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GST - Case Laws
Showing 481 to 500 of 2178 Records
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2023 (10) TMI 982
Violation of principles of natural justice - contention of the respondent is that the petitioner has not responded the notice - HELD THAT:- After receipt of the impugned order only, the petitioner came to know that the notice was sent to e-Mail I.D. and the said e-Mail I.D. is not belonging to the petitioner. Therefore, this Court is of the considered opinion that there it is clear violation of principles of natural justice.
The impugned order, dated 27.04.2022, is hereby quashed. The petitioner is directed to submit his objections, within a period of three weeks from the date of receipt of a copy of the order - Petition allowed.
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2023 (10) TMI 948
Violation of principles of natural justice - opportunity of hearing not provided - Doctrine of merger - original order does not get merged with the appellate order - appeal dismissed as being beyond the prescribed period of limitation - HELD THAT:- From the perusal of the records, it is clear that after the petitioner had sought adjournment, a reminder notice was sent to the petitioner on 10.02.2021 wherein the date by which the reply was to be submitted was indicated as 17.04.2021, however, in the column of date of personal hearing, the time of personal hearing and venue of personal hearing, the words 'NA' were transcribed.
From the order impugned passed under section 74 also, it transpires that no opportunity of hearing was granted to the petitioner.
The order passed against the petitioner under section 74 is quashed. As the main order has been quashed, the order dated 26.12.2022 also losses its efficacy and is quashed. The respondent no.3 may pass a fresh order after giving an opportunity of hearing in accordance with law.
Petition allowed.
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2023 (10) TMI 947
Wrong availment of input tax credit - demand of tax alongwith penalty - HELD THAT:- Admittedly, the concept of input tax credit has been introduced in the tax regime prior to G.S.T. which is being followed in the current regime also. The scheme of input tax credit is being introduced with an object to avoid cascading effect of tax. The purchasing dealer can avail the input tax credit on tax paid on its purchase whereas manufacturer can avail the same on purchase of its raw material used for manufacturing or selling of its final product which will avoid double taxation. The benefit of concession / I.T.C. under the tax statute can be availed only on fulfilment of certain conditions or restrictions as stipulated under the Act. In the event of breach of any of the conditions as enumerated under the Act, no benefit can be conferred to the dealer.
On brief reading of the sections 16 and 74, it is evident that in the event of wrong availment of input tax credit, the proceedings can be initiated against the registered person or registered dealer but at the same time, restrictions has been imposed upon the authorities that without putting notice to the dealer, no adjudication proceeding can be initiated.
In the case in hand, the petitioner has only brought on record the tax invoices, e-way bills, GR and payment through banking channel, but no such details such as payment of freight charges, acknowledgement of taking delivery of goods, toll receipts and payment thereof has been provided. Thus in the absence of these documents, the actual physical movement of goods and genuineness of transportation as well as transaction cannot be established and in such circumstances, further no proof of filing of GSTR 2 A has been brought on record, the proceeding has rightly been initiated against the petitioner.
The Apex Court in the case of State of Karnataka Vs. M/s Ecom Gill Coffee Trading Private Limited [023 (3) TMI 533 - SUPREME COURT] while considering the pari materia of section 70 of the Karnataka Value Added Tax Act, 2003, where the burden was upon the dealer to prove beyond doubt its claim of exemption and deduction of ITC, Hon’ble the Apex Court has held that primarily burden of proof for claiming the input tax credit is upon the dealer to furnish the details of selling dealer, vehicle number, payment of freight charges, acknowledgement of taking delivery of goods, tax invoices and payment particulars etc. to prove and establish the actual physical movement of the goods. Further by submitting tax invoice, e-way bill, GR or payment details is not sufficient.
Similarly, this Court in the case of the Commissioner Commercial Tax Vs. M/s Foods Ltd. [2023 (8) TMI 1130 - ALLAHABAD HIGH COURT] has held that the primary responsibility of claiming the benefit is upon the dealer to prove and establish the actual physical movement of goods, genuineness of transactions, etc. and if the dealer fails to prove the actual physical movement of goods, the benefit cannot be granted.
Thus, no interference is called for by this Court in the impugned orders - petition dismissed.
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2023 (10) TMI 946
Violation of principles of natural justice - cancellation of GST registration - no cogent reason recorded for such cancellation - HELD THAT:- From the perusal of the impugned order, it transpires that the same has been passed without recording any cogent reason for cancelling the GST registration of the petitioner no.3 and appellate authority has also dismissed the appeal filed by the petitioner (s) summarily without assigning any reason.
