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GST - Case Laws
Showing 461 to 480 of 2178 Records
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2023 (10) TMI 1150
Claim of interest on Refund of accumulated Input Tax Credit due to inverted tax - amount of refund already sanctioned - HELD THAT:- The learned counsel appearing for the petitioner has handed over a photocopy of the order dated 09.10.2023 whereby the refund of ₹8,76,636/- has been sanctioned, however, with a caveat that the same is subject to the review order and to the outcome of any appeal that may be preferred by the Revenue before the Appellate Tribunal as and when the same is constituted.
Since the petitioner has prevailed before the Appellate Authority, the Order-in-Appeal dated 06.06.2023 is required to be implemented. It is seen that although the Revenue has processed the petitioner’s claim for refund of ₹8,76,636/-, no interest has been provided.
The respondent is directed to disburse interest, if any, payable to the petitioner in accordance with law within a period of two weeks from today - Petition disposed off.
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2023 (10) TMI 1149
Recovery of arrears of the tax, interest and the penalty thereon - HELD THAT:- Considering the fact that the petitioner has already paid the disputed tax as confirmed vide impugned orders dated 24.04.2023 and 08.09.2023, the Court is inclined to dispose this writ petition by giving liberty to the petitioner to file a statutory appeal before the Appellate Commissioner under Section 107 of the GST Act, 2017 within a period of 15 days from the date of receipt of a copy of this order.
Petition disposed off.
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2023 (10) TMI 1148
Condonation of delay of 7 months and 11 days in filing appeal - HELD THAT:- The appeal was filed by the petitioner with a delay of 7 months and 11 days i.e., on 12.04.2023. The impugned order passed by the first respondent dismissing the appeal of the petitioner cannot be faulted. As an officer acting under the provisions of the GST, the first respondent has to strictly apply the provisions of the Act.
Although, the petitioner has taken a stand that the order passed by the second respondent was without jurisdiction and that the petitioner came to know about the order dated 02.04.2023, the fact remains that the petitioner has pre-deposited 10% of the disputed tax along with the appeal that was filed belated before the first respondent on 12.04.2023. The petitioner came to know about the impugned order passed by the second respondent on 02.04.2022 only on 23.01.2023. After the third respondent dropped the proceedings initiated for the period between April 2018-March 2019.
The Court is inclined to dispose the writ petition by directing the first respondent to dispose of the petitioner's appeal on merits and in accordance with law without reference to the limitation, subject to the petitioner depositing another 10% of the disputed tax within a period of 30 days from the dated of receipt of a copy of this order - petition disposed off.
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2023 (10) TMI 1146
Seeking grant of bail - fraudulent availment of input tax credit - HELD THAT:- Vide order dated 19-1-2023, this Court had extended the interim bail subject to compliance of conditions mentioned therein. The petitioner’s Counsel stated that such order has been complied with. Thus, there would be no justification to keep this bail pending waiting for the proper investigation. The petitioner was granted interim protection, and during the interregnum, there is no allegation that he had intimidated the victim or victim’s family or the witnesses or that he had hampered the investigation, or despite being called to join the investigation, he did not appear before the investigator.
There would be no justification to discontinue the interim protection, and the same is made absolute subject to the petitioner complying with the terms of all the interim bail orders - Petition allowed.
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2023 (10) TMI 1076
Violation of principles of natural justice - no opportunity of personal hearing, as mandated under Section 75(4) of the Act, was given to the assessee before final order was passed - appeal dismissed as being time barred - whether period of limitation in filing the appeal stood extended pursuant to 52nd Meeting of the GST Council held on 7th October, 2023 and the benefit be passed on to the petitioner? - HELD THAT:- Section 75(4) of the Act provides for an opportunity of hearing to an assessee where a request is received in writing from the person chargeable with tax or penalty or whether adverse decision is contemplated against such person. It is not in dispute that a show cause notice was issued to the petitioner-assessee on 17.02.2022. The notice remained unattended and was not replied. The Taxing Authorities proceeded with the matter and passed order under Section 74(9) on 22.03.2022.
