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GST - Case Laws
Showing 401 to 420 of 2178 Records
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2023 (11) TMI 204
Validity of demand notice issued under the Revenue Recovery Act - SCN not served with any assessment order - HELD THAT:- The statutory period of limitation for preferring an appeal is three months from the date of communication of the order, with a further period of one month towards condonation of delay, if any. The appellant, not having availed the alternate remedy under the statute, cannot feign ignorance of the statutory scheme under the GST Act, which accords a finality to those orders that have not been appealed against. The said statutory scheme of finality is not one that the learned Single Judge could have ignored either while considering whether or not to entertain the Writ Petition.
This settled position in law has been reiterated in Assistant Commissioner (CT) LTU, Kakinada and Others v. Glaxo Smith Kline Consumer Health Care Limited [2020 (5) TMI 149 - SUPREME COURT] as also in Oil and Natural Gas Corporation Limited v. Gujarat Energy Transmission Corporation Limited and Others [2017 (3) TMI 1628 - SUPREME COURT]. In the former decision, it was clearly held that even though the High Court can entertain a Writ petition against any order or direction passed or action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law.
Taking note of the said settled position of law and finding that all that the learned Single Judge did was to follow the said dictum while dismissing the Writ Petition, there are no reason to interfere with the judgment of the learned Single Judge - appeal dismissed.
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2023 (11) TMI 139
Violation of principles of natural justice - new SCN not served at new address which was appearing on the portal of the respondents - petitioner was not provided an opportunity of hearing - HELD THAT:- The impugned O-I-O dated 30th November 2022 has been passed without granting the petitioner an opportunity of hearing since the show cause notice was issued at the old address. Admittedly, the petitioner has informed the new address to the respondents which is evident from the registration certificate issued by the respondents. Therefore, the respondents ought to have issued the show cause notice at the new address and not at the old address. The impugned order, therefore, is passed without giving opportunity of hearing and, therefore ought to be quashed and set aside.
The Order-in-Original dated 30th November 2022 is quashed and set aside - Petition disposed off.
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2023 (11) TMI 138
Exemption from GST - educational institution - fee collected by the petitioner from its enrolled students to extend the benefit of coaching for entrance examination and other educational services would not be exempted service - HELD THAT:- All services supplied by an 'educational institution’ to its students are exempt from GST. Consideration charged by the educational institutes by way of entrance fee for conduct of entrance examination is also exempt. The exemption is wide enough to cover the amount or fee charged for admission or entrance, or amount charged for application fee for entrance, or the fee charged from prospective students for issuance of eligibility certificate to them in the process of their entrance/ admission to the educational institution. Services supplied by an educational institution by way of issuance of migration certificate to the leaving or ex-students are also covered by the exemption - such activities of educational institution are also exempt.
Accordingly, it is clarified that the amount or fee charged from prospective students for entrance or admission, or for issuance of eligibility certificate to them in the process of their entrance/admission as well as the fee charged for issuance of migration certificates by educational institutions to the leaving or ex-students is covered by exemption under Sl. No. 66 of Notification No. 12/2017-Central Tax (Rate), dated 28-6-2017.
The proceedings are remanded to the third respondent for reconsideration reserving liberty to the petitioner to file a detailed response - Appeal allowed in part.
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2023 (11) TMI 137
Input Tax Credit - denial on the ground that there is mismatch in GSTR 2A and GSTR 3B - HELD THAT:- As per the stand of the petitioner/assessee, the tax for which the petitioner claimed input tax credit is reflected in Form GSTR 2A, though with some delay, the claim of the petitioner for input tax credit which has been denied in Exhibit P1 does not appear to be correct.
To prove his case, one opportunity is granted to the petitioner to appear before the Assessing authority, within seven days from today with all relevant documents.
The present writ petition is allowed. Impugned order Exhibit P1 and notice Exhibit P2 are set aside.
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2023 (11) TMI 136
Detention of goods alongwith vehicle - Jurisdiction - exercise of powers under Section 129 of CGST Act and thereafter switching over to Section 130 and passing order thereunder without availing the petitioner the benefits of release of the goods under Section 129 - HELD THAT:- Rule, returnable on 27.9.2023.
