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GST - Case Laws
Showing 221 to 240 of 2178 Records
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2023 (12) TMI 67
Maintainability of appeal - time limitation - appeal dismissed on the ground of delay.
The maintainability of the appeal is regulated by paragraph no. 3 of N/N. 53 of 2023- Central Tax, dated 02.11.2023 (S.O. 4767(E)) which require that the admitted tax, interest, fine, fee and penalty arising from the impugned order is paid up along with a sum equal to 12.5% of the remaining amount of tax in dispute arising from the said order subject to a maximum of twenty-five crore rupees; out of which 12.5%, 20% should have been paid by debiting from the Electronic Cash Ledger.
HELD THAT:- In the present case, the appeal was filed and was dismissed by the first Appellate Authority. In such circumstances, it is only proper that the appeal be restored to the files of the Authority subject to the condition as per paragraph no. 3 of the Notification being satisfied.
The impugned order set aside - assessee is directed to satisfy the aforesaid conditions before the time stipulated in Notification; i.e. 31.01.2024, in which event, the appeal would be taken up and considered on merits - petition allowed.
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2023 (12) TMI 66
Blocking of ITC - non-compliance with the statutory requirements under the CGST Act, 2017 and rules framed therein so far as steps necessary to be initiated prior to blocking of electronic credit ledger under the Rules - contravention to Rule 86A of CGST Rules, 2017 - non-speaking order - violation of principles of natural justice - HELD THAT:- A plain reading of the said notice dated 02.12.2022 would clearly reveal that, the said notice being a notice so far as blocking of the electronic credit ledger of the petitioner under Section 86A of the CGST Act. There was also no mention of the same being an intimation in respect of proceedings drawn under Section 74 of the Telangana State (TS) GST Act, 2017.
From plain reading of the contents of letter dated 04.11.2023, it would make it evident that the notice dated 04.11.2023 or for that matter 02.12.2022 are not under Section 74 of the Act. The fact that the impugned notice (Annexure P2) called upon the petitioner to submit his explanation as would be evident from Annexure P2 would also goes to establish that it was not an order of attachment of ITC account of the petitioner. If the letter dated 02.12.2022 is neither an order under Section 86A, nor an order under Section 74 of the Act, in these factual circumstances, it is difficult to sustain the said letter dated 02.12.2022. If at all the same is the notice or the order of blocking the ITC account of the petitioner, the same is clearly in contravention to the statutory provisions governing the field of blocking of availment of ITC.
The impugned notice dated 02.12.2022 therefore being in contravention to the provisions of CGST and TSGST Acts are concerned, the same deserves to be and are accordingly set aside - petition allowed.
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2023 (11) TMI 1372
Demand of differential amount of tax, arising from reduction in the rate of tax - recovery notices issued by the respondents complied with the principles of natural justice or not - HELD THAT:- The issue decided in M/S PARDEEP ELECTRICALS AND BUILDERS PVT. LTD. VERSUS UOI TH. SECRETARY DEFENCE AND OTHERS. [2023 (11) TMI 1369 - JAMMU AND KASHMIR HIGH COURT] where it was held that the petitioner is liable to refund the differential amount of service tax arising from the reduction of the rate from 18% to 12% effective after the last date for receipt of tenders. The recovery notices must comply with principles of natural justice.
The cases of the petitioners in these petitions are squarely covered by the above judgment and, therefore, what is said in the said judgment shall apply, on all fours, to these cases as well.
Petition dismissed.
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2023 (11) TMI 1369
Demand of differential amount of tax, arising from reduction in the rate of tax - recovery notices issued by the respondents complied with the principles of natural justice or not - grievance of petitioner is that, had they been put on notice before issuing the demand notices, they could have pointed out that the amount of tax as demanded by the respondents from them was not due even after reduction of rates, if calculated properly - HELD THAT:- In the instant case, the Government issued SRO-GST-06 (Rate) on 21.09.2017 in exercise of powers conferred by subsection (1) of Section 9, subsection (1 ) of Section 11, subsection (5) of Section 15 and subsection (1) of Section 15 of the Act of 2017 and made amendments in SRO-GST-2 (Rate) notification dated 22.08.2017 and reduced the rate of service tax on the works contract from 18% to 12%.
From a reading of SRO dated 21.09.2017, it clearly transpires that the amendments effected were prospective in nature and came into force only w.e.f 21.09.2017. It is, thus, abundantly clear that the service tax came to be reduced from 18% to 12% much after the submission of bid by the petitioner and the last date fixed for receipt of tenders in question. That being the admitted factual position emerging, the above quoted provisions of the contract were to take effect. Since there was decrease in the percentage rate of tax directly related to the contract value with reference to the prevailing rate on the last due date for receipt of tenders, as such, the differential amount was liable to be refunded by the petitioner to the respondents.
