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GST - Case Laws
Showing 281 to 300 of 2178 Records
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2023 (11) TMI 1018
Service of SCN demanding GST on some allegedly taxable services - Petitioner submits that the GST which has been demanded in the show cause notice for the services which are not taxable under the GST regime - HELD THAT:- Since the petitioner has approached this Court only against the show cause notice, this Court is not inclined to interfere this writ petition when the petitioner has opportunity to raise objections on all possible grounds against the demand of GST in the show cause notice before the authority concerned.
In view thereof, the petitioner is provided ten days opportunity to file a reply in response to the show cause notice and participate in the adjudication proceedings. Since one of the High Courts has reserved the judgment as per learned counsel for the petitioner, it would be appropriate and in the interest of justice that the adjudicating authority shall not pass final order for a period of one month.
Petition disposed off.
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2023 (11) TMI 1017
Refund claim - Transfer of amount paid as GST Cess in the GSTR-3B filings towards Cess dues under the Kerala Flood Cess - seeking permission to Petitioner to file Exhibit P-9 KFC-A form manually with the 1st Respondent - seeking declaration that the petitioner is not liable to pay interest on the Cess dues already paid as GST Cess - initial period of GST regime.
HELD THAT:- The case is of the initial period of the GST regime. There were genuine difficulties faced by the assessees/dealers and even tax experts in understanding the GST regime. The petitioner has committed a bona fide mistake of depositing the KFC in the wrong account along with its GSTR-3B instead of filing a KFC-A return for payment of the KFC. The petitioner has been refunded the said cess by the 3rd respondent on direction issued by this Court. However, the fact remains that the State was denied KFC from 1st August 2019 to 04.08.2022 - it appears that the petitioner has not been vigilant in responding to the notices issued to the petitioner, inasmuch as the notice of March 2021 remains unanswered by him. Considering this fact, the petitioner should pay the interest from 01.04.2021 to 31.07.2022 and is entitled to get a refund for the remaining period of interest paid by the petitioner.
The present writ petition is disposed of with a direction to the 1st respondent to refund the interest portion to the petitioner after adjusting interest for the period from 01.04.2021 to 31.07.2022.
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2023 (11) TMI 1016
Refund of tax wrongly paid due to absence of inverted duty structure - wrongful payment of tax @ 18% IGST instead of 5% - HELD THAT:- In the present case, there is no dispute on the fact that the vendor of the first respondent had paid 18% duty on the goods supplied to the first respondent. It is also not in dispute that the output or final product of the first respondent is chargeable at 5% IGST.
The fact remains that the input is chargeable to duty at the rate of 5% and the same was admitted by the petitioner as well as the first respondent and it was also stated in the impugned order by the second respondent. In terms of Section 54(3)(ii) of the GST Act, if the rate of tax on input is higher than the rate of tax on output, certainly, the person can claim the refund - Accordingly, in the present case, the duty paid on input is 18% though it is chargeable at 5%. Therefore, this Court is of the considered view that the petitioner is entitled for refund in terms of the provision of the Section 54(3)(ii) of the GST Act and the said view was also held by the second respondent in the impugned order. Hence, this Court does not find any error or illegality in the order passed by the second respondent on this aspect.
This Court is of the view that the first respondent is entitled for refund as per the order passed by the second respondent and the first respondent is also entitled for interest at the rate of 9% per annum of the refund amount for the delay period in terms of Section 56 of the GST Act.
Petition dismissed.
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2023 (11) TMI 1015
Non-filing of statutory GSTR-3B returns for the months from May 2018 to January 2019 - non-discharge of GST liability - demand in respect of the IGST, CGST and SGST and Cess alongwith interest and penalty - no jurisdiction issue nor violation of principles of natural justice - HELD THAT:- This Court does not exercise appellate jurisdiction, but only exercise limited jurisdiction of judicial review. The order, Ext.P4, passed by the first respondent cannot be said to be without jurisdiction or in violation of the principle of natural justice. The order passed is well within the jurisdiction of the first respondent. There has been full compliance of the principle of natural justice, that the petitioner was afforded opportunities of response to the show cause notice and of having been heard, and thereafter the impugned order has been passed.
There are no ground to entertain the present writ petition and the same is hereby dismissed.