In the facts and circumstances of the case, by way of interim relief, it is directed that the goods of the petitioner as well as vehicle bearing registration vehicle Truck No. GJ- 27-TT-7795, shall be released, provided the petitioner comply with the conditions imposed - application allowed.
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2023 (11) TMI 96
Seeking grant of bail - respondent claims that they have followed the procedure while detaining the applicant by issuance of summons - HELD THAT:- Perusal of the case diary reveals that the applicant was given summon for his appearance on different dates, therefore, at this stage, his detention cannot be termed as illegal. The facts available in case diary indicates that applicant has co-operated in the investigation by making himself available as and when summons issued against him and his statement was also recorded even in the jail - The respondent has not expressed any apprehension of flight risk for the applicant and has also not moved any application for police remand so also has not expressed any fear of tampering with the evidence or influencing the witnesses.
This application is allowed and it is directed that the applicant be released on bail on furnishing a personal bond in the sum of Rs. 10,00,000/- (Rupees Ten Lakhs only) with two local solvent sureties in the like amount to the satisfaction of the trial Court/committal Court, and subject to further conditions imposed.
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2023 (11) TMI 95
Violation of principles of natural justice - sufficient time to file effective reply to defend not provided - HELD THAT:- Admittedly, the notice dated 21.06.2023 was not served on the petitioner by way of any physical mode and was only uploaded through online Portal on 21.06.2023, which falls on Wednesday, followed two working days, and unfortunately, the petitioner could not have access through the website on those days and happened to notice the same belatedly and the moment, the petitioner noticed the said notice dated 21.06.2023, they appeared before the respondent-Department on very next working day, i.e. Monday and requested time for production of documents.
Thus, it is clear that by means of the last so-called III Opportunity of hearing, the petitioner was granted only a short span of time, i.e. less than 2 days, and which is less than 36 hours, and at any costs, it does not merit on the aspect of providing due opportunity. As per the provisions of the Act, sufficient time ought to have been granted for filing their reply, unless and until, sufficient time is granted to the petitioner, they will not be in position to file their reply in an effective manner.
This Court is of the view that the impugned orders are wholly untenable not only on the ground of total violation of principles of natural justice but also on other grounds, including failure to pass a speaking order as rightly contended by the learned counsel for the petitioner - the Writ Petition is allowed, impugned order, viz., the assessment order dated 29.06.2023 is set aside and the matter is remanded to the second respondent for fresh consideration.
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2023 (11) TMI 94
Violation of principles of natural justice - opportunity of hearing not provided - Penalty order - weight mentioned in the e-way bill was higher than the actual weight - intent to evade tax present or not - HELD THAT:- After detaining the goods, show cause notice was issued. Before the seizure order could be passed, the correct e-way bill was produced cancelling the earlier e-way bill. This Court, on various occasions, has held that if, after issuance of show cause notice and before passing the seizure order, documents are produced, no adverse inference can be drawn, but in the case in hand, the petitioner has issued two bills of the same number with correct weight and the same was produced before the authorities below.
On the said premise, the penalty and seizure order was not passed, but while rejecting the appeal, an adverse inference has been drawn that the petitioner has issued two tax invoices of the same number. Once the authorities intend to take an adverse view, the petitioner has to be informed and put to notice to rebut the same and therefore, the impugned order cannot be sustained in the eyes of law - In the instant case, the petitioner was not put to any notice or opportunity being afforded to bring material on record to contest its case, which is in clear violation of the principles of natural justice.
The matter is remanded back to to the Additional Commissioner for deciding the issue afresh after giving full opportunity of hearing to all the stake holders in accordance with law, preferably, within a period of three months from the date of production of a certified copy of this order - petition allowed by way of remand.
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2023 (11) TMI 93
Restriction on Benefit of reduction / Nil rate of penalty - Applicability of Section 73(11) or 73(8) - assessee had paid the tax within thirty days from the issue of notice along with interest - Amount of GST was collected from the others - HELD THAT:- Considering the provisions of Sub-sections 6, 8 and 9 of Section 73 of the GST Act, 2017 it is provided that if a person chargeable to tax fails to deposit the tax collected by him within a period of thirty days from the due date of the payment of the such tax, Sub-section 8 will not have any effect and such a person is liable to pay penalty.
The Assessing Authority has taken the correct view in the matter and, therefore, there are no error of law which requires interference by this Court - petition dismissed.
