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GST - Case Laws
Showing 361 to 380 of 2178 Records
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2023 (11) TMI 515
Issuance of notice in the proceedings seeking reply by 14.08.2023 - grant of opportunity of personal hearing to the petitioner - principles of natural justice - HELD THAT:- Once it has been laid down by way of a principle of law that a person/assessee is not required to request for "opportunity of personal hearing" and it remained mandatory upon the Assessing Authority to afford such opportunity before passing an adverse order, the fact that the petitioner may have signified 'No' in the column meant to mark the assessee's choice to avail personal hearing, would bear no legal consequence.
Even otherwise in the context of an assessment order creating heavy civil liability, observing such minimal opportunity of hearing is a must. Principle of natural justice would commend to this Court to bind the authorities to always ensure to provide such opportunity of hearing. It has to be ensured that such opportunity is granted in real terms - the impugned order itself has been passed on 18.08.2023, while reply to the show-cause-notice had been entertained on 15.07.2023. The stand of the assessee may remain unclear unless minimal opportunity of hearing is first granted. Only thereafter, the explanation furnished may be rejected and demand created.
The impugned order dated 18.08.2023 is set aside. The matter is remitted to the Respondent No.2/Deputy Commissioner, State Tax, Sector-9, Meerut, to issue a fresh notice to the petitioner within a period of two weeks from today - Petition allowed by way of remand.
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2023 (11) TMI 514
Wrongful availment and utilization of Input Tax Credit - issuance of invoices from the non existing firms without actual supply of goods - mandatory provision of Rule 142 (1) (a) of the CGST Rules, 2017 have not been followed - HELD THAT:- It is deemed appropriate to dispose off the writ petition by requiring the petitioner to file objections to the show cause notice within a period of two weeks from today before the respondent No. 2 along with certified copy of the order of this Court. On filing of the objections within the time allowed, it is expected that the respondent No. 2 would proceed to consider the objections after giving personal hearing to the petitioner and pass appropriate orders, strictly in accordance with law within the next 15 days.
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2023 (11) TMI 513
Violation of principles of natural justice - ultra vires the provisions of Section 14, 33(5) and 238 of the IBC and Section 88 of the CGST Act and SGST Act or not - alleged irregularities that had taken place prior to the period of commencement of Corporate Insolvency Resolution process against M/s. SKMPL and served on the petitioner - HELD THAT:- The right course available for the respondents is to file appropriate claim before the Official Liquidator. In case there are no funds available with the company in liquidation, in which case, it is not possible to recover the sales tax dues from the Company in liquidation, in such circumstances, a new cause of action would arise to recover the sales tax dues from the Ex.Directors of the Company in liquidation.
In the present case, the issue of non-availability of the funds with the Official Liquidator for disbursement of the claims, is yet to be decided. Therefore, at present there is no cause of action arose to initiate against the Ex. Directors to recover the sales tax dues payable by the Company in liquidation.
The present action taken by the respondents in passing the impugned orders of demand in the name of M/s. SKMPL, which is in liquidation and serving on the petitioner, is not sustainable - Impugned order set aside - petition allowed.
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2023 (11) TMI 512
Maintainability of petition - availability of alternative remedy of appeal - neither the show cause notice nor the impugned order demonstrates calculation on the basis of which the levy is made - HELD THAT:- On perusal of impugned order and also the Notification No. 4/2018-Central Tax (Rate) issued by the Government of India, Ministry of Finance dated 25 January, 2018 which is placed on record by the learned counsel for the petitioner, it is opined that the contentions as urged by the petitioner need to be asserted and urged by taking recourse of the appellate remedy as available under section 107 of the MGST Act.
It may not be possible for this Court to consider the contentions of the petitioner on examining the issues including the agreement, rates as also other relevant consideration for determination of the value of the development as undertaken by the petitioner and/or the tenements sold/allotted.
All these are issues which would require examining such material and for which appropriate remedy for the petitioner would be to take recourse of the appellate remedy as available.
Petition disposed off.
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2023 (11) TMI 511
Cancellation of petitioner’s GST registration - respondents have not permitted the petitioner to update the records to reflect its current place of business - HELD THAT:- It is considered apposite to dispose of the present petition by permitting the petitioner to file an application for revocation of cancellation of its GST registration, and also substantiate that it is carrying on its business from another premises. If the said application for revocation of cancellation of GST registration is filed within a period of two weeks from today alongwith the relevant documents, the Proper Officer shall consider the same and pass a speaking order within a period of one week from the said date, uninfluenced by the previous order(s).