The plea of learned counsel for the petitioner, that the rate of service tax from 18% came to be reduced to 12% on 05.08.2017 when the GST Council met and took a decision for reduction of rate of tax, is totally baseless and misconceived.
The plea of the petitioner that the rate of service tax which was taken into account by the petitioner at the time of submission of bid was 12% and not 18% will lose its significance in view of the clear stipulation in the contract agreement that the rates quoted by the petitioner shall be inclusive of the taxes directly related to contract value as prevailing on the last due date for receipt of tenders. It is in reference to this date the respondents were to determine increase or decrease in percentage rates of taxes directly related to contract value. The consequences of increase and decrease were clearly stipulated in special condition No. 49 of the contract agreement.
Conclusion - The petitioner is liable to refund the differential amount of service tax arising from the reduction of the rate from 18% to 12% effective after the last date for receipt of tenders. The recovery notices must comply with principles of natural justice.
Petition dismissed.
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2023 (11) TMI 1365
Challenge to impugned order - appellable order or not - appropraite forum or not - HELD THAT:- Though the aforesaid impugned order is appellable order under the statete before the Tribunal but since the said forum is not available at present this writ petition is being entertained and the issues involved in this writ petition cannot be adjudicated without calling for affidavits from the respondents.
Let the respondents file affidavit in opposition within four weeks; reply thereto, if any, to be filed by the petitioner within two weeks thereafter - There shall be no coercive steps for recovery of the demand in question arising out of the impugned order of the appellate authority concerned if petitioner pays further 20% of the disputed amount of tax within a period of ten days from date.
List the matter for final hearing in the monthly list of February, 2024.
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2023 (11) TMI 1362
Violation of principles of natural justice - challenge to show-cause cum demand notice on the ground that reply to the pre-show-cause notice was not properly considered and discussed and dealt with while issuing the impugned show-cause notice - HELD THAT:- It is not a case that where no opportunity to file any objection for personal hearing was given to the petitioner. Sufficiency o the reason recorded in the impugned show-cause notice cannot be appreciated by the writ Court when the petitioner still has been given ample opportunity to file reply/objection to the impugned show-cause notice which the petitioner did not avail.
Petition disposed of by extending the time to file reply by the petitioner to the impugned show-cause notice dated 18th September, 2023 and also to take all the points raised in this writ petition, to be filed within fifteen days from date and if petitioner files the reply to the same, the same shall be considered and disposed of in accordance with law and by passing a reasoned and speaking order and after giving opportunity of hearing to the petitioner.
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2023 (11) TMI 1344
Prayer to set aside Paragraphs 4.1, 4.2 and 4.3 of the Circular No. 80/54/2018-GST dated 31.12.2018, issued by the Tax Research Unit of the Respondent No. 1 - petitioners argued that the circular improperly clarified the classification of a specific product and contended that any clarification regarding exemption notifications should be issued within one year through a notification, not a circular - HELD THAT:- It is not necessary to examine any of the contentions, as advanced by the petitioners as the impugned circular (Circular No. 80/54/2018-GST dated 31.12.2018) has been set aside by a coordinate Bench of this Court in ASSOCIATION OF TECHNICAL TEXTILES MANUFACTURERS AND PROCESSORS & ANR. VERSUS UNION OF INDIA & ORS. [2023 (11) TMI 666 - DELHI HIGH COURT]. Thus, the petitioners’ grievance with regard to the said circular does not survive.
Petition disposed off.
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2023 (11) TMI 1343
Maintainability of petition - availability of alternative remedy - entitlement to benefit of stay of recovery of balance amount of tax in terms of Section 112 (8) and (9) of the B.G.S.T Act upon deposit of the amounts as contemplated under Sub-section (8) of Section 112 - HELD THAT:- The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act, which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the B.G.S.T Act, enters office.
Subject to deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section 107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act. The petitioner cannot be deprived of the benefit, due to non- constitution of the Tribunal by the respondents themselves. The recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed.
Petiiton disposed off.
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2023 (11) TMI 1342
Maintainability of petition - avaialbility of alternative remedy - Appeal admitted due to non-compliance with sub-sections (1) & (4) of Section 107 of the Odisha Goods and Services Tax Act, 2017 - It is contended that the petitioner has already deposited 10% of the demanded tax amount before the first appellate authority and as there is no second appellate forum, this Court should entertain this writ petition.