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2023 (11) TMI 92
Provisional attachment of bank account of petitioner - SCN was issued to the petitioner after initiation of proceedings under Section 67 of the Act - HELD THAT:- Once the proceedings were initiated under Section 67 of CGST Act, which falls under Chapter XIV of the Act, there is no infirmity in the provisional attachment of the bank account which will remain in force for a period of one year. The show cause notice is pending before the proper officer/adjudicating authority, therefore, in the interest of safeguarding the interest of the Government revenue, it is imperative that the Bank account of the petitioner remains provisionally attached till the adjudication of the case and thereafter, till the realization of the confirmed Government dues.
In the present case after the search was conducted on 08.01.2021 under Section 67 of CGST Act and thereafter bank account of the petitioner was attached under Section 83 of the Act, the power of attachment can be exercised on initiation of any proceedings under Chapter XII, XIV or XV. Since the proceedings were initiated under Section 67 of CGST Act, this procedure falls under Chapter XIV. Hence, even after amendment of Section 83 (1) of the CGST Act w.e.f 01.01.2022, the power of attachment can be exercised on initiation of any proceedings under Chapter XV, which has been done in the present case.
In the present case, the show cause notice was issued after initiation of proceedings under Section 67 of the Act and these proceedings falls under Chapter XV and, thus, there is no infirmity in attachment of the bank account of the petitioner, which would be enforced for a period of one year.
The petition is devoid of any merits and is dismissed.
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2023 (11) TMI 91
Cancellation of GST registration of petitioner - Failure to file GST returns - HELD THAT:- The petitioner has approached IREL for issuing the revised invoices after the time for filing the return got expired. The petitioner cannot be granted time on ground of spacious him approaching the IREL for issuing revised invoices. It can be seen that the petitioner has taken steps immediately on receipt of the notice dated 13.06.2023. More than three months have gone by since 13.06.2023, i.e, the date of request of the petitioner for revised invoices. Ext.P7 is the communication from IREL dated 06.09.2023.
It is found difficult to extend further time for filing the returns and restrain the authorities from taking the proceedings under section 46 of the GST Act to wait for issuance of revised invoices by IREL. However, as last opportunity, if the petitioner files returns within a period of three weeks from today, the same shall be processed in accordance with the law.
Petition disposed off.
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2023 (11) TMI 50
Validity of adjudication notice - misuse of E-way Bills by the consignor - inherent lack of jurisdiction - HELD THAT:- Once allegations of infraction of law arise, adjudication proceedings may not be interjected in exercise of extra ordinary jurisdiction of the writ court. Limited scope of challenge may be preserved for cases involving inherent lack of jurisdiction or grounds of like nature.
Reference made to certain other facts narrated in the show cause notice would also remain to be examined in the adjudication proceedings.
Accordingly, inference claimed is declined, in face of alternative statutory remedy available to the petitioner - the writ petition is dismissed.
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2023 (11) TMI 49
Exemption from GST on Education services - demand of GST on affiliation fee and inspection fee together with arrears from July, 2017 onwards - HELD THAT:- On reading of the provisions of G.S.T. law, the notification No. 11 of 2017, dated 28.06.2017, emphatically holds education service to be one which is liable to tax. The relaxations granted vide Notification No. 12 of 2017 is confined to the services rendered by the educational institutions to the students, faculty and staff. It also grants exemption in respect of collection of fees relating to entrance examination and other fees chargeable from the students for admission or any such purpose.
The fact that the Notification No. 11 of 2017, dated 28.06.2017, has a broader subject when it prescribes education service and Notification No. 12 of 2017, dated 28.06.2017, specifically enumerates specific services which stand exempted and inspection and affiliation fees not reflected in the Notification No. 12 of 2017, dated 28.06.2017, the relief sought for by the petitioners or the issue raised by the petitioners would not be sustainable - Notification No. 12 of 2017, dated 28.06.2017, which stood amended further vide Notification No. 2 of 2018, dated 25.01.2018, specifically enumerates the specific nature of service rendered by the educational institutions which would stand exempted. Inspection and affiliation fees however is not part of the said notification granting exemption.
There are no substance in the contentions raised by the learned counsel for the petitioners - petition dismissed.
