the show cause notice as submitted.
The interest of justice would require that the petitioner be granted an opportunity of being heard after which an appropriate order be passed by the State Tax Officer in accordance with law - proceedings are remanded to the State Tax Officer to be decided in accordance with law after granting an opportunity of a personal hearing to the petitioner - petition allowed by way of remand.
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2023 (12) TMI 70
Validity of SCN - SCN seeks to fasten a liability for the period when the petitioner was not active - HELD THAT:- In view of the statement made by Mr. Singla (on instruction of Mr. Neeraj Aggarwal, SIO, DGGI, DZU, who is present in Court) that multiple notices have been issued and the highest demand is covered under notice issued to Belz Tech Private Limited, which is registered in Thane, paragraph 7.1 of the Circular dated 09.02.2018 amended by the Circular dated 12.03.2022, as set out above, would clearly be applicable.
The petitioner’s contention that the Additional / Joint Commissioner of Central Tax, Thane would have no jurisdiction to adjudicate the impugned SCN is, thus, unmerited.
Insofar as other contentions are concerned, it is not considered apposite to examine the same in this petition since the matter is at the show cause notice stage, and the petitioner is not precluded from raising such contentions in response to the impugned SCN.
Petition disposed off.
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2023 (12) TMI 69
Demand of interest payable under Section 50 (1) of the CGST/SGST Act, 2017 - GST returns could not be filied due to cancellation of GSTIN of the petitioner - HELD THAT:- The petitioner cannot be held responsible for cancellation of the GSTIN on 24.08.2017. The petitioner immediately approached to the GST authorities on 24.08.2017 itself by way of an e-mail bringing into the notice of the authorities about the cancellation of the GSTIN and on such request no action was taken till the petitioner filed petition before this Court, and only in pursuance of the interim order passed by this Court on 21.12.2017 the GSTIN of the petitioner got restored.
The petitioner had thereafter, filed return for the months of July, 2017 to December, 2017 and paid tax. Thus, the demand for interest for delay in filing the returns and payment of tax due for the period from July, 2017 to December, 2017, this Court is of the view that the it is highly inequitable to impose interest under Section 50 of the Income Tax Act, 2017 on the petitioner, and petitioner can not be said to have made any default in not remitting the tax inasmuch as he could not have remitted the tax without there being a valid GSTIN. However, if the petitioner had failed to remit the tax after 26.12.2017, within twenty days thereafter, the petitioner would be liable to pay the interest under Section 50 of the CGST/SGST Act, 2017.
The impugned order is set aside and the authorities are given liberty to impose fine for delayed payment of GST after 20th day from 26.12.2017 for the period up to December, 2017. for subsequent months, if there is any delay, the petitioner is liable to pay the interest - Petition disposed off.
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2023 (12) TMI 68
Refund of unutilised Input Tax Credit (ITC) - Petitioner’s application for refund was allowed in part - rejection of refund on the ground that the services rendered by the petitioner was as an intermediary and did not qualify for export of services - Initiation of contempt proceedings for wilful disobedience - HELD THAT:- The petitioner was constrained to file a writ petition - The respondents again raised an issue in relation to furnishing of FIRCs. It was further stated that the decision of the Appellate Authority is erroneous and the Revenue proposes to file an appeal against the said decision. The said petition was allowed by an order of this Court dated 08.05.2023 and this Court directed the respondent to forthwith disburse the petitioner’s claim for refund along with interest, in accordance with law. This Court also held that the deficiency memos issued shall be treated as non est and the Revenue cannot ignore the orders passed by the Appellate Authority on the ground that it proposes to file an appeal.
To enable the respondent to give effect to the said order, the petitioner once again filed an application for refund. It appears that the Adjudicating Authority once again commenced the exercise for adjudicating the petitioner’s claim and has partly rejected the same.
The concerned Adjudicating Authority (Deputy Commissioner, CGST, Uttam Nagar Division) has wilfully failed to implement the order dated 08.05.2023 passed by this Court, which in unambiguous terms directed the concerned authority to disburse the petitioner’s claim along with interest, as applicable - Issue notice to show cause as to why contempt proceedings not be initiated against the respondent for wilful disobedience of the order [dated 08.05.2023 in W.P.(C) No. 5722/2023] passed by this Court.
List on 18.12.2023.
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