HELD THAT:- Since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd appellate tribunal, which has not yet been constituted, as an interim measure subject to the Petitioner depositing entire tax demand with in a period of fifteen days from today, the rest of the demand shall remain stayed during the pendency of the writ petition.
List this matter along with W.P.(C) No.6684 of 2023 on the date fixed therein.
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2023 (11) TMI 1341
Maintainability of petition - avaialbility of alternative remedy - Appeal admitted due to non-compliance with sub-sections (1) & (4) of Section 107 of the Odisha Goods and Services Tax Act, 2017 - It is contended that the petitioner has already deposited 10% of the demanded tax amount before the first appellate authority and as there is no second appellate forum, this Court should entertain this writ petition.
HELD THAT:- Since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd appellate tribunal, which has not yet been constituted, as an interim measure subject to the Petitioner depositing entire tax demand with in a period of fifteen days from today, the rest of the demand shall remain stayed during the pendency of the writ petition.
List this matter along with W.P.(C) No.6684 of 2023 on the date fixed therein.
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2023 (11) TMI 1340
Cancellation of registration certificates - seeking a direction to the respondents to complete the adjudication proceedings of a show cause notice that had been issued to them - HELD THAT:- The cancellation of the registration certificates issued to the appellants was as early as in February, 2023. It was almost two months later that Ext.P1 show cause notice was issued to them on 20.4.2023. It is not in dispute that the appellants have furnished a reply to the show cause notice and have waited for more than four months before pursuing the matter before the 2nd respondent and before this Court. While disposing the writ petition, the learned Single Judge, rightly, directed the 2nd respondent to complete the adjudication process in respect of the show cause notice taking note of the fact that the replies to the show cause notice had already been submitted by the appellants. It was perhaps considering the nature of the allegations in the show cause notice that the learned Single Judge did not deem it necessary to restore the registration certificates to the appellants pending an adjudication of the show cause notice by the 2nd respondent.
There are no reason to disturb the directions of the learned Single Judge and take a different view in the matter of restoring the registration certificates to the appellants - appeal dismissed.
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2023 (11) TMI 1339
Imposition of a penalty under Section 73(11) of the Central Goods and Services Tax Act (CGST Act) and State Goods and Services Tax Act - It was the case of the appellant that the show cause notice did not specifically refer to the provisions of Section 73(11) of the CGST/SGST Act but had proceeded on the assumption that what the appellant was liable to was only a penalty under Section 73(8) of the CGST/SGST Act, which, on the facts of the instant case, did not apply.
HELD THAT:- It is not in dispute that the differential tax amount demanded from the appellant pertains to transactions covered by invoices in which the appellant had clearly shown the price of the goods and also the tax amounts due from the customer concerned. While paying the tax due to the State along with the returns filed by the appellant, the appellant had failed to include the tax amounts covered by the invoices considered by the Assessing Authority for the issuance of the demand for differential tax, and it was under those circumstances that the demand for differential tax came to be made as against the appellant. While it may be a fact that Ext.P1 notice issued to the appellant did not specifically refer to Section 73(11) of the CGST/SGST Act, when we find that, on the admitted facts, the appellant had not paid tax due to the State despite collecting the same from its customers, then, as per the statutory provisions, it is the provision of Section 73(11) and not the provision of Section 73(8) that will apply to determine the penal liability of the appellant.
The Assessing Authority, having found that as per the provisions of Section 73(11) of the CGST/SGST Act, the appellant would be liable to penalty in view of the non-payment of tax collected from its customers, there are no reason to interfere with the findings of the learned Single Judge that upheld the order of the Assessing Authority laying down the correct position in law. Merely because the show cause notice issued to the appellant did not refer to a particular statutory provision, the appellant cannot be said to have been prejudiced when the facts leading to the invocation of the statutory provision concerned were admitted by the appellant.
Appeal dismissed.
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2023 (11) TMI 1336
Inconsistency of some interim orders passed by this Court as regards the amount of pre-deposit - Executive's failure to constitute an appellate tribunal - Whether assessee can be faulted for what is essentially a failure of the Government?
Grant of interim orders - HELD THAT:- There appears to be inconsistency in the interim orders granted by this Court. The Patna High Court in M/s Cohesive Infrastructure Developers Pvt. Ltd. vs. The Central Board of Indirect Taxes and Customs and Others [2023 (11) TMI 247 - PATNA HIGH COURT] while deciding the interim application in similar facts held that 'The statutory relief of stay, on deposit of the statutory amount, however in the opinion of this Court, cannot be open ended. For balancing the equities, therefore, the Court is of the opinion that since order is being passed due to non- constitution of the Tribunal by the respondent- Authorities, the petitioner would be required to present/file his appeal under Section 112 of the B.G.S.T. Act, once the Tribunal is constituted and made functional and the President or the State President may enter office. The appeal would be required to be filed observing the statutory requirements after coming into existence of the Tribunal, for facilitating consideration of the appeal.'