In the recent judgment of this Court passed in the case of Namo Narayan Singh [2023 (10) TMI 482 - ALLAHABAD HIGH COURT], on an identical sets of fact held that Reason is the heart beat of every conclusion. In the absence of reasons the order becomes lifeless. Non recording of reasons renders the order to be violative of principles of natural justice.
Looking to the facts and on perusal of the above-quoted judgment, it is clear that the facts of the present case is squarely covered in the aforesaid judgment, hence the impugned orders cannot sustain.
The matter is remitted back to the the first appellate authority who shall pass a fresh reasoned and speaking order in accordance with law - petition allowed by way of remand.
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2023 (10) TMI 945
Claiming ITC without authorization - allegation founded on the basis that the firm, based on whose supplies the ITC was availed, was not in existence - HELD THAT:- On perusal of the records, it is clearly revealed that along with the memo of appeal, the petitioner had filed the documents to demonstrate that the transactions based upon which the ITC was claimed, were through the banking channels and the documents were duly uploaded on the GST portal. None of the said aspect has been considered in the appellate order, which is impugned in the present writ petition.
It is settled that a non speaking order is violative of Article 14 of the Constitution of India, thus, on the limited ground of not considering any material whatsoever and the order being a non-speaking order, the order dated 04.07.2023 is quashed.
The matter is remanded back to the appellate authority to pass an order on the appeal of the petitioner after giving opportunity of hearing and considering the material on record, in accordance with law - Petition disposed off by way of remand.
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2023 (10) TMI 944
Freezing of Bank Accounts of petitioner - Opportunity to file objections - HELD THAT:- It will be appropriate for the Petitioners to take recourse to the provisions of sub-rule (5) of Rule 159 of the Central Goods And Service Tax Rules (CGST Rules) whereby an opportunity is available to the Petitioners to file its objections in regard to the attachment of the Petitioner’s/Assessee's property.
In somewhat similar circumstances, a similar course of action is permitted in the case of ASHOK KUMAR VISHWAKARMA VERSUS UNION OF INDIA & ORS. [2023 (10) TMI 715 - BOMBAY HIGH COURT] where it has been held that The appropriate remedy for the Petitioner would be to invoke sub-rule (5) by raising an objection to the orders of attachment in question as the rule itself would permit. Thus, considering such stage of the proceedings, in the facts and circumstances of the case, the discretionary jurisdiction under Article 226 of the Constitution of India not exercised to interfere in the impugned attachment orders.
This petition is disposed off permitting the Petitioners to make a representation/raise an objection against the attachment as permitted by sub-rule (5) of Rule 159 of the CGST Rules.
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2023 (10) TMI 943
Principles of natural justice - denial of opportunity of oral hearing before the Assessing Authority - 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 matter is remitted to the respondent no.2/Deputy Commissioner, State Tax, Sector-17, Lucknow 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 942
Validity of proceedings u/s 129 of CGST Act - mis-declaration in E-way bill - processed White Red Betel was being transported, whereas the E-waybills and E-invoices was shown of Dried Areca Nuts and value of both the seized articles were different.
The petitioner submits that once the notice itself may be quashed, goods may not be treated undervalued and the authority is neither the Assessing Authority nor the Adjudicating Authority to impose tax and, therefore, the order impugned is bad in the eyes of law and same may be quashed.
HELD THAT:- The matter is remitted to respondent no.2 to pass orders afresh under Section 129(1)(a) of the State Goods and Service Tax Act, 2017 within a period of one week from the date of receipt of certified copy of this order, after affording due opportunity of hearing to the petitioner.
Petition disposed off.
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2023 (10) TMI 941
Cancellation of GST registration of petitioner - Failure to furnish returns for a continuous period of six months - order passed without application of mind - Violation of principles of natural justice - HELD THAT:- In the present case from the perusal of the order dated 23.12.2022, clearly there is no reason ascribed to take such a harsh action of cancellation of registration. In view of the order being without any application of mind, the same does not satisfy the test of Article 14 of the Constitution of India, as such, the impugned order dated 23.12.2022 (Annexure - 3) is set aside.
The petition is accordingly allowed.