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2023 (10) TMI 1515
Violation of principles of natural justice - denial of fair opportunity of personal hearing before the Assessing Authority, as required under Section 75(4) of the U.P. GST Act, 2017 - validity of adverse assessment order - 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. Here, it is noted, the impugned order itself has been passed on 26.12.2022. 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.
Not only such opportunity would ensure observance of rules of natural of justice but it would allow the authority to pass appropriate and reasoned order as may serve the interest of justice and allow a better appreciation to arise at the next/appeal stage, if required.
The matter is remitted to the respondent no.2/Deputy Commissioner, State Tax, Sector-1, Raebareli 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 (10) TMI 1511
Cancellation of registration of petitoner - order does not show any reason or even raised an allegation against the petitioner of not having filed returns for a continuous period of six months - HELD THAT:- The order has to be interfered with. The order does not clearly indicate the failure to file the returns nor does it indicate the explanation stated in the reply said to have been filed dated 15.02.2023.
Annexure-1 order set aside especially on the undertaking made by the petitioner before Court that the entire tax, interest and penalty would be paid. If the petitioner pays the amount of tax, interest and penalty and also files the returns for the period for which the default occurred within a period of one month from today, the registration shall be restored and if not the registration shall stand cancelled.
Petition allowed.
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2023 (10) TMI 1495
Maintainability of petition - availability of statutory remedy of appeal under Section 107 of U.P. Goods and Service Tax Act, 2017 - SCN was issued - petitioner did not respond - HELD THAT:- Without entering into the issue as to whether the show cause notice was served and the petitioner was given opportunity of hearing or not, it is opined that the said ground being urged by the learned counsel for the petitioner in these proceedings can very well be taken up before the Appellate Authority by preferring appeal under Section 107 of U.P. Goods and Service Tax Act, 2017.
It is not inclined to entertain this writ petition - petition disposed off.
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2023 (10) TMI 1493
Direction to respondent to renew the GST registration of the petitioner based on the representation dated 07.08.2023 - HELD THAT:- Considering the facts and circumstances of the case, this Court is inclined to direct the respondent to consider the representation made by the petitioner dated 07.08.2023 and dispose of the same on merits within a period of four weeks from the date of receipt of copy of this order.
Petition disposed off.
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2023 (10) TMI 1491
Seeking to quash specific notices and communications (Exhibit P10 and P12) issued by the third respondent - HELD THAT:- The present writ petition is disposed of with a direction to the petitioner to deposit arrears of tax in six equal monthly installments, the first of which shall be paid on or before 10.11.2023, and the other installments shall be paid on or before 10th of every subsequent five months. If the petitioner commits default in making payment of any of the installments, the respondents can initiate proceedings to collect the same.
Petition dismissed.
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2023 (10) TMI 1490
Rejection of appeal on the ground of delay - invocation of extraordinary jurisdiction under Article 226 of the Constitution - HELD THAT:- As soon as the recommendation is given effect to, the petitioner/assessee gets a right to seek for restoration of the appeal filed before the first Appellate Authority. Reserving such liberty, if the recommendation is brought out as a notification or circular, the writ petition would stand dismissed.
It is made clear that the dismissal of the writ petition would not stand in the way of the petitioner seeking for restoration of the appeal or filing a fresh appeal, if and when the recommendation of the G.S.T. Council is brought out as notification/ circular/ amendment.
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2023 (10) TMI 1489
Dismissal of appeal for non-prosecution - ground stated of mismatch being in existence is a cursory one without any discussion of the facts and figures - HELD THAT:- Looking at the provisions of the Bihar Goods and Services Tax Act especially sub-sections (8), (9), (10), (11) and (12) of Section 107 of the Act, that the Appellate Authority has a duty and an obligation under the statute to look into the merits of the matter and also examine the grounds raised by the appellant, even if there is no presence recorded of the appellant before the Appellate Authority and decide the issue on merits. The Appellate Authority by dismissing the appeal without any reasoning and also finding the appellant having not presented the appeal properly would be abdicating its powers especially looking at the provisions where the Appellate Authority has been empowered to conduct such further enquiry as found necessary to decide the appeal, which decision also shall be on the points raised.
The appellate order set aside - restoration of appeal before the Appellate Authority directed.
Petition allowed.
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9911796707