The purpose of grant of interim orders in a lis and the need for consistency in granting orders in similar cases was underlined in Siliguri Municipality v. Amalendu Das [1984 (1) TMI 63 - SUPREME COURT] where it was held that 'The main purpose of passing an interim order is to evolve a workable formula or a workable arrangement to the extent called for by the demands of the situation keeping in mind the presumption regarding the constitutionality of the legislation and the vulnerability of the challenge, only in order that no irreparable injury is occasioned. The Court has therefore to strike a delicate balance after considering the pros and cons of the matter lest larger public interest is not jeopardized and institutional embarrassment is eschewed.'
In congruent facts, identical interim orders are liable to be granted, otherwise an anomalous situation will be created where similarly situated persons will be accorded differential treatment leading to discrimination and violation of Article 14 of the Constitution of India.
Whether assessee can be faulted for what is essentially a failure of the Government? - HELD THAT:- The statute contemplates deposit of 10% plus 20% of the disputed tax liability before the first and second appellate authorities respectively. By imposing a demand of 50% in these matters, the assessees will be penalized for no fault of theirs. This is the rationale which is borne out from the first set of interim orders rendered in M/S Kent Cables [2019 (12) TMI 1665 - ALLAHABAD HIGH COURT], M/S Tulsi Steels [2022 (7) TMI 1488 - ALLAHABAD HIGH COURT] and M/S Nandan Sales Corporation [2023 (7) TMI 1332 - ALLAHABAD HIGH COURT].
The grant of interim orders in the aforesaid manner made in the said orders passed by this Court balances the interests of revenue as well as the rights of the assessees. However, it needs to be clarified that it is always open to the Court to grant interim orders which are at variance with the aforesaid orders in peculiar facts and circumstances of a particular case while exercising writ jurisdiction in the interests of justice.
Conclusion - i) The petitioner shall deposit 20% of the disputed tax liability in addition to the earlier deposit before the assessing authority (which is 10% of the disputed tax amount). Subject to the aforesaid deposit, the recovery proceedings of the balance amount shall remain stayed till the decision of this writ petition. ii) The petitioners should not be penalized for the government's failure to constitute the tribunal.
Learned counsel for the respondents to file counter affidavit. List after six weeks.
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2023 (11) TMI 1335
Refusal to grant an interim order during the pendency of the writ petition - appellants’ contention is that because the Tribunal has not been constituted the writ petition has been filed and the demand ought to have been stayed in its entirety - HELD THAT:- If the interim order is not granted there is likelihood of recovery proceedings being initiated and the writ petition itself may be rendered infructuous. However, there cannot be blanket order of stay but there will be a condition which will be imposed on the appellants.
The appeal stands disposed of by directing the appellants to pay a further 10 per cent of the disputed tax within a period of three weeks from the date of receipt of the server copy of this order and if this condition is complied with the demand and the balance tax penalty and interest shall remain stayed till the writ petition is disposed of.
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2023 (11) TMI 1334
Legality and validity of the impugned SCN u/s 74(1) of the CGST/WBGST Act, 2017 - constitutional validity of Rule 31A(3) of the CGST/WBGST Rules, 2017 - HELD THAT:- The issues involved in this writ petition cannot be adjudicated without exchange of affidavits by the parties. The petitioner has been able to make out a prima facie case for an interim order.
Let the respondents file affidavit in opposition within six weeks; petitioner to file reply thereto, if any, within three weeks thereafter - List this matter for final hearing in the monthly list of March, 2024.
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2023 (11) TMI 1333
Irregular levy of GST - violation of the Principles of Natural Justice - opportunity of hearing not provided to the Petitioner - HELD THAT:- In view of the categorical statement made by the 4th Respondent in the counter affidavit, the payment of the GST by the petitioner has to be termed as valid and legal. Therefore the contention of the respondents that the GST amount paid by the petitioner was not mandated under the law and it was wrongly paid is without any substance and the same has to be rejected, consequently, the impugned order passed by the Respondent no. 3 is quashed. The Respondent No. 2 is directed to process the pending bills, if any, of the petitioner and make the payments as expeditiously as possible preferable within a period of six weeks from the date of receipt of a copy of this order.
Petition allowed.