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2023 (11) TMI 1014
Maintainability of appeal - time limitation - appeals have been rejected being barred by period stipulated in sub-section (1) read with sub-section (4) of Section 107 of the OGST/CGST Act - availability of alternative remedy provided under Section 112 of the said Act.
HELD THAT:- During pendency of these writ petitions, the Ministry of Finance, Department of Revenue (Central Board of Indirect Taxes and Customs) has issued Notification No.53/2023-Central Tax [S.O.4767(E)], dated 2nd November 2023, by which it has been notified that taxable persons, who could not file an appeal on or before the 31st day of March, 2023 against the order passed under section 73 or 74 of the Central Goods and Services Tax Act, 2017 by the proper officer within the time period specified in sub-section (1) of section 107 read with sub-section (4) of section 107 of the Act, and the taxable persons whose appeal against the said order was rejected solely on the grounds that the said appeal was not filed within the time period specified in section 107, as the class of persons, shall follow certain special procedure for filing appeals in such cases.
In view of the aforesaid Notification, the impugned orders, against which the writ petitions are filed, are set aside and the matters are now remanded to the Appellate Authority to proceed with it in accordance with law.
Petition disposed off by way of remand.
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2023 (11) TMI 1013
Entitlement to CENVAT Credit - case of petitioner is that he made a claim under column ‘7(d)’ inadvertently, instead of making a TRAN-1 claim under column ‘7(b)’ - HELD THAT:- The petitioner makes claim that he ought to have filed returns under by making a claim under Column 7(b) and erroneously he made a claim under Column 7(d). Since the petitioner has claimed that he has necessary invoices and documents to support his claim under column ‘7(b)’, this Court is of the view that the impugned order is to be set aside and matter is remitted to respondent No.1.
Respondent No.1 shall consider the claim of the petitioner under Column 7(b) of CGST Rules, 2017, if there are supporting documents to make claim under Column 7(b). If the claim is established then the consequential relief should follow - Petition disposed off.
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2023 (11) TMI 1012
Availment of excess input tax credit - difference between Form GSTR 2A and Form GSTR 3B for the tax period 2017-18 - HELD THAT:- The Government of India, Department of Revenue, Central Goods Indirect Tax and Customs considered the difficulties faced by the assessees in the initial year in respect of difference in input tax availed in Form GSTR-3B as compared to that received in form GSTR 2A for the financial year 2017- 18 and 2018-19 and has issued clarification vide Circular No. 183/15/2022-GST dated 27.12.2022, and it has been said that where the supplier has filed GSTR-1 as well as return in Form GSTR-3B for a tax period, but has declared the supply with the wrong GSTIN of the recipient in Form GSTR-1, the difference regarding the input tax credit claim by the recipient dealer in its Form GSTR-3B, but it is not reflected in Form GSTR-2A because of the wrong GSTIN of the recipient, the procedure has to be followed as amended in paragraph 4 of the Circular dated 27.12.2022.
Taking into consideration Circular No. 183/15/2022-GST dated 27.12.2022, the present writ petition is allowed. The impugned Exts. P5 and P5(a) orders dated 14.06.2023 and 16.06.2023 are set aside. The matter is remitted back to the Assessing Authority to reconsider the case of the petitioner irrespective of the Form GSTR 2A for the petitioner’s claim of the input tax credit. However, the petitioner shall deposit 10% of the amount assessed within a period of fifteen days and appear before the Assessing Authority with all the documents and evidence in his possession for passing fresh orders in accordance with the law.
Petition allowed by way of remand.
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2023 (11) TMI 1011
Condonation of delay of 59 days in filing appeal before the Appellate Authority - appeal preferred beyond the period of one month as prescribed under Section 107(1) of KGST Act, 2017 - HELD THAT:- Under the KGST Act, the appeal under Section 107 has to be preferred within 60 days. After expiry of 60 days, the appellate authority has discretion for an additional period of 30 days. In the event sufficient reasons are assigned by the aggrieved party, it is well within the jurisdiction of the appellate authority to condone the delay. In the present case on hand, there is no dispute that appeal is filed after expiry of 60+30 days. The statutory provision governing the right of an appeal under Section 107 clearly leads to an inference that Tribunal lacks jurisdiction to condone the delay after 60+30 days. The appellate authority was justified in refusing to condone the delay.
he question that requires consideration is, as to whether this court is bound to follow the principles laid down by Division Bench in an unreported judgment in the case of Simplex Infrastructures [2022 (1) TMI 761 - KARNATAKA HIGH COURT]. If the State is placing reliance on the judgment of the Apex Court then this court cannot rely on an unreported judgment rendered by Division Bench.
