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GST - Case Laws
Showing 41 to 60 of 2178 Records
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2023 (12) TMI 1268
Scope of Advance Ruling - Supply or not - work done by the applicant (NHAI) in shifting the transmission lines for the widening of road under the supervision of MWNL - levy of GST on MWNL on the full amount of work done for shifting the transmission lines by NHAI - NHAI pays GST on the entire value of work done to its contractors and also to MWNL - payment of same amount of GST on the same transaction to two separate entities - double taxation - HELD THAT:- Applicant M/s National Highways Authority of India (NHAI) is receiver of the Goods/Services provided by the MVVNL. In light of subsection (a) provided under Section 95 of CGST Act 2017, only supplier of the services/goods can file Application for Advance Ruling.
No ruling can be given in the matter as discussed above. Hence, Advance Ruling No. UP ADRG-17/2022 dated 08.12.2022 is declared void ab-initio in terms of Section 104 of CGST Act.
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2023 (12) TMI 1201
Detention of goods and vehicles while in transit with valid invoices - Onus on the purchase to prove the genuineness of transaction - Revenue initiated proceedings against seller / supplier of goods - suspension of registration of the supplier - High Court has held that, In essence, the petitioners (purchaser) have to establish their own credentials but not the 4th respondent (supplier of goods). In that view, the 1st respondent (GST Department) is not correct in roping the petitioners in the proceedings initiated against the 4th respondent without initiating independent proceedings U/s 129 of CGST/APGST Act against the petitioners. - However, liberty was granted to initiate proceedings against the petitioners U/s 129 of CGST/APGST Act, 2017.
Held that:- Having heard learned counsel for the petitioner(s), we are not inclined to interfere in the matter.
The Special Leave Petitions (SLP) filed by the revenue dismissed.
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2023 (12) TMI 1197
Validity of SCN - jurisdiction of the assessing officer - justifiabilty of demand - non-reversal of excess ITC availed - HELD THAT:- Once petitioner has subjected itself to jurisdiction of the authority by filing reply, it is not deemed proper to address on the contentions raised by the petitioner touching the jurisdiction as well as merits of the show cause notice. Petitioner if so advised, may file additional reply incorporating the submissions as advanced before this Court.
This Court hopes and trusts that the authority concerned shall address on the issues raised in the reply/ additional reply and pass an order with due advertence to the record keeping in mind the provisions of GST Act maintaining judicial discipline.
The writ petition disposed off.
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2023 (12) TMI 1196
Seeking permission to travel abroad for a period of 12 months - HELD THAT:- This Court deems it appropriate to modify the condition (i) of order dated 07.07.2022 to the extent, that instead of prior permission to be obtained from the I.O., the same be read as “prior permission of the Trial Court”.
Accordingly, the applicant/ petitioner is granted permission to travel abroad i.e. Dubai, UAE, for a period of two months, on the same terms and conditions imposed vide order dated 31.12.2022 by the learned Trial Court, to the satisfaction of the learned Trial Court.
Application allowed.
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2023 (12) TMI 1195
Levy of penalty and interest without any jurisdiction - extension of time limit - HELD THAT:- The time limit fixed by the learned Judge for filing appeal with required pre-deposit, is extended by further period of eight weeks, which will take effect from today. Accordingly, the appellant shall file an appeal before the first respondent along with pre-deposit of 10% of Rs. 14,88,370/-, as directed by the learned Judge in the impugned order passed in the writ petition, within the time extended today. On filing of such appeal, the first respondent shall consider the same, without raising any issue relating to limitation, if any and pass appropriate order, on merits and in accordance with law, after affording an opportunity of hearing to the appellant, as expeditiously as possible.
Appeal disposed off.
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2023 (12) TMI 1194
Seeking grant of anticipatory bail - scam of availing bogus input tax credit on the basis of forged documents - HELD THAT:- The public exchequer has been cheated. It also appears that upon documents of some other persons registration of the GST has been made to avail false input tax credit. Bogus bills are also prepared for the same and thus the present applicant has played an important role in commission of the offence of economic nature. It also surfaces that money is transferred from one account to another account and such huge loss has been caused to the government exchequer by the petitioner. Hence, serious economic offence is made out against the petitioner, which has wide effect on the society. Thus, the petitioner has failed to make out a case to allow this application and grant of pre-arrest bail. No case is made out to exercise the judicial discretion in favour of the applicant-accused. There is no whisper to indicate that petitioner has been falsely implicated in the offence.