Petition disposed off.
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2023 (11) TMI 510
Seeking correction of uploading mistake in GSTR-3B of the petitioner for the period February, 2018 - constitutional validity of Circular No. 26/26/2017-GST, dated 29.12.2017 - HELD THAT:- Considering the facts that paragraph 4 of the circular No. 26/26/2017-GST has been read down and it has been stated that the assessee can rectify the mistake in respect of the period in which it is granted. Subsequently, this is the law which has been taken note in several judgments. Question here is of disputed question of fact and this Court cannot be expected to decide the disputed question of fact within the jurisdiction under Article 226 of the Constitution of India.
This writ petition is disposed of with liberty to the petitioner to approach the appellate authority under Section 107 of the GST Act against the impugned order Ext. P15. If the petitioner submits all the documents in his favour before the appellate authority, the authority will examine it in accordance with law and pass an order accordingly.
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2023 (11) TMI 509
Maintainability of appeal- appeal dismissed on the ground of limitation - HELD THAT:- In the present case, it prima facie appears that the appeal was preferred after a delay of about 50 days.
In view of the observation made by the Hon’ble Division Bench in Kajal Dutta. Versus Assistant Commissioner of State Tax, Suri Charge & Ors. [2023 (1) TMI 1097 - CALCUTTA HIGH COURT], this Court is inclined to hold that the appellate authority be directed to reconsider the appeal on merits upon condoning the delay in preferring the same and upon affording reasonable opportunity of hearing to the petitioner.
Accordingly, the order passed by the appellate authority being the Joint Commissioner of Revenue, Raiganj Circle, Raiganj on 15th February, 2023 is set aside - the writ petition is disposed of directing the 2nd respondent herein to reconsider the appeal preferred by the petitioner on merits upon affording reasonable opportunity of hearing to all the interested persons including the petitioner and pass a reasoned order within one month from the date of communication of this order, in accordance with law.
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2023 (11) TMI 457
Seeking grant of bail - no notice for recovery of G.S.T. has been issued against the applicant - HELD THAT:- It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.
Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of STATE OF RAJASTHAN, JAIPUR VERSUS BALCHAND @ BALIAY [1977 (9) TMI 126 - SUPREME COURT], GUDIKANTI NARASIMHULU AND ORS. VERSUS PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH [1977 (12) TMI 143 - SUPREME COURT], RAM GOVIND UPADHYAY VERSUS SUDARSHAN SINGH AND ORS. [2002 (3) TMI 945 - SUPREME COURT], PRASANTA KUMAR SARKAR VERSUS ASHIS CHATTERJEE AND ORS. [2010 (10) TMI 1199 - SUPREME COURT] and MAHIPAL VERSUS RAJESH KUMAR @ POLIA & ANR. [2019 (12) TMI 1461 - SUPREME COURT], the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, this is deemed a fit case for grant of bail. Hence, the present bail application is allowed.
Let applicant, Vikas Jain, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the conditions imposed - application allowed.
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2023 (11) TMI 456
Levy of penalty - evasion of payment of tax - goods not accompanied with proper documents - petitioner has failed to justify for not filing the documentary evidence at the time of detention - HELD THAT:- The purpose of e-way bill is that the department should know the movement of goods. Once the e-way bill has been generated and same has not been cancelled by the petitioner within the time prescribed under the Act, the movement of goods as well as genuineness of transaction in question cannot be disputed. The goods in question could not reach to its destination due to the breakdown of vehicle as stated above and after repair, the vehicle was ready for its onward journey but the same was intercepted in the intervening night of 2/3.6.2023. Since the authorities below have not recorded a finding that there was any intention of the petitioner to evade the payment of tax, the penalty is not justified.
The fact remains that vehicle could not reach its destination within the time mentioned in the e-way bill as the situation is beyond control of the petitioner as mentioned in the affidavit of driver of the vehicle and there was also no intention of the petitioner to evade the payment of tax, thus the impugned orders are not justified in the eyes of law and are liable to be quashed.
The authorities below are directed to refund the amount, if any, deposited by the petitioner in pursuance of the impugned orders, within a period of one month from the date of production of certified copy of this order before the concerned authority - Petition allowed.
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2023 (11) TMI 455
Levy of GST - grant of mining lease/royalty - ex-parte order or not - Section 73 of the U.P. GST Act, 2017 - HELD THAT:- Identical issue decided in the case of M/S JITENDRA SINGH VERSUS UNION OF INDIA AND 5 OTHERS [2022 (5) TMI 533 - ALLAHABAD HIGH COURT] where it was held that Matter requires consideration, both on the issue of liability to pay GST and royalty as also as to jurisdictional error in the second proceeding for the same tax period.