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2023 (10) TMI 940
Cancellation of GST registration of petitioner with retrospective effect - petitioner had denied that it was involved in any fraud or made any misstatement and suppressed any facts - No opportunity to object to cancellation of his GST registration provided to petitioner - Violation of principles of natural justice - HELD THAT:- The impugned order is also not informed by reason, it merely states that the reply submitted by the petitioner was unsatisfactory. Neither the Show Cause Notice nor the impugned order provides any clue as to why the petitioner’s GST registration was cancelled. The Show Cause Notice and the impugned order are liable to be set aside. It is also relevant to note that the Show Cause Notice did not propose that the petitioner’s registration would be cancelled from the date it was granted. Thus, the petitioner had no opportunity to object to cancellation of his GST registration with retrospective effect.
The impugned order and the Show Cause Notice are set aside - Petition allowed.
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2023 (10) TMI 939
Validity of demand raised u/s 74 of the GST Act - Opportunity of hearing not provided - Violation of principles of natural justice.
It is alleged that the SCN contains a stipulation, 'NA' in the place of date of hearing which is required to be specified in the show cause notice.
HELD THAT:- Learned counsel appearing for the Department does not dispute the assertion that issues raised in this writ petition are squarely covered by the adjudication made in MOHINI TRADERS [2023 (6) TMI 531 - ALLAHABAD HIGH COURT], where it was held that 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.
This petition is disposed off.
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2023 (10) TMI 938
Cancellation of GST registration of petitioner - HELD THAT:- Sri Ankur Agrawal for the Department does not dispute the fact that the factual issues raised in this petition are similar to the petition already decided by this Court in M/S SAKSHI ENTERPRISES VERSUS STATE OF U.P. AND ANOTHER [2023 (7) TMI 1306 - ALLAHABAD HIGH COURT ] where it was held that petition is disposed of permitting the petitioner to approach before the respondent No. 2 and to obtain the fresh notice, within 15 days from today and in turn, petitioner would file the reply to the fresh notice within the stipulated time fixed by the respondent No. 2.
This petition also stands disposed of in terms of the order passed by this Court on 31.07.2023.
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2023 (10) TMI 937
Refund of Input Tax Credit - Rejection on the ground that the petitioner’s application was filed beyond the period as stipulated under Section 54(1) of the Central Goods & Services Tax Act, 2017 - HELD THAT:- Section 54(1) of the CGST Act stipulates that an application for refund may be filed within the period of two years from the relevant date. The expression ‘relevant date’ is defined in Explanation (2) to Section 54 of the CGST Act - In the present case, the statement filed by the petitioner clearly indicates the date on the shipping bills and the invoices. Thus, there is no ambiguity for computing the period of limitation in reference to the relevant date.
The respondents have filed the counter affidavit, however, the same is not on record - the respondents are directed to process the petitioner’s claim for refund along with applicable interest, if any, within a period of two weeks from today - Petition allowed.
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2023 (10) TMI 936
Availment of Input Credit - Denial of benefit of the Circular dated 2.1.2023 - Respondent submitted that the benefit of circular dated 2.1.2023 cannot be accorded to the petitioner as the matter has already been adjudicated up to the first stage of first appellate authority - HELD THAT:- On perusal of the circular dated 2.1.2023 with regard to the input availment in FORM-3B clearly shows that the supplier has to file GSTR-1 as well as in the return of GSTR-3B for the tax period but he has to declare the supply but if he has declared the supply with the wrong GSTIN of the recipient in the Form of GSTR-1, in such cases, difference in GSTR claimed by the registered person in his return in form of GSTR- 3B and that available in form of GSTR-2A may be only by the procedure provided in para 4 in the aforesaid circular. Any circular or notification issued during the pendency of the litigation, the benefit cannot be denied.
The Hon'ble Apex Court in the case of Mathew M. Thomas and others Vs. Commissioners of Income Tax, [1999 (2) TMI 7 - SUPREME COURT] has held that if a a benevolent Circular has come into existence during the pendency of an appeal, the benefit of the same should not be denied to the assess.
Further, adopting the similar view, this Court in the case of Commissioner of Sales Tax Vs. S/s. Agrawal Rolling Mills, Mirzapur, [2003 (4) TMI 550 - ALLAHABAD HIGH COURT] has held that the benefit of circular, which came into existence during the pendency of the appeal, even up to the stage of revision, the benefit of same cannot be denied to the assessee.
The matters are remanded back to the respondent no.2 to pass a fresh order within a period of one month from the date of production of certified copy of this order taking into consideration the Circular dated 2.1.2023 as well as judgments relied upon by the counsel for the petitioner in support of his contention of his cases - petition allowed by way of remand.