To be noted that, this is an economic offence having huge magnitude needs to be viewed with different approach and to be considered seriously, as it is eroding economic death of the country.
Without expressing any opinion on the merit of the case, this Court is of the view that petitioner cannot be released on pre-arrest bail - Petition dismissed.
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2023 (12) TMI 1193
Validity of SCN issued under Section 73 of the CGST Act, 2017 - Non-application of mind - respondent authorities have alleged that there appears to be non-payment of tax by the petitioner @ 28% and for which also, the explanation has been sought for by the petitioner - violation of principles of natural justice - HELD THAT:- A plain reading of the Show Cause Notice itself would give a clear indication that the Show Cause Notice lacks necessary information, source and the materials on the basis of which the authority concerned found the necessity for issuance of the Show Cause Notice. The Show Cause Notice, from the plain reading, seems to be one which has been issued in a mechanical manner without application of mind and without any cogent sufficient materials available or even the basic scrutiny or the investigation which were required for the authority concerned in reaching to the conclusion that certain transactions which have been carried on by the respondents appear to have been the transactions where there is evasion of tax or where there is suppression of material facts or atleast there was reasonable suspicion on the transactions so made by the petitioner.
This Court also finds sufficient force in the submissions made by the learned counsel for the petitioner when they say that since the proceeding has been initiated under Section 73 of the Act, the very provision of Section 73 of the Act starts with the words where it appears to be for the authority concerned which by itself means that at the time where the authority appears to found it necessary for initiating the proceedings, there ought to had been some material, information or even sort of a complaint available with them as regards the suspicious transactions or the alleged evasion of tax made by the petitioner.
Ex. P1 – Show Cause Notice, dated 30.09.2023 would not be sustainable as they are bereft of facts and materials and the same deserves to be and is accordingly set aside/quashed - petition allowed.
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2023 (12) TMI 1192
Maintainability of petition - availability of alternative remedy - non-constitution of the tribunal - HELD THAT:- Since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd Appellate Tribunal, which has not yet been constituted, as an interim measure subject to the petitioner depositing entire tax demand within a period of fifteen days from today, the rest of the demand shall remain stayed during the pendency of the writ petition.
The I.A. stands disposed of - List this matter along with W.P.(C) No.6684 of 2023 on the date fixed therein.
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2023 (12) TMI 1191
Maintainability of petition - availability of alternative remedy - non-constitution of the tribunal - HELD THAT:- Since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd Appellate Tribunal, which has not yet been constituted, as an interim measure subject to the petitioner depositing entire tax demand within a period of fifteen days from today, the rest of the demand shall remain stayed during the pendency of the writ petition.
The I.A. stands disposed of - List this matter on 31st October, 2023.
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2023 (12) TMI 1168
Validity of SCN - Non-supply of relied upon documents and statements - grievance is that there are certain documents which are sought to be referred by the Designated Officer in the show cause notice, namely statement of one of the transporters - HELD THAT:- It is opined that the adjudication of the show cause notice can be taken forward, by permitting the petitioner to urge all contentions in relation to the show cause notice. Also certain material as pointed out by the petitioner i.e. the statement of one of the transporters recorded during enquiry, needs to be provided to the petitioner, so that the petitioner can take appropriate plea before the adjudicating officer on the case being made out by the department against the petitioner so that, the adjudicating officer can consider such plea of the petitioner in adjudication of the show cause notice.
Accordingly, request of the petitioner to provide that statement of the transporter as made in the letter dated 17 November 2023 needs to be complied by the Adjudicating Officer, within a period of two weeks from today - The adjudicating officer, after furnishing to the petitioner the documents, shall fix a convenient date when the petitioner can be heard on the show cause notice and thereafter, proceed to pass an order in accordance with law. Let show cause notice be decided within a period of eight weeks from today.
Application disposed off.
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2023 (12) TMI 1167
Cancellation of GST registration of the premise - availment of of input tax credit without there being any corresponding movement of goods - non-application of mind - HELD THAT:- A bare reading of the provision would clearly demonstrate that the invocation of the provisions of Sub-Section 2(a) of Section 29 of the A.P.G.S.T. Act, is available only in the event of there being a determination by a competent Tribunal or Court holding that the registered dealer has in fact contravened the provisions of the Act.