Petitioner prays for and is granted six weeks' time to file counter affidavit. Petitioner shall have two weeks' thereafter to file rejoinder affidavit - List thereafter.
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2023 (11) TMI 454
Cancellation of GST registration of petitioner - petitioner has not paid tax due alongwith the interest - It is submitted that the petitioner is ready to pay any other amount, if it is communicated to him within seven days from the date of communication of this order.
HELD THAT:- Considering the submissions advanced by the learned counsel for the petitioner, on the basis of instructions, that the petitioner had filed returns, and paid the tax as well as interest, the respondent no.4 is directed to take steps for renewing the GST registration of the petitioner within a period of ten days from the date of communication of this order, and if any other amount is due, the petitioner should be communicated the same, which the petitioner shall pay within a period of seven days from its communication.
Petition disposed off.
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2023 (11) TMI 453
Refund claim - claim rejected without affording an opportunity of personal hearing to the petitioner - violation of principles of natural justice - HELD THAT:- From a mere reading of Rule 92(3) of Central Goods and Services Tax (CGST) Rules, 2017, it is crystal clear that the no application for refund shall be rejected without giving the applicant an opportunity of being heard. However, in the instant case, the same has not been followed which is a clear violation of the principles of natural justice.
In such view of the matter, this Court is inclined to set aside the order passed by the first respondent dated 26.07.2022 as well as the Second Respondent dated 20.01.2020. While setting aside the order, this Court remits the matter back to the second respondent for fresh consideration after affording an opportunity of personal hearing to the petitioner and pass orders afresh in the applications made by the petitioner on merits and in accordance with law.
Petition allowed by way of remand.
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2023 (11) TMI 452
Seeking grant of Regular Bail - evasion of GST - availment of illegal Input Tax Credit by entering into large scale financial transactions - HELD THAT:- The allegation against the applicant is regarding the evasion of GST, but no procedure is initiated by the the GST department against the present applicant under the provisions of the GST Act.
Without discussing the evidence in detail, this Court, prima facie, is of the opinion that, this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, present application is allowed and the applicant is ordered to be released on regular bail subject to conditions imposed.
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2023 (11) TMI 451
Maintainability of petition - opportunity of hearing not provided to petitioner - violation of principles of natural justice - HELD THAT:- Upon consideration of the submission made on behalf of the parties, this Court is inclined to hold that since the petitioner had no opportunity to appear before the authority to substantiate his case or file a reply to the show cause notice issued by the authority due to his precarious medical condition, justice demands that the petitioner be given an opportunity of hearing by the authority before any liability is slapped upon him.
The order impugned passed on 24th August, 2021 is set aside - Petition disposed off.
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2023 (11) TMI 450
Appeal dismissed on the ground of time limitation - Section 5 of the Limitation Act, 1963 - entitlement for opportunity of hearing - HELD THAT:- This Court is inclined to hold that the petitioner is entitled to a hearing by the authority on merits before her appeal is disposed of and any liability slapped upon her - the order impugned dated 27th June, 2023 dismissing the appeal on the ground of limitation is therefore, set aside.
The concerned authority, being the 3rd respondent herein, is directed to reconsider the appeal preferred by the petitioner on merits upon affording reasonable opportunity of hearing to all the interested persons including the petitioner and pass a reasoned order within one month from the date of communication of this order, in accordance with law - Petition disposed off.
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2023 (11) TMI 401
Release of cash seized from the Petitioner - More than 6 months have passed from the date of seizure - consideration received on sale proceeds of silver bars - unexplained transaction under the Goods and Services Act or not - HELD THAT:- Reading the CGST Act and particularly the preamble thereto, would indicate that it is an act to make a provision for levy and collection of tax on intra-State supply of goods or services or both by the Central Government and for matters connected therewith or incidental thereto - When this is read in context of provisions of sub-section (2) of section 67, obviously, when the proper officer confiscates any goods, documents, books or things, he must have reason to believe that they shall be useful for or relevant to any proceedings under this Act.
