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GST - Case Laws
Showing 301 to 320 of 2178 Records
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2023 (11) TMI 954
Seeking release of amount resumed/seized by respondent no. 2 - power to seize cash under Section 67 of the CGST Act - HELD THAT:- The present petition is required to be allowed and the respondents are liable to refund the money seized - The respondents state that the amounts so seized has been kept in a fixed deposit bearing interest.
Respondent no. 2 is, accordingly, directed to remit the amount of ₹14,50,000/- along with accrued interest to the bank account of petitioner no. 1, and remit ₹1,00,50,000/- along with accrued interest to the bank account of petitioner no. 2 - Petition allowed.
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2023 (11) TMI 953
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 952
Refund of IGST - entitlement of refund while claiming duty drawback - goods exported out of India during the transition period after the rollout of the GST Regime (from 01.07.2017 to 30.09.2017) - Constitutional validity of Paragraph 11(d) read with 12A(a)(ii) of the Notes and Conditions of Notification No. 131/2016-Cus. (N.T.), dated 31.10.2016 (as amended by Notification No. 59/2017-Cus. (NT) dated 29.06.2017 and Notification No. 73/2017-Cus.(NT) dated 26.07.2017) - constitutional validity of Circular No.37/2018-Customs dated 09.10.2018.
HELD THAT:- Reliance placed in the case of M/S AMIT COTTON INDUSTRIES THROUGH PARTNER, VELJIBHAI VIRJIBHAI RANIPA VERSUS PRINCIPAL COMMISSIONER OF CUSTOMS [2019 (7) TMI 472 - GUJARAT HIGH COURT] where it was held that respondents are directed to immediately sanction the refund of the IGST paid in regard to the goods exported, i.e. 'zero rated supplies', with 7% simple interest from the date of the shipping bills till the date of actual refund.
The respondents are directed to process the petitioner’s claim for refund along with applicable interest in accordance with law in light of the aforesaid decision - petition disposed off.
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2023 (11) TMI 951
Liability of tax on petitioner-firm - inadmissible ITC claimed from bogus firms - no opportunity of hearing provided - HELD THAT:- The precise grievance of the petitioner before this Court is that respondent No. 4 has already issued a show cause notice dated 09.03.2018 (P-4) for the same transaction and for the same period. But now again a fresh show cause notice has been issued to the petitioner in Form GST DRC-01 dated 23.11.2022 (P-8) and without opportunity of personal hearing, the impugned order has been passed on 25.01.2023 confirming the tax liability of Rs. 24,60,526/-along with interest amounting to Rs. 19,55,560/- and penalty amounting to Rs. 12,30,264/- under Section 74 (11) of the CGST/SGST Act, 2017.
The impugned order dated 25.01.2023 (P-1) is set aside - petition allowed.
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2023 (11) TMI 950
Refund claim - services exported by the appellant fulfilled the conditions of export under Section 2 (b) (v) of IGST Act, 2017 or not - intermediary services or not - HELD THAT:- It is not in dispute that the petitioner is a public limited company incorporated in India, in consonance with the Indian Companies Act, 1956. The petitioner is also registered with the department under GST vide Registration No. 06AABCD7720L1ZM dated 01.07.2017 whereas FKDG is a company incorporated in Germany. The petitioner does not carry out any marketing of the products of FKDG nor any product is delivered by FKDG to it. The activities performed by the petitioner are original activities and for doing the same, it has been charging costs from FKDG. Therefore, it cannot be stated to be intermediary of FKDG and the services provided by it to FKDG cannot be stated to be intermediary services. Thus, a wrong observation has been made by the respondents in this regard.
The orders dated 13.09.2019 (Annexure P-10) dated 04.03.2021 (Annexure P-12) are set aside and the writ petitioner is entitled to seek refund for the period from July 2017 to March 2019 from the respondents. The respondents are accordingly directed to release the refund amount to the petitioner within a period of four weeks.
Petition allowed.
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2023 (11) TMI 949
Supply or not - subsidized deduction made by the Appellant from the Employees who are availing food in the factory - GST on nominal amount deducted from the salaries of its employees - GST on the nominal amount deducted from the Manpower supply contractor in case of contractual employees - Section 7 of Central Goods and Service Tax Act, 2047 and Himachal Pradesh Goods and Service Tax Act, 2017 - Input Tax Credit (ITC), on the GST charged by the Canteen Service Provider.
HELD THAT:- Any activity, which supports the main activity or necessary’ to carry out the principle activity, is an activity or transaction in connection with or incidental to or ancillary’ to the principle activity. The Appellants has pleaded that he is providing food in compliance to the provisions of the Factories Act, 1948 and therefore, even going by his own pleading, supply of food is in connection with and ancillary to his main activity of manufacture and supply of automotive components - Further, in terms of Section 2(17) (c), the volume of transaction is immaterial for the purpose of coverage under “Business”, therefore, even if supply of food is quite insignificant activity in terms of volume of transaction, still in terms of clause (c) of the aforesaid section ibid, the activity of supply of food, is a supply within the meaning of supply under Section 7 of the CGST Act. 2017. In other words, clause (b) and (c) of definition of business covers the activity of supply of foods, within the definition of “business”.