It is not in dispute and it is clearly admitted by the learned Government Pleader that the petitioner firm is a going concern, implying and meaning thereby that the petitioner is also providing livelihood to others. In the event, their registration is cancelled, it would automatically result in closure of business and would sound a death knell to the productivity of the petitioner resulting in loss of livelihood, not only to the management, but also to such other persons employed by them.
The Writ Petition deserves to be allowed in part.
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2023 (12) TMI 1166
Validity of show cause notice (SCN) u/s 73 - demand based on improper Audit Report u/s 65(3) - Violation of principles of natural justice - petitioner had no ‘not less than 15 working days’ of statutory period to file the response to the SCN for Audit u/s 65 - HELD THAT:- Section 65 (3) of Andhra Pradesh Goods and Services Tax Act, 2017 clearly provides that the registered person shall be informed by way of a notice not less than fifteen working days prior to the conduct of audit in such manner as may be prescribed - Rule 101 (4) of the Rules, 2017, thus also provides that the proper officer may inform the registered person of the discrepancies noticed, if any, as observed in the audit and the said person may file his reply and the proper officer shall finalise the findings of the audit, after due consideration of the reply furnished.
In the present case, the notice does not comply with sub-section (3) inasmuch as there is no clear ‘not less than 15 working days’ time prior to the conduct of audit. The audit has been finalized on 29.09.2023 based on the revised notice, which notice though revised on 04.09.2023 itself, but was uploaded on 14.09.2023. As such the registered dealer had the information of the notice on 14.09.2023 - From that date upto 29.09.2023, there are no clear 15 working days. The findings have been finalized by the Audit Officer within the statutory notice period, without waiting for completion of the statutory notice period. The petitioner’s reply is dated 28.09.2023, which though reached on 03.10.2023, was submitted within the statutory period, and even it be taken that it could not reach in time, as it was sent on 28.09.2023, the audit could not be finalized and the audit report could not be submitted on 29.09.2023.
In the present case, what is found from perusal of the show cause notice under Section 73, is that there is a reference of the Audit Report dated 29.09.2023, and therefore, it cannot be said that in the present case the show cause notice is independent of the audit report. It is based on the audit report, which in turn is not in accordance with the statutory provisions but is in violation of the principles of natural justice as also the due procedure of law.
The impugned show cause notice under Section 73 of the Act is set aside - respondent authorities/competent authorities are directed to pass fresh order/report on the audit, after taking into consideration the petitioner’s reply dated 28.09.2023 received on 03.10.2023 and consequent there upon to proceed further in accordance with law - petition allowed in part.
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2023 (12) TMI 1138
Maintainability of petition - availability of efficacious and alternative remedy of appeal - Services of storage and warehousing of food grain - Exemption from levy of tax as per Notification No. 12/2017 – Central Tax (Rate), dated 28.06.2017 - agreement with APSCSCL for providing storage, warehousing services involving loading, unloading, stacking, packing, care, custody and security etc., of food grains - HELD THAT:- Admittedly, the petitioner has an efficacious and alternative remedy to file appeal. The said fact is also mentioned in the impugned order to the effect that an appeal lies against the impugned order before the Appellate Joint Commissioner (ST), Tirupathi.
In view of the decision in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] wherein the Hon’ble Apex Court held that the High Court ought not to have entertained the writ petition when an efficacious and alternative remedy of appeal is available to the petitioner, without expressing our opinion on the merits of the petitioner’s case, it is deemed apposite to give liberty to the petitioner to file an appeal against the impugned order.
The writ petition is disposed of giving liberty to the petitioner to file an appeal against the impugned order dated 10.07.2023 passed by the 2nd respondent before the concerned Appellate Authority within four (4) weeks from the date of receipt of a copy of this order, in which case, the Appellate Authority shall admit the appeal and after affording an opportunity of hearing to both parties, pass an appropriate order on merits in accordance with governing law and rules expeditiously.