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2023 (11) TMI 1332
Lifting of attachment of the bank account of the petitioner - HELD THAT:- In the present case, provisional attachment order has been passed in terms of Section 83 of the CGST Act, 2017 on 02.09.2021. In terms of the Section 83 (2), provisional attachment will be in force only for a period of one year. Therefore, the said order could remain in force only till 01.09.2022. However, this Writ Petition is filed on account that the second respondent/Bank has refused to permit the petitioner to operate the bank account citing that they have not received any further communication from respondents 1 and 3 with regard to lifting of the attachment.
Since in terms of Section 83 (2) of CGST Act, the attachment order can no longer be alive and it will automatically expires within a period of one year from the date of issuance of the same, unless or otherwise, it is extended and intimated to the concerned Bank. As far as the present case on hand, the attachment order, which was issued on 02.09.2021, was already expired on 01.09.2022. Therefore, as on date, there is no attachment order against the petitioner.
The Writ Petition is disposed by directing the second respondent to permit the petitioner to operate the bank account maintained with the second respondent-Bank since in terms of Section 83 (2) of the CGST Act, attachment order can no longer remain in force for more than one year from the date of issuance of the same.
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2023 (11) TMI 1331
Rejection of petitioner’s application for waiver of interest in respect of various tax periods during the years 2006-07 & 2007-08 - HELD THAT:- Once the tax liability itself has been taken away, it goes without saying that there is no question of any interest as the interest part also would come to an end in view of the orders, which have been passed from time to time in favour of the petitioner.
Petition disposed off.
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2023 (11) TMI 1308
Maintainability of Advance Ruling application - Liability of sub-lessor liable to charge and pay GST on electricity charged, when sub-lessor charges electricity in additional to rent as per sub-lease agreement for immovable property rented to the tenant based on reading sub-meter - Can electricity charges paid by sub-lessor to the supplier of electricity for electricity connection in the name of the landlord and recovered based on sub-meters from different tenant be considered as amount recovered based on sub-meters from different tenant be considered as amount recovered as pure agent of the tenant when the legal liability to pay electricity bill to supplier of electricity is that of landlord? - Can the advance ruling be effective from beginning of the rent agreement date?
HELD THAT:- The applicant in the present proceeding is neither a supplier of the goods/service nor is the ruling sought on Input Tax Credit in respect of the supply received by the applicant, who as is mentioned supra is seeking to ascertain the liability of his supplier i.e. sub-lessor in the present case.
A conjoint reading of the Sections 95(a) and (c), 97 and 103 of the CGST Act, 2017, depicts that advance ruling means a decision by the AAR to an applicant on matters or on questions specified under Section 97(2) ibid in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant; that an applicant, means any person registered or desirous of obtaining registration under this Act; that such an applicant, may make an application in the prescribed form with appropriate fee, stating the question on which the said ruling is sought. The questions on which the ruling is sought is however, restricted to the 7 [seven] issues listed in Section 97(2), ibid, further, in terms of Section 103, such a ruling shall be binding only on the applicant and on the concerned officer or the jurisdictional officer, in respect of the applicant.
The applicant is not the supplier of the service and that the ruling sought is not for admissibility of input tax credit in respect of supply received by the applicant. This being the factual matrix, the applicant has no locus standi in seeking a ruling in the facts of the present case.
The aforementioned application stands rejected in terms of Section 98(2) of the CGST Act, 2017 read with Sections 95(a), (c), and 103 of the CGST Act, 2017.
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2023 (11) TMI 1305
Interest liability on the petitioners for the delay in remitting the turnover tax - HELD THAT:- The issue decided in SREEVALSAM RESIDENCY, M/S. SNEHA REGENCY, A UNIT OF KOLLENGODE HERITAGE HOTELS & TOURISM PVT. LTD., M/S HOTEL JEENA AND UDAYA BAR, HOTEL ZODIAZ INTERNATIONAL, SAMS PROPERTY DEVELOPERS AND HOTELS P LTD, DAHLIA TOURIST HOME, VERSUS STATE OF KERALA, STATE TAX OFFICER, COMMISSIONER, KERALA STATE GST DEPARTMENT, STATE TAX OFFICER (ARREAR RECOVERY) AND OTHERS [2023 (12) TMI 109 - KERALA HIGH COURT], where it was held that 'In cases where the returns are filed by 31.03.2022, and ToT was cleared on or before 30.04.2022, the FL3/FL11 licensees are not liable to pay interest for delayed payment of the turnover tax for the period 22.05.2020 to 21.12.2020 and 15.06.2021 to 25.09.2021 in Financial Years 2020-21 and 2021-22.'
Petition allowed.
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