The decision relied upon by the assessee in case of M/s Mohan Agencies [2023 (2) TMI 933 - ALLAHABAD HIGH COURT] and M/S VISWKARMA FURNITURE VERSUS ADDITIONAL COMMISSIONER GRADE 2 AND ANOTHER [2023 (4) TMI 1262 - ALLAHABAD HIGH COURT] are distinguishable in the present set of case, as in both the cases the notice was replied by the assessee but opportunity of personal hearing was not accorded and thus the Court proceeded to quash the order and remanded back the matter for deciding afresh - In the instant case, no reply was given by the assessee, thus, provisions of Section 75(4) would not be attracted as neither any request was made for granting opportunity of hearing nor any explanation was furnished to the contents of notice.
Period of extension of limitation for filing the appeal - HELD THAT:- This Court finds that no plausible ground has been taken in the appeal filed by the assessee for condoning the delay except that the earlier counsel, to whom papers were handed over, did not file the appeal and by mistake the delay had occurred. Moreover, Section 107(4) of the Act provides that the Appellate Authority may, if satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three or six months, as the case may be, allow it to be presented within further period of one month. Once it is found that limitation period having been prescribed in the statute had expired, the Appellate Authority rightly proceeded to dismiss the appeal.
The order of the Appellate Authority needs no interference by this Court - this Court finds that no interference is required in the notice dated 17.02.2022 issued by respondent No.2 as well as consequential order passed on 22.3.2022 passed by respondent No.2 - Petition disposed off.
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2023 (10) TMI 1075
Validity of Inquiry proceedings - Physical presence for all the times by issuing summons - HELD THAT:- The purpose of summoning the petitioner for the enquiry apparently stands satisfied. It is for the respondents to proceed thereafter, in accordance with law in their wisdom if they still feel that further proceedings are to be initiated by issuance of a show cause notice. The provisions of Section 70 of the Act cannot be continued to be used for the purpose of enforcing the presence for all times to come. As noticed, the service is being provided to two Government institutions and there is sufficient record available with the respondents from the said offices. In the peculiar facts and circumstances, no useful purpose would be served to call the petitioner in pursuance of the summons issued under Section 70 of the Act hereafter.
The present writ petition disposed off, giving liberty to the respondents to proceed in accordance with law regarding issuance of show cause notice if so required and to proceed further in pursuance to the material which they have already gathered and the statements of the officials which they have already recorded.
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2023 (10) TMI 1074
Cancellation of GST registration of petitioner - denial of an opportunity either file an appeal or to revoke the cancellation of registration - HELD THAT:- The issue arising out the cancellation of registration was considered in detail by this Court in Tvl.Suguna Cut Piece Centre Vs. Appellate Deputy Commissioner [2022 (2) TMI 933 - MADRAS HIGH COURT], wherein, this Court had concluded that no useful purpose will be served by keeping the dealers/assessees outside the bounds of GST Act as they will continue to carry on the business.
The denial of an opportunity either file an appeal or to revoke the cancellation of registration was held to be a defeating move as the dealer/assessee will still continue to do business and if they are not brought into the mere scheme, the revenue will be the looser.
This Court is inclined to set aside the impugned order by directing the respondent to revive the GST registration of the petitioner with liberty to the respondent to initiate appropriate proceedings against the petitioner for imposing penalty and for recovering any tax due, to which, the petitioner may have failed to pay during the period, no returns were filed - Petition allowed.
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2023 (10) TMI 1073
Utilisation of input tax credit transitioned under Section 140 of the CGST Act, 2017 - amount not reflected in their electronic credit ledger in the portal, though the credit was allowed u/s 140 of CGST Act - HELD THAT:- Based on the verification report received from the Superintendent of CGST and Central Excise, Thandalam Range, No.42, Trunk Road, Poonamallee, Chennai – 600 056 Range Office report vide letter O.C.No.42/2023, dated 23.02.2023 the claim of Rs. 96,92,377/- as inadmissible ITC under Table 7(a)(7A) and the claim of Rs. 7,34,772/- as admissible as CGST for an amount of Rs. 7,27,158/- and inadmissible of Rs. 7,614/- under Table 7(b) of the revised TRAN-1 returns.