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2023 (12) TMI 1137
Seeking release of vehicle and the goods - invoice showing different detail - petitioner was ready to pay the penalty and fine - HELD THAT:- The exigency of the situation regarding the vehicle and the goods is over and the petitioner who is a consigner will necessarily have to reply to the show cause notice whether the circumstances spelled out in the show cause notice had any substance. The show cause notice shows the reference to invoice no. 201 dated 16.08.2023 in favour of Durga Multimetals Pvt. Ltd. for a sum of Rs. 12,75,885/- had a grand total of Rs. 15,05,545/- dated 16.08.2023, the date when the vehicle was detained. The invoice which has been placed on record as Annexure P-1 would go on to show that the goods had been consigned by Rajan Trading Corporation at Rajkot to the petitioner and carries a separate detail.
The genuineness of the facts and transit would require further verification and it has specifically been mentioned that it was entrusted from M/s Rajan Trading Corporation at Rajkot and Section 16(2)(c) of the Act needs verification from the books of account. The Apex Court in THE STATE OF PUNJAB VERSUS M/S SHIV ENTERPRISES & ORS. [2023 (1) TMI 842 - SUPREME COURT] has held that it is not for this Court to entertain the writ petition against the show cause notices and has set aside the order of this Court while not interfering in the order whereby the goods had been released.
Keeping in view the settled position and the fact that the matter has to be gone into by the competent authority, the present writ petition is disposed off with liberty to the petitioner to file his response to the said notice. It is open to the authorities to take action in accordance with law.
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2023 (12) TMI 1136
Validity of recovery notice - Denial of benefit of exemption - refund claim - petitioner has discharged tax under wrong head - importing “Bulk Simulator Training Services” to the Helicopter pilots from Indian Air Force, Indian Army, Indian Navy and other defence establishments including some of the departments of the State Government - Absence of GSTIN and PAN - HELD THAT:- The second and the third respondents’ impugned orders are perused. These authorities have elaborately referred to the provisions of IGST Act as also the CGST/KGST Act and they have also referred to the details of the recipient establishments. There is obvious reference in the impugned orders to the details furnished by the petitioner after being served with the notice in GST DRC-02, but the proceedings are concluded in the premise that the petitioner has raised Invoices without mentioning the necessary details.
This Court must opine that this consideration in the peculiarities of the case will not suffice, and if it is undisputed that the recipient establishments are based in Delhi, Jharkhand and Uttar Pradesh and the petitioner’s supply [imparting of training] is exempt, significance of the same should also have been considered. This Court is of the considered opinion that, especially in the peculiarities of this case, the third respondent, to sustain the proposed demand, had to examine whether failure to furnish the details of the GSTIN, notwithstanding the other circumstances, could justify denial of exemption.
The proceedings are restored to the third respondent to reconsider the merits of the petitioner’s response in the light of this Court’s observation - the recovery notice dated 17.10.2023 is also quashed - Petition allowed in part.
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2023 (12) TMI 1102
Denial of refund of unutilised input tax credit (ITC) accumulated in respect of the Goods and Services Tax paid on inputs - zero-rated supplies - period from July 2017 to March 2018 - petitioner’s application for refund rejected on the ground that it was filed beyond the period of two years as specified under Section 54(1) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- A plain reading of Sub-section (1) of Section 54 of the CGST Act indicates that any person who is claiming a refund of tax or interest, if any, paid on the amount is entitled to make an application before the expiry of two years from the relevant date and in such form and manner as may be prescribed. The term “relevant date” has been defined in Explanation (2) to Section 54 of the CGST Act - There is no cavil that the petitioner was required to make an application for refund under Sub-section (1) of Section 54 of the CGST Act within two years of the goods leaving India or crossing its territorial frontiers.
The controversy essentially revolves around whether the petitioner did make an application within the period and/or was prevented from doing so. It is not disputed that at the material time, there was confusion regarding the implementation of the Goods and Services Tax regime which had been rolled out - In the present case, there is no dispute that the petitioner had attempted to upload its application for refund but could not do so on account of technical glitches - it is difficult to accept that the petitioner’s legitimate right to seek refund could be foreclosed on account of such technical glitches.
There is no dispute that the petitioner had attempted to file an application for refund on the GST portal twice but its application could not be uploaded on account of technical glitches. It is not disputed that the petitioner had also made a complaint and a ticket for the same was also raised.