Reading of affidavit primarily explains that even as per the case of respondent it was not the opinion of the proper officer that it was a seizure in relation to unexplained transaction under the Goods and Services Act, but it was an amount of consideration received on sale proceeds of silver bars. This therefore has to be read in light of observations of Division Bench of Kerala High Court in the decision of Shabu George [2023 (4) TMI 252 - KERALA HIGH COURT]. Para-3 of the aforesaid decision of Kerala High Court held that as the respondent has retained the seized cash for more than six months and is yet to issue a show cause notice to the appellants in connection with the investigation, there can be no justification for a continued retention of the said amount with the respondent. We therefore, allow this appeal by directing the first respondent to forthwith release to the appellant the cash seized from the premises, against a receipt to be obtained from him.
Once it is found that the cash did not form a part of stock in trade, it could not have been seized.
Admittedly, there is no requisition under section 132(A) of the Income Tax Act, though, it was the case of the State that intimation was sent to the Income Tax Department. Even otherwise, the petitioner has not shown the cash as stock in trade - Even otherwise on the facts of this case, what is evident is that the Seizure memo was dated 13.11.2020 and in accordance with sub-section (7) of section 67 thereof when no Notice in respect thereof is given within six months of the seizure of the goods, the goods shall be returned to the person from whose possession, they were seized. On this ground thereto, the petitioner is entitled to the prayer that the amount of cash seized i.e. Rs.69,98,400/- to be returned forthwith to the petitioner.
Petition allowed.
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2023 (11) TMI 400
Principles of natural justice - service of notice upon petitioner - ex-parte order - HELD THAT:- Parties have proposed that the order impugned may be set-aside giving liberty to the respondents to issue fresh notice in accordance with law which may be responded by the petitioner within the time frame fixed in the notice and thereafter fresh order be passed.
The writ petition is disposed of by requiring the respondents to issue fresh notice, to the petitioner, in accordance with land and thereafter proceed to pass orders, strictly in accordance with law.
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2023 (11) TMI 399
Validity of third notice issued by respondent No.2 under the provisions of Section 73 of the Central Goods and Service Tax Act, 2017 - HELD THAT:- From a perusal of the documents, it appears that on 21.09.2021, the first show cause notice was issued and thereafter, on 21.02.2022, the second show cause notice was issued and both the proceedings were dropped by respondents No.3 & 4 vide order dated 27.04.2022 and 13.06.2022 respectively. It is categorically stated in the reply of the State that proceedings were dropped on the ground that show cause notice was issued and respondents No.1 & 2 had taken cognizance of the matter on 27.08.2021 though it is not specifically stated in the order dated 13.06.2022 that a third show cause notice has been issued by respondent No.2 according to the provisions of Section 73 of the GST Act.
Taking into consideration the fact that the petitioner has a remedy to file reply to the show cause notice before the respondent authorities, who have issued the show cause notice, also considering that present is not a case where the principle of natural justice of the petitioner has been violated or the proceedings are without jurisdiction, in the considered opinion of this Court, respondents No. 2 & 3 have the authority of law to issue such show cause notice according to the provisions of Section 73 of the GST Act, 2017. Hence, no exceptional case is made out for interference.
Petition dismissed.
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2023 (11) TMI 359
Detention of goods - documents produced before passing of the detention / seizure order - HELD THAT:- The authorities below has not accepted the documents on the ground that same were produced after the movement of goods. But lost the site of the fact that the discrepancies were cured before the detention or seizure order could be passed.
Once the documents were produced before passing of the detention / seizure order, the authorities ought not to have proceeded further as held by the the Division Bench judgement of this Court in the case of M/S Axpress Logistics India Pvt. Ltd [2018 (12) TMI 68 - ALLAHABAD HIGH COURT] and M/s Bhumika Enterprises [2018 (4) TMI 530 - ALLAHABAD HIGH COURT]. Since the Division Bench has specifically decided the said issue in an identical matter way-back in the year 2018, the impugned order is not justified as the documents have already been produced before passing of the detention as well as seizure order.
The matter is remanded to the first appellate authority, who shall pass a fresh order in accordance with law, expeditiously, preferably within a period of two months from the date of producing a certified copy of this order - petition allowed.
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2023 (11) TMI 358
Cancellation of GST registration of petitioner - petitioner submits that the petitioner is ready to pay all the dues - HELD THAT:- The present Writ Petition (No. 3082 of 2023) is being decided with a direction that in case, petitioner moves his representation for revocation of the cancellation order, under Section 30 of the Central Goods and Services Tax Act, 2017 along with all the GST returns, outstanding tax and dues, if any, within two weeks’ from today, the Competent Authority shall consider the petitioner’s representation and pass appropriate order in accordance with law, within four weeks’ thereafter.
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