Employment Agreement lists out the compensation which is agreed to be granted by the employer to the employees towards their services. If any perk is mentioned in the employment contract, then it becomes binding for the employer to provide the same to the employees, otherwise such an employer can be sued in the court of law for the breach of condition of employment contract. Therefore, anything provided beyond the employment contract, is a part of sweet will or largesse on the part of employer and cannot be insisted upon by an employee. Viewed from this angle, a perk, which is not specified in the employee contract, is not in lieu of services, supplied by the employer to the employee but the largesse or matter of good will on part of such employer. Therefore, absence of mention about supply of subsidised food, in employment contract, cannot be equated with perk mentioned in the employment contract as talked about in Circular No. 172/04/2022-GST dated 06.07.2022 of CBIC.
From the reading of provisions of Section 46 of the Factories Act, 1948. it is clear that in a factory’ where more than 250 workers are ordinarily employed, there provisions for canteen is a must, however, it does not provide for any provision for exemption from levy of any taxes. In fact tax in the case of supply of food-leverages is leviable in terms of the provisions of the GST Iaw; and is not covered by any exemption, at all - the supply of food even at subsidised cost, is a supply within the meaning of Section 7 of the CGST Act, 2017 [value of such supplies to be determined under Section 15 of the CGST Act, 2017 read with provisions of Chapter IV of the CGST Rules, 2017] and do not qualify as perk as considered in terms above Circular dated 06.07.2022 ibid.
The Appellant has relied upon the Circular dated 06.07.2022 and, to strengthen his claim, has also further stressed that it is settled law’ that circulars issued by CBIC arc binding on and to be followed by revenue. But, the fact of the matter is that, since the Appellant had no explicit contractual agreement with regard to the canteen facility, the same cannot be equated to perquisites mentioned in the said Circular. Hence, even as per the Circular ibid, and cited by the Appellant, the canteen facility goes out of the purview of ‘perquisites’ as the canteen facility was not provided in terms of contract between the employer and employee.
Whether input tax credit (ITC) is available to the Appellant on GST charged by the service provider on the canteen facility provided to employees working in the factory or otherwise? - HELD THAT:- The provisions of blocked credit under Section 17(5)(b), inter-alia on food and beverages, do not apply only where, it is obligatory for an employer to provide goods and services or both to the employee under any law for the time being in force. Since, the proviso carves out an exception to the Rules/ Provisions, a strict interpretation is required to be adopted for examining its applicability. Since the contract workers are not employees of the Appellant, therefore, the benefit of the above proviso will not be applicable in respect of contract workers but will be limited only with respect to the employees.
As second proviso to Section 17(5)(b) inserted vide CGST Amendment Act, 2018, effective from 1.2.2019, is applicable to the whole of clause (b) of sub-section (5) of Section 17 of the CGST Act, 2017, therefore, Input Tax Credit will be available to the Appellant in respect of food & beverages as canteen facility, is obligatorily to be provided under the Factories Act, 1948, to its employees working in the factory’. Input Tax Credit will be available in respect of such services provided by canteen facility’ to its direct employees but not in respect of other type of workers including contract employees/Workers, visitors etc.
From the facts of the case, it is clear that Canteen Contractor is providing Restaurant Service to the Appellant which is chargeable to GST @5% rate in terms of Notification No. 11/2017- Central Tax (Rate) dated 28.06.2017, as amended, without availment of ITC. Under explanation to the aforesaid entry, it has been clarified that the concessional rate is mandatory rate and availing the normal rate of tax will not apply and that is the reason the amended Notification No. 20/2019-C.T. (Rate) dated 30.09.2019 has been issued exercising power under Section 16(1) and Section 148 of the CGST Act, 2017, so as to come out of the provisions of permitting availment of ITC. In other words, a Taxpayer providing Restaurant Service has no option of taking ITC and providing Restaurant Service at normal rate.
Though the Section 17(5) of the CGST Act. 2017 does not debar availment of ITC in entirety, however, in the present case availment of ITC is debarred in terms of provisions of Notification No. 11/2017- Central lax (Rate) dated 28.06.2017 as amended vide Notification No. 20/2019-C.T. (Rate) dated 30.09.2019.
Thus, to conclude,
i) Supply of food to the employees and contract workers is a supply under the provisions of Section 7 of the CGST Act, 2017 and the Himachal Pradesh Factories Rules, 1950 and accordingly, it is leviable to the GST.
ii) Input Tax Credit will not be available to the Appellant on GST charged by the canteen service provider, in terms of provisions of the Notification No. 11/2017- Central Tax (Rate) dated 28.06.2017, as amended vide Notification No. 20/2019-C.T. (Rate) dated 30.09.2019.