In the hierarchy of courts, the law declared by the Apex Court under Article 141 is binding on all the courts within the territory of India. The Constitutional courts while exercising discretion under Article 226 do not have liberty under this rule of discipline, to take a different view or to rely upon supposedly conflicting decisions, where Apex Court has laid down clear law on the subject. The High Courts are not to contradict the law declared by the Apex Court.
If under Section 107, an appeal has to be preferred within a period of 60 days with additional period of 30 days, it was well within the jurisdiction of respondent No. 2-appellate authority to dismiss the appeal only on the count of delay. The judgment rendered by Division Bench of this court in the case of Simplex Infrastructures does not come to the aid of the petitioner herein, as the appellate authority lacks jurisdiction to condone the delay. The period prescribed under Section 107 cannot be condoned under Article 226 of the Constitution of India.
Petition dismissed.
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2023 (11) TMI 1010
Maintainability of petition - availing statutory remedy of appeal - non-constitution of Tribunal - 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.
Petition disposed off 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, and other conditions imposed.
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2023 (11) TMI 1009
The Gujarat High Court allowed the petitioner to withdraw the petition to seek remedy under Section 107 of the CGST Act. The petition was disposed of as withdrawn, with the pendency of the petition considered for the appeal on the question of limitation. The Court did not delve into the merits of the case, keeping all contentions of the petitioner open.
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2023 (11) TMI 1008
Seeking permission of this Court to withdraw the bail application with the liberty to approach the learned trial court, to which learned counsel for the respondent has no objection - HELD THAT:- The bail application is dismissed as withdrawn with the liberty as prayed for - The next date of hearing i.e 13.09.2023 stands cancelled.
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2023 (11) TMI 1007
Right to make application either cancellation for revocation or by filing appeal - Registration Cancellation order not available - fault in the system of the department - HELD THAT:- The order of cancellation of registration of the petitioner is neither available in the portal nor the respondent has been able to hand over a copy of the same to the petitioner nor the petitioner has produced the hard copy of the same before the Court also.
The petitioner cannot be a remediless for the fault in the system of the department and petitioner can’t be deprived of its right to make application either cancellation for revocation or by filing appeal - Petition is disposed of by directing the respondent CGST authority concerned to hand over the hard copy of the order in original cancelling the petitioner’s registration and if it is furnished to the petitioner, petitioner will be entitled to file application for revocation of the same on the basis of the aforesaid hard copy to be supplied within fifteen days.
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2023 (11) TMI 962
Exemption from GST - outward supplies made to a Polytechnic (Vocational Institution) in terms of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 - HELD THAT:- A plain reading of the final audit observations, as approved by the Monitoring Committee, indicates that the demand was founded on the basis that the petitioner was not entitled to the benefit of the Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017. The impugned corrigendums only purported to correct the quantification of the tax recoverable on the aforesaid basis. Any alteration in the amount of tax on account of a computational error may not require specific approval of the Monitoring Committee.
Prima facie, the impugned corrigendums or the impugned SCN are not liable to be set aside on the aforesaid ground.
The premise on which the present petition is founded, does not hold good - Petition dismissed.
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2023 (11) TMI 961
Attachment of the bank account of the petitioner - expiry of a period of one year from the date of the order - HELD THAT:- In terms of Section 83(2) of the CGST Act, any order passed under Section 83(1) of the CGST Act would be inoperative after expiry of a period of one year from the date of the said order.
The learned counsel appearing for Respondent Nos. 2 and 3 fairly states on instruction that the orders dated 04.08.2022 and 24.08.2022, provisionally attaching the aforesaid bank accounts, are no longer operative by virtue of Section 83(2) of the CGST Act - it is considered apposite to direct the concerned banks not to interdict the operation of the aforesaid bank accounts on the basis of the orders dated 04.08.2022 and 24.08.2022 passed under Section 83(1) of the CGST Act.