It cannot be accepted that the petitioner’s claim for refund is required to be denied on the ground of delay - the proper officer is directed to examine the petitioner’s claim for refund and process the same, if it is found that the petitioner is entitled to the same.
Petition allowed.
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2023 (12) TMI 1101
Seeking refund claim - petitioner submitted the requisite for complying with the directions of furnishing the solvent security and requested the respondent No. 1 to refund the amount with up-to-date interest - HELD THAT:- The order passed by the appellate authority while rejecting the prayer of the respondent on an application filed under Section 54 (11) of the Act, 2017 was very clear and specifically required the proper officer to process the application of refund as per the provisions of Act/Rules provided the petitioner furnishes the solvent security as per his satisfaction.
It appears that the respondent No. 1, who had passed the original order, which came to be set aside by the appellate authority and ordered for refund so made, has been trying to somehow block the refund to be made to the petitioner. Initially, he moved an application under Section 54 (11) of the Act, 2017 which came to be rejected by the authority and direction was given to the petitioner to provide solvent security. Once solvent security was produced by the petitioner, the respondent No. 1 again, apparently not willing to refund the amount, has demanded bank guarantee from the petitioner.
The solvent security is that of a person who is entitled to/recipient of the amount. Whereas, the ‘bank guarantee’ is a guarantee given by the bank on behalf of the applicant to cover the payment obligation to a third party. As such, it cannot be said that the demand of bank guarantee by respondent No. 1 could be equated with providing solvent security in terms of the order passed under Section 54 (11) of the Act, 2017.
The action of respondent No. 1 in seeking bank guarantee from the petitioner is ex facie contrary to the directions of respondent no. 2 and, therefore, the same cannot be sustained - Petition allowed.
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2023 (12) TMI 1100
Grant of Conditional bail - Direction to surrender passport before the Trial Court and direction to not to leave India, without prior permission of this Court - HELD THAT:- In this case, Nitesh Wadhwani is also one of the accused persons, who has been granted bail by this Court with the same condition and against which, he approached the Apex Court in NITESH WADHWANI VERSUS UNION OF INDIA [2023 (4) TMI 1275 - SC ORDER], the Apex Court has permitted him to leave the country, without requirement of reporting to the Court - Against Nitesh Wadhwani also Adjudication Proceedings are initiated. He is also facing ECIR along with this applicant.
Condition No.11 (v) imposed on the applicant by this Court vide order dated 13.08.2020 (Annexure A/1) passed in Miscellaneous Criminal Case No.26653 of 2020 is hereby relaxed - Application disposed off.
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2023 (12) TMI 1099
Payment of amount to the supplier through banking channel - HELD THAT:- As the respondents are represented through their counsel, notice need not to be issued - Let this petition be listed on 07th February, 2024.
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2023 (12) TMI 1098
Cancellation of GST registration of petitioner - SCN did not specify the reasons for proposing to cancel the petitioner’s GST registration - whether the petitioner was carrying on its business from the declared principal place of business?
There is a controversy whether the petitioner had informed the visiting team as to his then current address. Whereas, the petitioner claims that he has informed the visiting team regarding his new address, the same is disputed by the respondents as there is nothing on record to substantiate the same.
HELD THAT:- It is apparent that no physical verification had been carried of the petitioner’s earlier premises during the period 14.10.2022 to 31.05.2023. Any such verification was required to be carried in accordance with the Rules, which also mandates the petitioner to be issued a notice for the same.
It cannot be accepted that the Appellate Authority could have taken a definite view of the petitioner being non- functional from its declared place of business prior to 31.05.2023. It is also apparent that there is no contest that the petitioner had furnished evidence of his leasing another premises with effect from 31.05.2023. Undisputedly, the petitioner has not been unable to upload his application for change of its earlier place of business as the petitioner’s GST registration stood suspended with effect from 25.01.2023.
The concerned official of the respondents shall visit the petitioner’s current premises (336/26, Onkar Nagar-B, Tri Nagar, Delhi-110035), within a period of one week from date, to verify whether the petitioner is occupying the same - In the event the petitioner is found occupying and operating from the aforesaid premises, the petitioner’s GST registration shall be restored immediately thereafter - The petitioner shall file the requisite application regarding shifting to his new place of business. The concerned official shall verify whether the petitioner has filed the requisite returns as well as application for updating its current place of business on the record.
Petition disposed off.
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