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2023 (11) TMI 876
Rejection of petitioner’s application for revocation of cancellation of registration - obtaining ITC fraudulently which is ultimately passed on to other third entities - violation of principles of natural justice - HELD THAT:- On a plain reading of section 29 of the Act, it is evident that there is a apparent difference between section 29 (1) and section 29 (2) of the Act. Both the sections operate in different fields. The power to cancel retrospectively is provided under section 29 (2) of the Act. The intention of the Legislature is that in certain circumstances, the authorities have the power to retrospectively cancel the registration of any person which has been obtained by fraud, willful misstatement or suppression of facts. Entries which have been obtained on the basis of fraudulent registration and to allow accumulation of tax credit in favour of third parties would defeat the object and purpose of the Act - the Legislature had contemplated retrospective cancellation of registrations which have been obtained to fraudulently avail ITC not only by the taxpayer whose registration is sought to be cancelled but also other entities which wrongfully seek to avail ITC.
There has been no violation of the principles of natural justice in the proceedings conducted by the authorities. On the contrary, the petitioner had been granted adequate opportunity by the respondent authorities. The impugned orders are well reasoned - No cogent evidence has been relied on by the petitioner to warrant any interference with the impugned orders. There has also been no contravention of any law nor any procedural impropriety which warrants any interference.
Petition dismissed.
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2023 (11) TMI 875
Cancellation of GSTIN registration of the petitioner - cancellation on the presumption that the petitioner has not commenced any business - HELD THAT:- This Court is of the considered view that looking at any aspect it appears that the petitioner had only made genuine transactions and the error had been committed only on the part of the auditor who had filed GSTR-10 returns after knowing about the cancellation of GSTIN registration of the petitioner. Hence, the impugned order is liable to the set aside and the GSTIN registration No.33AQRPD0201D1ZO standing in the name of M/s.Selvi Transport is directed to be restored.
Considering the submission made by the learned Additional Government Pleader, the petitioner is directed to file an application for restoration of GSTIN registration within a period of one week from the date of receipt of a copy of this order and the respondent shall revoke the cancellation of GSTIN registration No.33AQRPD0201D1ZO within a period of two weeks thereafter.
Petition disposed off.
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2023 (11) TMI 874
Jurisdiction of GST officers - Validity of proceedings initiated under Section 149 of the CGST Act, 2017 - proceedings are wholly without jurisdiction and without the authority of law or not - supply of goods to the job worker - inter-state supply or intra-state supply? - HELD THAT:- From construction of Section 7,8 and 10, it would be evident that to determine whether the supply is inter-state supply or intra-state supply, it would depend on the place of supply and not delivery of the goods. In case, where the supply is made on the direction of a 3rd party, then place of the principal or the 3rd party shall be the place of supply as per Section 10(1)(b) of the IGST Act.
In the present case, the delivery of goods was destined to M/s.Carbomix Polymers (India) Pvt.Limited, Kannur, Kerala, on instructions by MRF Limited to whom the goods were sold and invoice was issued in the name of MRF Limited. - the supply of goods in the present case was inter-state supply and not intra-state supply and the same would attract the tax under the IGST Act.
In the present case, Ext.P1 invoice issued by the petitioner describes the buyer/principal as the customer and the job worker as the consignee and it is in compliance of job work procedure contemplated under Section 143 of the Act read with Ext.P12 circular - the supply being intra-state supply, the said supply would be governed under the IGST Act and Rules made thereunder and not under the CGST/KSGST Act and Rules.
In the present case, the place of supply is in the state of Tamil Nadu but the delivery of the goods is within the State of Kerala i.e, from Ernakulam to kannur. The goods of the petitioner were not intercepted for non-generation of KER-1 and was not part of Ext.P4 notice. The only allegation was that the petitioner had charged IGST instead of CGST and SGST. Even otherwise, this was time when the transition from the Kerala VAT tax regim to CGST/SGST tax regim was taking place, and the E-way bill system was being introduced and therefore, for not generating the KER-1 declaration, when the goods were accompanied with the other required documents such as invoices etc., itself would not be sufficent that the supply was in violation of the provisions of the Act and Rules.
As the respondents did not have the jurisdiction and they assumed the jurisdiction which was not vested in them for issuing Ext.P4 notice and Ext.P8 order, it is found that the whole proceedings are without jurisdiction and therefore, the argument of learned Government Pleader that the petitioner has approached this Court at the stage of issuing show cause notice and the writ petition should not be entertained, does not require much consideration.
Petition allowed.
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2023 (11) TMI 873
GST Refund Claim - denial on the premise that the appellant has not replied to the SCN - time limitation - HELD THAT:- When the matter was taken up for hearing, the learned standing counsel appearing for the respondents produced a copy of the notification No.53/2023-CENTRAL TAX dated 02.11.2023 issued by the Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs, New Delhi, wherein, time is granted to file an appeal against the order in Form GST APL-01 in accordance with sub section (1) of section 107 of the Central Goods and Services Tax Act, 2017, on or before 31st day of January 2024, to the taxable persons, who could not file the same within the time stipulated.
In reply, the learned counsel appearing for the appellant sought liberty to the appellant to approach the appellate authority for filing necessary appeal.
Thus, liberty is granted to the appellant to approach the appellant authority, if so advised - appeal disposed off.