Petition disposed off.
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2023 (11) TMI 960
Documents / Evidences to be submitted with the refund application - Validity of communication informing the petitioner regarding deficiencies in its application for refund of unutilized Input Tax Credit (ITC) - officer issuing the impugned communication is authorized to issue the communication or not - deficiency in the refund application preferred by the petitioner or not - HELD THAT:- It is important to note that the implication of the impugned communication is that the petitioner would be required to file a fresh application for refund in terms of Rule 90(3) of the CGST Rules. Indisputably, the petitioner’s application for refund cannot be termed as deficient if it is in accordance with Rule 89(2) of the CGST Rules and is accompanied with the documents specified therein. Although, the concerned officer is at liberty to call for further documents to process the claim, the fact that such further documents are not annexed with the application does not render the same deficient.
Respondent does not controvert that the documents referred to in the file noting and also reflected in the GST portal are not covered under Rule 89(2) of the CGST Rules. Concededly, the petitioner had filed all relevant documents that were mandatory in terms of Rule 89(2) of the CGST Rules.
The impugned communication is set aside - the concerned officer is directed to issue the acknowledgement in terms of Rule 90 of the CGST Rules and process the petitioner’s application for refund in accordance with law - petition disposed off.
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2023 (11) TMI 959
Extension of time period for payment of balance amount demanded by the respondent towards interest in instalments - HELD THAT:- This Court feels that the time period of 2 days is not sufficient to make the payment of demanded amount by the petitioner. Hence, this Court is inclined to grant a period of 3 months time to the petitioner for payment of balance amount demanded by the respondent towards interest - It is made clear that if the petitioner had failed to make payment of amount on the due dates, the respondent is granted liberty to initiate the recovery proceedings.
This writ petition is disposed of.
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2023 (11) TMI 958
Rejection of claim for interest, on the refund of GST already granted - calculation of relevant period - refund was initially denied but subsequently allowed.
Whether the period for which the interest is payable under Section 56 of the DGST Act commences from the date immediately after expiry of sixty days from the receipt of an application for refund or from a later date, in case the refund is initially denied but subsequently allowed by the Appellate Authority, Appellate Tribunal, or a court?
HELD THAT:- It is clear from a plain reading of Section 56 of the CGST Act that whereas the main provision of Section 56 of the CGST Act refers to the rate of interest applicable on the amount of refund due, which remains unpaid even after sixty days from the date of application for refund; the proviso provides for an increased rate of interest for the period that commences from the date immediately after the expiry of sixty days from the date of application which is filed pursuant to the claim for refund attaining finality in appellate proceedings. Section 56 of the CGST Act, thus, works as follows. The applicant claiming a refund is entitled to interest at the rate of 6% per annum from a date immediately after the expiry of sixty days from making an application under Section 54(1) of the CGST Act. However, if a person’s claim is denied (or if granted is not accepted by the Revenue) and the order of the Adjudicating Authority is carried in appeal to the Appellate Authority or to the Appellate Tribunal/High Court, which finally upholds the claim, the applicant may have to file a second application to secure the refund - the proviso merely enhances the interest payable to a person for the period commencing from the date immediately after sixty days from the date of his application filed pursuant to its entitlement to refund claim attaining finality.
Once an application for refund under Section 54(1) of the CGST Act has been filed, the same requires to be carried to its logical conclusion. If the said claim is denied by the Adjudicating Authority and the applicant prevails before the Appellate Authority, the order of the Appellate Authority is required to be implemented. However, in one sense, the subsequent application filed by a person pursuant to succeeding before the Appellate Authority, is solely for the purposes of giving a nudge to the process of disbursal of the refund claim and for the proper officer to determine and disburse the interest as payable.
The Adjudicating Authority is directed to process the petitioner’s application for refund filed on 16.05.2023 - Petition allowed.