Petition disposed off.
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2023 (10) TMI 1072
Validity of Recovery Notice - procedural safeguarded prescribed under Rule 88C inserted in the CGST Rules, 2017 vide Notification No.26/2022 dated 26.12.2022 has not been observed - HELD THAT:- This writ petition is disposed at the time of admission by directing the respondents to issue notice that is contemplated in Form GST DRC - 01B if it has not been issued on the common portal, within a period of seven days as is contemplated under Rule 88C of the CGST Rules, 2017 inserted vide Notification No.26/2022 dated 26.12.2022.
The impugned recovery notice issued under Rule 79 of the CGST Rules, 2017 is quashed with liberty to the respondents to issue appropriate notice in Form GST DRC 01B before proceedings to recover any amount based on the difference noticed in Form GSTR1 and Form GSTR 3B.
Petition allowed.
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2023 (10) TMI 1071
Violation of principles of natural justice - non-service of notice to petitioner - deliberate evasion of notice - HELD THAT:- The arguments that no notice was served on the petitioner and therefore, the respondent should have follow the procedure under Section 169(1)(f) of the Central Goods and Services Tax (CGST) Act, 2017 cannot be countenanced as the notices have been sent on 30.04.2022 in ASMT-14 - the notice in Form GST DRC-01 has also been sent to the petitioner on 30.04.2021. This is after the petitioner evaded service of notice in ASMT-14 on 10.08.2021 and 30.12.2021.
The petitioner is not without any remedy. The petitioner can file a statutory appeal before the Appellate Authority under Section 107 of the Tamil Nadu Goods and Services Tax (TNGST) Act, 2017. The petitioner was also given an option to go back to the respondent subject to the petitioner depositing 25% of the disputed tax to prove his bona fide or file a statutory appeal.
This Writ Petition is disposed of by giving liberty to the petitioner to file a statutory appeal before the Appellate Authority in terms of Section 107 of the TNGST Act within a period of limitation prescribed under the aforesaid provision.
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2023 (10) TMI 1070
Cancellation of GST Registration - Vague SCN issued to petitioner - violation of principles of natural justice - HELD THAT:- On 06.08.2022, a notice was given by the respondent to the petitioner, it is Annexure No. 2. It is definitely vague, it require the petitioner to appear before the undersigned on 19.08.2022 at 12:57. There is no undersigned. Name and designation have not been mentioned in the notice. By reading this document, one cannot ascertain, as to who signed it? It is admitted that initially 19.08.2022 was not holiday. It was subsequently declared a holiday. The notification is Annexure No. 5 to the petition. Thereafter, it is not the case of the respondent that they issued any other notice to the petitioner of the date when the petitioner could have appeared before the respondent authority/competent officer. Simply the order, cancellation of the registration has been passed on 23.08.2022. It is in non-compliance of the provision of Section 29(2) proviso, which requires that such registration may not be cancelled unless the person has been afforded an opportunity of hearing.
This Court is of the view that the impugned order dated 23.08.2022 and the notice dated 06.08.2022 are not in accordance with law. They deserve to be set aside - Petition allowed.
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2023 (10) TMI 1043
Seeking direction on appropriate respondent to remit the amount of GST on works contract services provided on or before and after 1st July, 2017 i.e. before or after the introduction of GST Act - HELD THAT:- It appears the respondent authorities concerned have to bear the additional tax liability for execution of subsisting Government contract either awarded to the petitioner during pre-GST regime or in post-GST regime without updating the Schedule of Rates (SOR) incorporating the applicable GST while preparing Bill for payment.
This writ petition is disposed of by giving liberty to the petitioner to file appropriate representations stating all the facts and provision as referred in preceding paragraph of this judgment, before the Additional Chief Secretary, Finance Department, Government of West Bengal within four weeks from date.