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2023 (11) TMI 872
Cancellation of GST registration - blocking of ITC to all the customers of the petitioners - violation of fundamental right of doing business guaranteed under Article 19 (1) (g) of Constitution of India - no discrepancy in the claim of the input tax raised by the petitioners for the Financial Year 2017-2018 and 2021- 2022 - HELD THAT:- This Court is not going into the allegations as mentioned in Ext.P1 show cause notice. However, as the show cause notice has been issued and the petitioners have responded to the said show cause notice, the second respondent is directed to conclude the adjudication of Ext.P1 show cause notice issued to the petitioners expeditiously, in accordance with law and petitioners should be afforded opportunity for giving evidence in support of their claim. The second respondent should make endeavour to finalise the adjudication proceedings of Ext. P1 show cause notice expeditiously, preferably, within a period of two months and communicate the orders to the petitioners.
The writ petition is finally disposed of.
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2023 (11) TMI 871
Classification of service - job work of converting raw material into Antraquinone derivatives - Whether the service in question falls within the entry Sr. No. 26 of notification No. 11/2017-CT (Rate) dated 28.6.2017, as amended vide notification No. 20/2017-CT (Rate) dated 30.9.2019 SAC 9988 (id) & attract GST @ 12% or otherwise? - HELD THAT:- The description of the heading 9988 is manufacturing services on physical inputs (goods) owned by others. Job work as defined under section 2(68) of the CGST Act, 2017, means any treatment or process undertaken by a person on goods belonging to another registered person and the expression "job worker" shall be construed accordingly. The applicant has stated that they are engaged in converting the inputs Nitroantraquinone (HSN 2909); (ii) Monon methyl Amine (HSN 2921) & (iii) Bromine (HSN 2801) supplied by the principal into Antraquinone derivatives (HSN 2914).
A conjoint reading of notification No. 11/2017-CT (Rate) dated 28.6.2017, as amended, together with circular No. 126/45/2019-GST dated 22.1 1.2019, clearly depicts that there is a clear demarcation between scope of the entries at item (id) and item (iv) in so far as heading 9988 of Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017 is concerned. While entry (id), ibid covers job work services as defined in section 2(68) of CGST Act, 2017, in respect of treatment or processing undertaken by a person on goods belonging to another registered person, the entry (iv) on the other hand while excluding the services covered by entry (id), covers only such services which are carried out on physical inputs/goods which are owned by persons other than those registered under the CGST Act. To summarize, therefore, Sr. No. 26(id) (residual entry | covers job work where inputs are sent by registered person, while Sr. No. 26(iv) covers manufacturing services (processing) wherein inputs (goods) are sent by an unregistered person.
The service in question falls within the ambit of entry Sr. No. 26(id) of notification No. 11/2017-CT (Rate) dated 28.6.2017, as amended vide notification No. 20/2017-CT (Rale) dated 30.9.2019 and is classifiable under SAC 9988 and will attract GST @ 12%.
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2023 (11) TMI 870
Levy of GST - supply involved in terms of section 7 of the CGST Act, 2017 or not - amount deposited by the applicant (75%) in escrow account against bank guarantee pending outcome of the further challenge against Arbitral Award or dissatisfaction against DAB decision - time of supply'when tax on such DAB/arbitral award is payable to Government exchequer - eligibility to claim Input Tax Credit (ITC) - scope of 'consideration' as defined under section 2(31) of the CGST Act, 2017 - HELD THAT:- Consideration in relation to supply/goods, as defined in the Act, includes payment made or to be made, in money or otherwise, in respect of/response to, for and the inducement of the supply, whether by the recipient or by any other person. It shall not include any subsidy given by the Central/State Government. Consideration further also includes monetary value of any act/forbearance, whether by the recipient or by any other person. What is significant is however, the proviso to the definition which states that a deposit given in respect of the supply of goods or services or both shall not be considered as payment made for such supply unless the supplier applies such deposit as consideration for the said supply.
Though the amount ie 75% paid into an escrow account is towards the dispute pertaining to the supply, what brings this particular transaction out of the scope of the consideration is the fact is that it is not paid to the contractor [supplier] but is deposited in an escrow account; that it cannot be withdrawn from the account without the explicit approval of the applicant; that the amount can be withdrawn only subject to the condition that the supplier) [contractor] provides a BG for the said amount - the applicant, though he has deposited the amount in an escrow account, also does not term this as a consideration for the supply since he is agitating his ease, feeling aggrieved by the decision rendered against him. In view of the foregoing, it is held to be outside the scope of 'consideration' as defined under section 2(31) of the CGST Act, 2017.
Supply or not - HELD THAT:- The moment the Supplier [contractor] finally succeeds in the dispute/the applicant accepts the adverse decision, this ruling would be rendered infructuous. This finding is in operation only for a limited period when the supplier [contractor] has not succeeded in the litigation/the applicant has not accepted an adverse decision & the supplier uses the amount lying in the escrow account subject to his furnishing a BG. It also goes without saying that the department reserves every right to recover any interest due on such amount for the delay in payment of GST, if any, on account of the non acceptance of adverse decision of the DAB/Tribunal.