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2023 (10) TMI 935
Issuance of summons for procuring the presence of the noticee as a witness in the proceedings initiated - HELD THAT:- As has been held by the Division Bench of the High Court of Delhi [2022 (1) TMI 554 - DELHI HIGH COURT], Section 6 of SGST or UGST Act or the Circular does not reckon all situations, which would arise in the course of an investigation. As has been rightly pointed out by the learned ASG and the learned Government Advocate in the present case, the investigation is not against the petitioner herein. The investigation by the State Tax Authority in Maharashtra is against one M/s. Vedam Enterprises, who is an assessee within the State of Maharashtra, whose registration has been found to be fictitious. The investigation initiated by the State Tax Authority within Bihar, at Patna is with respect to an assessee M/s. Arti Plastics, who is registered within the State of Bihar. The investigation reveals that both the said assessees, one registered in Maharashtra and the other in Bihar had dealings between themselves, based on which input tax credit was claimed by the assessee in Bihar.
There are absolutely no application of the Section 6(2)(b) or the Circular and the petitioner should appear before the respective tax authorities, pursuant to the summons issued under Section 70 of the respective enactments.
Considering the totality of the circumstances the State Tax authority within the State of Maharashtra are directed to issue a notice for appearance some time in the month of December, 2023 and the State Tax Authority in Patna to issue a notice some time in the month of November, 2023. If any documents are requisitioned, the petitioner would be entitled to produce it before the authority, who first requisitions it and such authority shall enable authenticated copies to be issued, at the expense of the petitioner, for production before the other authority, if so required.
Petition dismissed.
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2023 (10) TMI 934
Refund of Integrated Goods and Service Tax - telecom services provided by the petitioner to inbound subscribers of FTOs - Export of services or not - claims preferred were beyond the period of two years from the relevant dates and therefore, were barred by limitation.
Whether the claims made by the petitioner are barred by limitation? - HELD THAT:- In the present case, the petitioner claims that it had received payments in all cases after the invoices were raised. Thus, the date on which payments had been received from FTOs would be the relevant date for the purpose limitation under Section 54(1) of the CGST Act. The petitioner had also furnished a tabular statement clearly indicating the invoices raised and the dates of receipt of payments. However, the authorities had rejected the claim by mentioning that payments in respect of some of the invoices were received in advance. It is material to note that there is no specific reference to the invoices in respect of which payments are held to have been received in advance, that is, prior to the date of their issuance - Undisputedly, in case the payments had been received after the invoices were raised, the date on receipt of payments would be relevant for the purposes of computing the limitation for filing claims for refund.
Whether the services in question constitute ‘export of services’ within the meaning of Section 2(6) of the IGST Act? - HELD THAT:- It is apparent that the provisions for ascertaining the place of supply of services under Rule 6A of the ST Rules are similar to Section 2(6) of the IGST Act inasmuch as the services will be treated as export of services when (a) the provider of service is located in the taxable territory, (b) the recipient of the service is located outside India, and (d) the place of provision of the service is outside India. There is no cavil that the decisions rendered on the question of export of services in the context of Rule 3 of the Export of Services Rules, 2005 are also applicable to the controversy in question.
The present petition is allowed and the respondents are directed to refund the amounts as claimed by the petitioner - Application disposed off.
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2023 (10) TMI 933
Maintainability of petition - availability of alternative remedy - Input Tax Credit denied - availment and utilisation of ITC by the petitioner against invoices issued without actual receipt of goods - inadmissibility in terms of Section 16 of the CGST Act - HELD THAT:- The Assessing Authority has passed a detailed order considering the objections/reply of the petitioner filed to the Show Cause and has returned the finding that the petitioner has availed the ITC and further utilized the same against tax invoices issued by suppliers without actual receipt of the goods and has accordingly held the petitioner to be liable. There is no dispute about the legal position that availability of an alternative remedy is not an absolute bar for exercise of jurisdiction under Article 226 of the Constitution of India, where there is clear violation of the procedure established by law or in violation of the elementary principles of natural justice
However in the case at hand the impugned order is a reasoned and speaking order passed after affording opportunity of hearing to the petitioner and considering it objection/reply.