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2023 (10) TMI 1042
Disallowance of Input Tax Credit - supplier/dealer had not remitted the tax collected on the supply - HELD THAT:- The question whether input tax credit to a dealer would be denied merely on the ground of non-remittance of tax by the supplier/dealer on the goods/services supplied to the assessee as the same tax is not reflected in the Form GSTR-2A, would be enough to deny the claim of input tax credit to the assessee has been considered in the DIYA AGENCIES VERSUS THE STATE TAX OFFICER, THE STATE TAX OFFICER, UNION OF INDIA, THE CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS, THE STATE OF KERALA [2023 (9) TMI 955 - KERALA HIGH COURT] where it was held that If the seller dealer (supplier) has not remitted the said amount paid by the petitioner to him, the petitioner cannot be held responsible. Whether the petitioner has paid the tax amount and the transactions between the petitioner and seller dealer are genuine are the matter on facts and evidence. The petitioner has to discharge the burden of proof regarding the remittance of tax to the seller dealer by giving evidence.
Impugned order for denial of input tax credit to the petitioner to the extent of 19,830/- is hereby set aside and the matter is remitted back to the Assessing Office to give one opportunity to the petitioner for giving evidence and documents in support of his claim for input tax credit which has been denied vide order Ext. P1(A). If on examination of the evidence and documents submitted by the petitioner, the Assessing Officer is satisfied that the claim is bonafide and genuine, the petitioner should be given credit of input tax which has been denied by the order, Ext. P1(A).
Petition disposed off by way of remand.
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2023 (10) TMI 1041
Denial of TDS claimed as Transitional Credit under Section 140 of the Tamil Nadu Goods and Services Tax (TNGST) Act, 2017 - Validity of impugned Assessment Order - writ petition is late by almost three years after the impugned Assessment Order was passed on 14.07.2020 as it has been filed only on 15.09.2023 - HELD THAT:- Although, explanations given by the petitioner in approaching this Court belatedly are not satisfactory, the issue on merits is prima facie covered in favour of the petitioner and against the revenue by the decision of the learned Single Judge of this Court in M/S. DMR CONSTRUCTIONS VERSUS THE ASSISTANT COMMISSIONER, COMMERCIAL TAX DEPARTMENT, RASIPURAM, NAMAKKAL DISTRICT. [2021 (4) TMI 261 - MADRAS HIGH COURT] - said decision has been followed by this Court in M/S. SEKAR CONSTRUCTIONS, REP. BY ITS MANAGING PARTNER - E. SEKAR VERSUS THE ASSISTANT COMMISSIONER (ST), THIRUKAZHUKUNDRAM [2021 (12) TMI 1466 - MADRAS HIGH COURT].
The Court is inclined to set aside the impugned Assessment Order, and remits the case back to the first respondent to pass a fresh order de novo on merits and in accordance with law - petition disposed off.
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2023 (10) TMI 988
Additional tax liability for execution of subsisting Government contracts either awarded in the pre-GST regime or in the post GST regime without updating the Schedule of Rates (SOR) incorporating the applicable GST - Seeking neutralization of the impact of unforeseen additional tax burden - HELD THAT:- The writ petition is disposed of by giving liberty to the petitioner to file appropriate representation, before the Additional Chief Secretary, Finance Department, Government of West Bengal within four weeks from date.
Petition disposed off.
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2023 (10) TMI 987
Direction on the respondent no. 1 and 4 to pay the liability of GST incurred on works contract executed and completed after 1st July, 2017 - contracts awarded in the pre-GST regime or post-GST regime - HELD THAT:- It appears the respondent authorities concerned have to bear the additional tax liability for execution of subsisting Government contract either awarded to the petitioner during pre-GST regime or in post-GST regime without updating the Schedule of Rates (SOR) incorporating the applicable GST while preparing Bill for payment.
This writ petition is disposed of by giving liberty to the petitioner to file appropriate representations stating all the facts and provision as referred in preceding paragraph of this judgment, before the Additional Chief Secretary, Finance Department, Government of West Bengal within four weeks from date. On receipt of such representations the Additional Chief Secretary, Finance Department shall take a final decision within four months from the date of receipt of such representations after consulting with all other relevant departments concerned.