The amount deposited by the applicant (75%) in escrow account against bank guarantee pending outcome of the further challenge against Arbitral Award or dissatisfaction against DAB decision, is not liable to GST under the provisions of CGST Act, 2017.
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2023 (11) TMI 869
Liability of pay GST - lease renewal amount payable to SMC - premium on lease renewal amount payable to SMC - Reverse Charge Mechanism u/s 9(3) or 9(4) of CGST Act - collection made from shareholders/shop owners for making payment of lease and lease premium amounts be considered as supply or not - applicability of GST under forward charge - effect of circular no. 101/20/2019-GST dated 30.4.2019 - reimbursement of lease and lease premium amount get ITC of the GST charged by the applicant.
Whether the applicant is liable to pay tax under Reverse Charge Mechanism [RCM] u/s 9(3) or 9(4) on lease renewal, payable to SMC? - HELD THAT:- Section 9(3) of the CGST Act, 2017 empowers the Government to issue notification, on the recommendations of the GST Council, specifying categories of supply of goods or services or both wherein tax shall be paid on RCM basis by the recipient,. Section 9(4), ibid, on the other hand, empowers Government to issue a notification to specify a class of registered persons who shall in respect of supply of specified categories of goods or services or both received from an unregistered supplier, pay tax on RCM basis - Hence, lease of land is to be treated as a supply of services chargeable to GST. In terms of Sr. No. 5 of notification No. 13/2017-CT(Rate) dated 28.6.2017, as amended, the applicant, [who as a recipient falls within the ambit of a ‘business entity’, in terms of the definition of business as per 2(17), ibid], becomes liable to discharge GST under RCM in terms of section 9(3) of the CGST Act, 2017 in respect of the services supplied by SMC, [a local authority in terms of Section 2(69), ibid].
Whether they are liable to pay GST under Reverse Charge Mechanism u/s 9(3) or 9(4) for premium on lease renewal amount payable to SMC? - whether circular No. 101/20/2019-GS 1 did 30.4.2019 grants them exemption from payment of GST? - HELD THAT:- In terms of Schedule II of GST Act, 2017, the activity i.e. lease of plot and payment of one time lease premium/salami/premium on lease renewal and annual premium paid by the applicant is a ‘supply’ and is covered under Section 7(1) of CGST Act, 2017 - In this case the service provider is not State Government Industrial Development Corporation or Undertakings or any other entity having 50% or more ownership of Central Government, State Government, Union Territory’ but a local authority i.e. Surat Municipal Corporation. Further, the said Notification or GST Act, 2017, does not define the ‘industrial or financial business area’.
For considering any area as industrial or financial business area, it is necessary that the area must be declared as industrial or financial business area by the state government by notification. In the instant matter, no such Notification declaring the area consisting of Sural Municipal Corporation proposed to be leased out to the applicant, as industrial/financial business area, is on record. Therefore, the area cannot be treated as industrial or financial business area in absence of any evidence in support. Thus, the benefits of Sr. no. 41 of not. No. 12/2017-CT(Rate), as amended is not available to the applicant.
Thus, One-time premium/salami/premium on lease renewal and annual lease premium paid by the applicant to the AUDA for leasing of Surat Textile Market is covered under supply of service in terms of Section 7(1) of CGST Act, 2017. Accordingly, the said One-time premium/salami/ premium on lease renewal and annual lease premium paid by the applicant to Surat Municipal Corporation are taxable under GST in terms of the Notification No. 11/2017-CT (Rate) dated 28.06.2017.
Whether the applicant is liable to pay GST under RCM under Section 9(3) of CGST Act, 2017? - HELD THAT:- In terms of Sr. No. 5 of notification No. 13/2017-CT(Rate) dated 28.6.2017, as amended, the applicant, [who as a recipient falls within the ambit of a ‘business entity’, in terms of the definition of business as per 2(17), ibid], becomes liable to discharge GST under RCM in terms of section 9(3) of the CGST Act, 2017 in respect of the services supplied by SMC, [a local authority in terms of Section 2(69), ibid].
Whether collection made from shareholders/shop owners for making payment of lease and lease premium amounts be considered as supply and whether GST under forward charge is applicable on it? - HELD THAT:- The collection made from shareholders/shop owners, who are members of the cooperative society, by the applicant, for making payment of lease and lease premium, is a supply under section 7 of the CGST Act, 2017 and would be leviable to GST under forward charge.
Whether the collection made from shareholders/shop owners by the applicant if held leviable to GST, then can the applicant’s shareholder/shop owners who are reimbursing the lease and premium on lease renewal be eligible for ITC of the GST charged by the applicant? - HELD THAT:- 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 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 person who intends to avail the ITC and that the ruling is sought on behalf of their members and shareholders who are distinct persons. This being the factual matrix, It is found that the applicant has no locus standi in seeking a ruling in the facts of the present case on this question to be precise.