The Apex Court recently in the case of THE STATE OF KARNATAKA VERSUS M/S ECOM GILL COFFEE TRADING PRIVATE LIMITED [2023 (3) TMI 533 - SUPREME COURT] while dealing with similar issue as raised in the instant writ petition observed that ITC can be claimed only on genuine transactions of sale and purchase. For claiming ITC, genuineness of the transaction and actual physical movement of the goods are the sine qua non and the aforesaid can be proved only by furnishing the name and address of the selling dealer, details of the vehicle which has delivered the goods, payment of freight charges, acknowledgement of taking delivery of goods, tax invoices and payment particulars etc.
According to the dictum of the Apex Court, the purchasing dealer, over and above the invoices and the particulars of payments, has to produce further material like the name and address of the selling dealer, details of the vehicles which has delivered the goods, payment of fright charges, acknowledgement of taking delivery of goods including actual physical movement of the goods, alleged to have been purchased from the concerned dealers.
This is not a fit case where the efficacious alternative remedy available to the petitioner can be bye passed - the writ petition is dismissed on the ground of alternative remedy.
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2023 (10) TMI 932
Cancellation of GST registration of petitioner - non-conduct of any business from the declared place of business - issuance of invoice or bill without supply of goods or services - Right of cross-examination allowed - no violation of principles of natural justice - HELD THAT:- In the present case, the petitioner was afforded an opportunity to support his case. However, he did not produce convincing proof that he was, in fact carrying on any business from the declared place of his business.
The Supreme Court in the case of State of Kerala v K.T. Shaduli and Nallakandy Yusuff [1977 (3) TMI 160 - SUPREME COURT] opined that the opportunity to prove the correctness or completeness of return would carry the right to examine the witnesses and the right to cross-examine the witnesses examined by the Sales Tax Officer.
In the present case, the landlord’s statement was taken into account wherein the landlord stated that Room No. IX/205 is owned by him and was rented to the petitioner for conducting iron and steel business from 2012 to May 2017. However, after May 2017, no business activity was carried out from there, and the building was rented out to another person since 18th August 2017. The petitioner did not file any document for the change of his business place nor he supported his claim that he was running the business from the given address by producing any documentary or oral evidence. The enquiry conducted by the competent officer is not a trial, but it is summary proceedings to find out whether the registered dealer is conducting any business from his declared place of business or not.
There has been no infraction of principle of natural justice or the authority has acted arbitrarily as contended or otherwise.
Petition dismissed.
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2023 (10) TMI 931
Violation of principles of natural justice - jurisdiction - non-issuance of pre show-cause notice consultation - non-conducting of pre-consultation hearing - HELD THAT:- Admittedly, on an earlier occasion, when show-cause notice was issued by the Assistant Commissioner of Central Tax, petitioner filed W.P.No.15871 of 2023, primarily on the ground of jurisdiction. The said writ petition was disposed of in NEKTAR THERAPEUTICS (INDIA) PVT LTD VERSUS UNION OF INDIA [2023 (6) TMI 1318 - TELANGANA HIGH COURT], wherein, the Hon’ble Division Bench of this Court categorically made it clear that if proper officer intends to issue fresh show-cause notice, he shall hold consultation with the petitioner. Consequently, fresh show-cause notice dated 21.07.2023 was issued by the Additional Commissioner of Central Tax i.e., 5th respondent, who according to the petitioner, is proper officer. Therefore, the principal ground agitated by the petitioner that the officer lacks jurisdiction is not available to the petitioner.
Secondly, the Hon’ble Division Bench had directed the respondents 2 to 6 that if the respondents intend to issue fresh show-cause notice, the proper officer shall hold pre show-cause consultation. From the material placed before this Court, the proper officer had issued pre show-cause consultation notices dated 09.02.2023 and 12.07.2023 in compliance with the directions given by this Court in NEKTAR THERAPEUTICS (INDIA) PVT LTD.
The writ petition is devoid of merits and thus, liable to be and is accordingly dismissed.
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2023 (10) TMI 930
Violation of principles of natural justice - notices in Form GST DRC-01A and Form GST DRC-01 were not issued to the petitioner prior to the passing of the impugned Assessment Order - HELD THAT:- This Writ Petition is disposed of at the time of admission by giving liberty to the petitioner to file a statutory appeal within a period of thirty days from the date of receipt of a copy of this order, considering the fact that the disputed tax has also been recovered from the petitioner - statutory appeal shall be filed by the petitioner within a period of thirty days from the date of receipt of a copy of this order. The Appellate Authority shall dispose the appeal on merits and in accordance with law within a period of six months thereafter provided, such an appeal is filed by the petitioner within such time.
Petition disposed off.
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