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2023 (10) TMI 986
Payment of liability of GST incurred on works contract executed and completed after 1st July, 2017 - contracts were awarded in the pre-GST regime or post-GST regime - HELD THAT:- It appears the respondent authorities concerned have to bear the additional tax liability for execution of subsisting Government contract either awarded to the petitioners during pre-GST regime or in post-GST regime without updating the Schedule of Rates (SOR) incorporating the applicable GST while preparing Bill for payment.
This writ petition is disposed of by giving liberty to the petitioners to file appropriate representations stating all the facts and provision as referred in preceding paragraph of this judgment, before the Additional Chief Secretary, Finance Department, Government of West Bengal within four weeks from date. On receipt of such representations the Additional Chief Secretary, Finance Department shall take a final decision within four months from the date of receipt of such representations after consulting with all other relevant departments concerned.
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2023 (10) TMI 985
Demand of tax along with penalty - part B of the e-way bill accompanying with the goods, was not filled - Arguing the case beyond the pleadings - demand of tax along with penalty - HELD THAT:- Admittedly, the goods were intercepted during transportation from New Delhi to Telangana at Agra, U.P. and after verification of the documents produced, it was found that part- B of the e- way bill was left blank thereafter a show cause notice was issued to the petitioner but the petitioner has not submitted any explanation for the same. But on deposit of amount of tax along with penalty, the goods were released on 27.8.2019. The petitioner has not submitted any explanation up to the stage of this Court that under what circumstances, part B of the e-way bill was not filled - petitioner has not assigned any reason, whatsoever, for not complying the provisions under Rule 138.
On perusal of the aforesaid judgement of Apex Court in Bachhaj Nahar Vs.Nilima Mandal and another [2008 (9) TMI 967 - SUPREME COURT], it has been held that the petitioner cannot be permitted to argue the case without there being any pleading in support of his arguments.
No rebuttal / rejoinder affidavit has been filed by the petitioner controverting the said assertions made in the counter affidavit and on the other hand on 16.10.2023, a statement was made on behalf of the petitioner that the petitioner did not propose to file any rejoinder affidavit - Once the finding of fact, which has been recorded against the assessee has not been assailed in the present writ petition, the petitioner cannot be permitted to argue the case beyond the pleadings.
No interference is called for by this Court in the impugned order. The writ petition fails and is dismissed.
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2023 (10) TMI 984
Constitutional Validity of Rule 117 of the Central Goods and Service Tax Rules, 2017 - seeking permission to file FORM TRAN-1 and to allow Petitioner to carry forward credit to its electronic credit ledger under the GST regime - to allow the revision of the last return under the service tax law in order to comply with the provisions of Section 140(1) of the CGST Act - seeking to declare the para 2(1)(d)(i) (EEC) of the Service Tax Rules, 1994 substituted by the Notification No. 16/2017-ST dated 13th April, 2017 ultra vires the Finance Act, 1994 as well as Constitution of India.
HELD THAT:- These petitions ought to be disposed of with liberty to the Petitioner to file a fresh consolidated petition so that all issues of challenge intended to be urged by the Petitioner which are required to be gone into can be subject matter of one proceeding instead of having a piecemeal adjudication on both these petitions.
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2023 (10) TMI 983
Classification of goods - Aluminium Foil Container / Aluminium Foil in Roll Form and Plastic Articles - to be classified under Chapter heading 7067 or 7615? - HELD THAT:- The issue is considered by the Hon'ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS HINDALCO INDUSTRIES LTD. [2023 (6) TMI 844 - SC ORDER], where it was held that the said product is classifiable under 7615.
And the issue raised by the petitioner is settled by the Hon'ble Supreme Court in favour of the petitioner and against revenue. Therefore, this Court is of the considered opinion that the product Aluminium Foil Container is classifiable under 7615 with GST 12%. Hence the impugned order is liable to be quashed and accordingly quashed.
Petition allowed.
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