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2023 (11) TMI 813
Levy of penalty - goods being transported without e-way bill under U.P. G.S.T. Act, 2017 read with Rules framed thereunder - HELD THAT:- Learned Division Bench of this Court in M/s Varun Beverages [2021 (10) TMI 429 - ALLAHABAD HIGH COURT] held Having heard the learned counsel for the parties and perused the record, so far as the matter is squarely covered by a decision of Division Bench of this Court in M/s Godrej and Boyce Manufacturing Co. Ltd [2018 (9) TMI 1261 - ALLAHABAD HIGH COURT], with which we are in agreement, the present writ petition is allowed.
The petitioner is entitled to the benefit of the judgment rendered in M/s Varun Beverages - the impugned orders dated 22.12.2020 and 12.02.2018 are quashed - petition allowed.
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2023 (11) TMI 778
Refund of GST - Scope of the contract terms (tender) - post GST era - Refund of the payments made by way of Goods and Services Tax (GST) by the petitioners in respect of the different work orders - effective alteration in the contract between the parties or not - who is liable to pay GST? - HELD THAT:- The price quoted as per the rate contract and accepted by the petitioners/suppliers was inclusive of all duty, levies such as VAT, Excise Duty, etc., and there shall not be any deviation permissible on any ground. Merely because the VAT/Excise Duty has been abolished which was there at the relevant time when the prices were quoted and the rate contract was executed and thereafter has been substituted by the GST, the petitioner cannot be permitted to change the rate contract/rates and cannot be permitted to have the price revision. Hence, from the perspective of the contract between the parties, it is the petitioner/supplier who is to bear taxes in the GST regime as well - Even considering from a different perspective, the petitioner also has a statutory obligation under the GST Act, as a supplier, to bear GST.
In the present case, no new liability is being imposed on the petitioner which was not contemplated in the original contract and the tender document. The petitioner was clearly to bear VAT, Sales Tax and similar other statutory levy, including all indirect taxes payable for the service chain. The expression “similar other statutory levy/cess” in the relevant clause of the contracts makes it abundantly clear - The GST regime has only introduced a common taxation for the entire supply chain which subsumes and does not add to the previous taxes payable on such count. Hence, the argument that the petitioner is saddled with a new liability beyond the contract is untenable in law and in fact.
Thus, it is the petitioner who is liable to pay the GST - In the present case, there is no reason to deviate from the literal rule of construction, since the plain meaning of the relevant taxation clause in the contracts is unambiguous. Secondly, even if the autonomy of the contractual parties and their joint intent is gathered, the unerring intent was for the contractor/bidder to bear all indirect taxes such as VAT, Sales Tax and the like, which has been merely replaced by the GST Act now.
Essentiality of price was never an issue between the parties from the inception and, since not taken at the inception of the contract or the tender but only subsequently, cannot be permitted to be agitated by the petitioner in the circumstances of the present case at all.
All commercial contracts obviously include an element of calculated business risk which includes the enhancement or reduction in taxes. Even if the petitioner argues that the taxes have been enhanced, the same was factored into the original clauses of the contract. Mere replacement of Sales Tax, Excise Duty, VAT and other similar taxes by the GST regime does not change such parameters in any manner - Price escalation, being not provided for in the contract, cannot be read into the contract just because a new taxation regime has replaced the earlier one.
There is no scope of directing refund of the GST paid by the petitioner in respect of any of the work orders/contracts involved in the four connected writ petitions - Petition dismissed.
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2023 (11) TMI 777
Maintainability of writ petition - Scope of tender / auction notice - Levy of GST on Human Hairs - Action of Human Hairs by Devasthanam - Nature of transaction - Outright sale or contract for collection of hairs - Legality and constitutional validity of insisting to pay an amount of Rs. 25,23,638/- towards GST Payment @18% in favour of the 4th respondent for collection of human hair from the 3rd respondent - direction to 3rd respondent to handover the human hair collected by the petitioner - HELD THAT:- Undisputedly there was an auction notification issued so far as collection of human hair from premises of the respondent No. 3 and the tender was finalized in the name of the petitioner herein. In terms of Annexure P1, tender condition No. 25, it was clear that the person in whose name the bid would be finalized would be liable to make payment of GST @ 18%. The petitioner quite aware of the said condition and with wide open eyes, participated in the tender process and quoted his price. The bid was finalized in favour of the petitioner as he was the highest bidder. In terms of the finalization of the bid, the petitioner started collecting human hair from the effective date i.e. 01.08.2021 and did collection for more than eleven (11) months. During the said period, the petitioner never objected the tender condition of requiring payment of 18% GST. It was only when the tender period was coming to a fag end, the petitioner raised an objection with the respondent No. 3 so far as their claim for 18% GST is concerned.
There is sufficient force in the arguments of the learned counsel appearing for the respondent-Department so far as the objection on the maintainability of the writ petition of the petitioner is concerned.
Now at this belated stage after having participated in the tender process, wherein the clause of payment of 18% GST was categorically envisaged, the petitioner having accepted, participated in the tender process, quoted his price, declared successful and having collected human hair from the premises of the respondent No. 3 in terms of finalized tender conditions, the petitioner now cannot be permitted to turn around and question the payment of GST or any of the tender conditions.