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2023 (11) TMI 957
Violation of principles of natural justice - Blocking the Input Tax Credit (ITC) of the petitioner in the electronic cash ledger without any reasons - non-service of SCN - HELD THAT:- On looking into the documents produced by the learned counsel for the respondent-Department, it would reveal that there is not much cogent substantial material available to show that the order/decision on the part of the authority concerned in blocking the ITC available in the electronic cash ledger of the petitioner is without primarily issuing an order in this regard or such an official communication being communicated/served upon the petitioner. From the records that have been placed before this Court and also on perusal of the documents would also reflect that the manner in which the authority concerned was required to record the reasons to believe was also lacking except for a vague reference in this regard in the note sheets.
In the given factual matrix of the case, this Court is inclined to allow the writ petition and declare the action on the part of the respondent No. 2 in blocking the ITC available to the petitioner in the electronic cash ledger to be arbitrary, bad in law and also in violation of the principles of natural justice. Therefore, the said impugned action is set aside/quashed holding it to be illegal - the matter stands remitted back to the respondent No. 2 for taking a fresh decision so far as the blockage of ITC available to the petitioner in the electronic cash ledger is concerned.
Petition allowed.
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2023 (11) TMI 956
Validity of order passed u/s 74 and GST demand - Intimation of tax liability read with a show cause notice issued u/s 74 of the WB GST Act, 2017 - Requirement of scrutiny of GST returns u/s 61 first - mismatch between GSTR-7 and GSTR-3B - HELD THAT:- On a reading of the section 74, it is ex facie evident that verification under section 61 of the Act is neither a pre-condition nor a sine qua non for initiation of proceedings under section 74 of the Act. The opening words “where it appears to the proper officer” clarifies that it is the appropriate officer who has to form a prima facie opinion prior to initiation of proceedings. In this case, from the records itself it appears that there is an apparent mismatch between FORM GSTR-7 and FORM GSTR-3B filed by the petitioner - The practice of entertaining writ petitions challenging legality of show cause notices inevitably result in stalling enquiries and retarding the investigative process meant to find the real facts with the participation and presence of the parties is to be deprecated. An assessee cannot choose to ignore all notices and steps taken by the respondent authorities who are bound to act in a time bound manner under the Act and thereafter take the plea of natural justice.
The unreported decision cited in Prabhu Dayal Jajoo vs. The Deputy Commissioner, State Tax, Budge Budge Charge and Ors. [2023 (6) TMI 830 - CALCUTTA HIGH COURT] is inapposite. In this case, the show cause notice had been uploaded on a different portal and this fact was unknown to the petitioner. However, in the facts of this case the impugned notices had been uploaded in the same portal under the link Additional Notices and Orders which the petitioner was deemed to have knowledge of.
There is no illegality nor perversity nor infraction of law nor procedural impropriety which warrants any interference with any of the impugned orders and steps taken pursuant thereto - Application dismissed.
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2023 (11) TMI 955
Validity of order passed u/s 74 and GST demand - Intimation of tax liability read with a show cause notice issued u/s 74 of the WB GST Act, 2017 - Requirement of scrutiny of GST returns u/s 61 first - mismatch between GSTR-7 and GSTR-3B - HELD THAT:- On a reading of the section 74, it is ex facie evident that verification under section 61 of the Act is neither a pre-condition nor a sine qua non for initiation of proceedings under section 74 of the Act. The opening words “where it appears to the proper officer” clarifies that it is the appropriate officer who has to form a prima facie opinion prior to initiation of proceedings. In this case, from the records itself it appears that there is an apparent mismatch between FORM GSTR-7 and FORM GSTR-3B filed by the petitioner - In this case, the petitioner despite having received notice as regards the intimation of tax GST DRC-01A and the subsequent show cause notice failed to respond to the same. An assessee cannot choose to ignore all notices and steps taken by the respondent authorities who are now bound to act in a time bound manner under the Act and thereafter take the plea of natural justice.
The unreported decision cited in Prabhu Dayal Jajoo vs. The Deputy Commissioner, State Tax, Budge Budge Charge and Ors. [2023 (6) TMI 830 - CALCUTTA HIGH COURT] is inapposite. In this case, the show cause notice had been uploaded on a different portal and this fact was unknown to the petitioner. However, in the facts of this case the impugned notices had been uploaded in the same portal under the link Additional Notices and Orders which the petitioner was deemed to have knowledge of.
There is no illegality nor perversity nor infraction of law nor procedural impropriety which warrants any interference with any of the impugned orders and steps taken pursuant thereto - Application dismissed.
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