What is also relevant at this juncture to take note of the fact is that the respondent No. 3 Devasthanam have filed their Counter and have not disputed the levy of GST on the human hair that was being collected from the temple premises. On the contrary, respondent No. 3 has categorically stated that in fact there is no outright sale which is being carried out by the respondent No. 3 - It is only a right to collect human hair has been offered in the tender and which has been accepted by the petitioner and thus the nature of function performed by the petitioner and the respondent No. 3 is not one which could be brought within the ambit of sale of goods, but is one within the ambit of petitioner providing services to the Devasthanam for collecting of human hair that falls in the temple premises. In the light of the stand of the respondent No. 3 also, the case of the petitioner gets weakened.
There are no merits in the present writ petition - petition dismissed.
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2023 (11) TMI 776
Exercise of Jurisdiction by Centre and the State simultaneously - Section 6 of the CGST/SGST Act - HELD THAT:- Issue notice. Issue notice of the stay application also.
Till the next date, the respondents shall not pass any final order in the proceedings initiated pursuant to the show cause notices dated 26.09.2023, 27.09.2023 and 06.10.2023.
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2023 (11) TMI 775
Permission to transfer the business and the Input Tax Credit lying un-utilized in its Electronic Credit Ledger - HELD THAT:- Essentially the case of the petitioner is that the show-cause notice is unwarranted inasmuch as but for the non-availability of Form ITC-02 under GST Portal, it was only possible for the petitioner to file the Form manually for transferring the Input Tax Credit to the transfaree and therefore the show-cause notice is misconceived.
Having perused the show-cause notice dated 29.09.2023, the petitioner is directed to file a response to the show-cause notice within 2 weeks from the date of receipt of copy of this Court. As soon as the petitioner responds to the show-cause notice, the respondents are directed to consider the case of the petitioner in light of its own case which was decided by the Division Bench of Allahabad High Court in Writ Tax No. 859 of 2023 [2023 (8) TMI 46 - ALLAHABAD HIGH COURT]. Considering the identical issue where the Division Bench of the Allahabad High Court held the petitioner has been non suited on the ground that Form ITC-02 for transfer of input tax credit was not available on the GST Portal which was in nascent stage during the initial months after its implementation on 01.07.2017 and it was incumbent upon the petitioner to have raised a proper grievance on the GST portal help-desk and ought to have waited for the relevant Form to go live on the GST portal instead of making illegal adjustment by use of the Form GSTR-3B of the transferor and the transferee company and mere shortage of working capital cannot be an excuse to bypass the legal procedure laid down under the law.
The respondents are directed to consider the case of the petitioner in light of the decision passed by the Allahabad High Court and pass an appropriate order in accordance with law especially considering the findings of the Allahabad High Court as to non-availability of the Form ITC-02 on online portal of GST - Petition is disposed of.
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2023 (11) TMI 774
Refund of IGST - DTA unit supplying goods / services to SEZ - Inordinate delay in obtaining the endorsements - supply for authorized operation or not - Mismatch in the Statement-4, which cannot be relied on - POD was made not at the time of filing applications but at the time of filing reply/personal hearing.
Inordinate delay in obtaining Endorsement - HELD THAT:- A conjoint reading of Section 16 (3) of IGST Act, 2017 and Rule 30 (4) of SEZ Rules, 2006 would make it clear that the goods can be supplied to SEZ under two situations. One in terms of Section 16 (3)(a) and another in terms of Section 16 (3) (b). In terms of Section 16 (3) (a), goods can be supplied without payment of tax, upon execution of bond or letter of undertaking. In terms of Section 16 (3)(b), goods can be supplied on payment of tax. Rule 30 (4) of SEZ Rules deals with issue of endorsement by the AO to ensure that the goods have been admitted in full into the SEZ and to treat the same as proof of export. Once the endorsement is made, it would be considered that the goods have been exported. In any event, any duty has been paid in terms of Section 16 (3) (b) of the Act, the assessee would be entitled for refund.
In the present case, the question of payment of tax does not arise since the petitioner has paid IGST but there was delay in obtaining the endorsement. Thus, once the assessee had paid the tax and the goods have entered SEZ and obtained endorsement to that effect and furnished the same for the purpose of refund, at any cost, refund cannot be denied for any reason whatsoever. The Officer, who is processing the refund should be concerned only about the aspect as to whether the goods have reached SEZ zone and whether tax for such entry has been remitted or not. In the present case, there is no doubt on the aspect of payment of tax by the petitioner and also entry of goods into SEZ and endorsement also obtained. The delay in obtaining the endorsement and producing the same at any cost would result only in a delay of entertaining the application for refund and in which case, the affected party would only be the petitioner and the interest of the Department not going to be affected in any way.
The denial of refund claim by citing that endorsement obtained was not within 45 days and therefore, claim is barred by limitation and said findings to such effect are liable to be set aside since the failure of obtaining endorsement in time is only due to the fault of AO and the petitioner cannot be denied the claim on the ground of inordinate delay in obtaining endorsement.
Inappropriate Endorsement - HELD THAT:- As rightly pointed out by the learned counsel for the petitioner, as per SEZ Act or Rules, the AO is not required to make endorsement in any particular manner, since the invoices submitted by the petitioner were endorsed by AO, there is no doubt that the goods were supplied to SEZ units under Section 16 of IGST Act, and the petitioner is entitled for zero-rated tax benefit and delay in obtaining the endorsements, or mistake, if any, in such endorsements are all technical irregularity and so long as the signature is not doubted, the petitioner cannot be penalized for the actions of AO, which is beyond the control of the petitioner and by such means, deprive the petitioner's right to claim benefit under 16 (3) (b) of IGST, instead, the respondent-Department should have assisted the assesseee in rectifying the defects, rather than rejecting the petitioner's applications by citing technical reasons.
Endorsement does not state that the goods supplied were for authorized operations - HELD THAT:- The provisions of Section 16 of IGST Act does not contemplate that use of goods is for authorized operation and submission of such endorsement as proof and the amendment to Section 16 stipulating the rules for use of goods for authorized operations was made prospectively w.e.f. 01.10.2023 onwards only and since the petitioner made claim with regard to the supply made to SEZ unit prior to 01.10.2023, the respondent-Department cannot insist that that endorsement must state that goods supplied, were for authorized operations, and such other endorsement - this Court holds that the rejection of the petitioner's claim on the reason that the endorsement does not specifically states that the goods that have been admitted in full was for authorized operations, and it only states that the goods were received in full and that the endorsement is incomplete/insufficient/inappropriate, is not tenable. Hence, the findings rendered by the respondent-Department with regard to the denial of claim by citing the delay in obtaining endorsement, endorsement is inappropriate, etc., are set aside.
Rejection of claim as barred by limitation since POD was made not at the time of filing applications but at the time of filing reply/personal hearing - HELD THAT:- In the present case, admittedly, the second respondent in respect of the claim made for the month of January 2020 has issued an acknowledgment indicating that the application has no deficiencies but thereafter, issued a show cause notice in Form RFD-08 proposing to reject the claim for refund to an extent of Rs. 84,80,988, which is incorrect. If it is the case of the respondent-Department that the petitioner has filed the applications with deficiencies, the respondent-Department ought to have issued any memo pointing out such deficiency under Rule 90(3), instead the second respondent has accepted the petitioner's applications and issued acknowledgment, and therefore, it is not open to the respondent to contend that the supporting documents were filed with a delay.
On a reading of the Circular issued by the Central Board of Direct Taxation, bearing CBDT No.14 of 1955 dated 11.04.1955 would make it clear that when the taxpayer made a claim for refund and if there is any discrepancies or defects in the application made for such claim, the Officer concerned should come forward to assist the assessee bearing in mind the above principles laid down by the CBDT. This Court also expects the Officer concerned to assist the assessee, whenever, the assessee intends to make a claim for refund or any other issue in line with the Circular issued by CBDT. Even in terms of Rule 90 (3), the Officer is supposed to have intimated the deficiencies contained in the application and allowed the assessee to rectify those deficiencies and thereafter, he shall proceeded to consider as to whether the claim for refund is just and proper. But, in the present case, it is seen that the respondent-Department has acted in a way, which is totally contrary to the Circulars issued by the CBDT. Had the respondent-Department intimated about the deficiencies at the point of time, when the applications were entertained by issuing any deficiency memo, obviously, the petitioner would have rectified those defects pointed out by the respondent-Department and would have made fresh application.
In the present case, the application was filed within two years and therefore, the question of making claim after two years does not arise even assuming AO made endorsement after two years, the same would in no way debar the claim as barred by limitation. Further, even Rule 90 (3) of CGST Act permits to make fresh application, which means that in appropriate cases, the Officer concerned can permit the refund application even beyond the period of limitation. Therefore, there are no substance in the submission made by the learned Senior Standing Counsel for the respondent and both respondents have miserably failed to consider the said aspect while passing the impugned orders and hence, the same are liable to be set aside - in terms of notification issued by Central Tax dated 05.07.2022, vide No.13/2022, which excludes the period from 01.03.2020 to 28.02.2022 for computation of period of limitation for the purpose of filing refund application under Section 54 of the CGST Act. Thus, the petitioner's claim cannot be rejected on the ground of limitation.
Mismatch of details, as the endorsement date mentioned in the invoices differs from the endorsement date mentioned in Statement-4 - HELD THAT:- Though the respondent-Department pointed out that the date of endorsement in the invoices is different from the date of endorsement mentioned in Statement-4, in respect of the claim for refund made for the month of December 2019, since said defect was rectified by the petitioner at the time of filing of reply on 28.01.2022 and the petitioner also furnished revised Statement-4, and the same is also accepted by the learned Senior Standing Counsel for the respondent-Department, findings rendered by the respondent-Department on the ground of mismatch are also liable to be eschewed.
This Court is of the view that both the first and second respondent have committed a serious flaw in the decision making process and therefore, the impugned orders have to be held to be unsustainable - Petition allowed.
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