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GST - Case Laws
Showing 81 to 100 of 2178 Records
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2023 (12) TMI 940
Classification of goods - rate of GST - Stadiometer being diagnostic medical equipment - Infantometer being diagnostic medical equipment - taxable at 12% GST Slab? - HELD THAT:- Infantometer as the name suggests, is used for purpose of measuring height/length of infants. As per Wiktionary definition, Infantometer is an instrument for measuring the size of young children. The product is described as useful for research, clinical and hospital purpose - Stadiometer is described as piece of medical equipment used for measuring human height. It is used in routine medical examination and for clinical tests and experiments - The above definitions make it clear that both these instruments, the Stadiometer and the Infantometer have clinical used and are described as diagnostic instruments and apparatus.
Stadiometer is diagnostic medical equipment and is covered under tariff item 90189019 (other category) with rate of tax being 12% - Infantometer is diagnostic medical equipment and is covered under tariff item 90189019 (other category) with rate of tax being 12%.
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2023 (12) TMI 939
Liability of GST - Whether Purchase of raw cotton from Kacha Arhtiya who is a registered dealer constitutes a purchase from agriculturist - Reverse Charge Mechanism in view of section 9(3) of CGST/PGST Act, 2017 - HELD THAT:- To understand whether the Kacha Arhtia is liable to pay GST under reverse charge basis, it is pertinent to go through the Circular No. 57/31/2018-GST issued vide CBEC-20/16/4/2018-GST dated 4th September, 2018(to be read with the corrigendum dated 05th November, 2018) which has explained the Scope of Principal-Agent relationship in the context of Schedule-I of the CGST Act - As clarified vide above circular, the crucial component for covering a person within the ambit of the term 'agent', as contained in sub-Section (5) of Section 2 of the CGST Act and PGST Act, 2017, is corresponding to the representative character identified in the definition of agent under the Indian Contract Act, 1872. The said circular further clarifies that a key ingredient for determining whether the agent is wearing the representative hat and is supplying or receiving goods on behalf of the principal would be whether invoice for further supply or goods on behalf of the principal is being issued by the agent or not.
Since the scope of supply under the GST Act also covers the activities specified in schedule-I by or undertaken through an agent, the key ingredient for determining relationship would be whether the invoice for the further supply of goods on behalf of the principal is being issued by agent or not. In other words, the crucial point is whether or not the agent has the authority to pass on the title of the goods on behalf of the principal.
As soon as the auction for a lot is over, the auctioneer (Market officer) shall fill in the particulars in a book to be maintained in Form-H and shall secure the signatures of both the buyer and the seller or their respective representatives, whoever may be present at the spot. H register will have all details of date, Kacha Arhtia, name and address of seller, description of produce, quantity, rate, name of buyer. The responsibility of paying the market fee as prescribed under APMC Act and Rules shall be of the buyer in terms of provision of APMC Act and Rules and M/s Bansal Industries being a buyer in instant case, is liable to pay such fee and not the Kacha Arhtia or Agriculturist. Delivery of agricultural produce is made only after the Kacha Arhtia or the buyer gives to the seller a sale voucher in Form J clearly mentioning the details of the buyer and other details of the produce. On delivery of agricultural produce to a buyer, the Kacha Arhtia executes a memorandum in Form-I and delivers the same to the buyer on the same day or the following day clearly mentioning the name of the buyer corresponding to the Form-J issued to the seller.
Kacha Arhtia does not fall under the Scenario 4 given in the CBIC Circular No. 57/31/2018-GST dated 04.09.2018 cited by M/s Bansal Industries in their supports as at no time during the process of sale-purchase of agricultural goods in the grain markets does the Kacha Arhtia have the authority to pass or receive the title of the goods on behalf of the agriculturist. At all times during the purchase of raw cotton at the Mandi, the title of the agricultural produce and the authority to pass on the title of the agricultural produce is vested exclusively with the agriculturist himself. During the auction, it is the agriculturist who has to agree to the price offered by the bidders and thereafter when the delivery of goods is to be made to the successful bidder, i.e. buyer, at that point also the consent of the agriculturist is required before the goods can be transported to the buyer's premises - the provisions of APMC Rules also provide an opportunity to the buyer to remit money to the seller either directly or via the Kacha Arhtia. It is in fact only as an option of convenience wherein the money is transmitted via Kacha Arhtia after deduction of their commission etc which is the regular market practice.
M/s Bansal Industries i.e. the applicant is the recipient of supply of goods(raw cotton) by an agriculturist and not the Kacha Arhtia. As such, the applicant is liable to pay GST under reverse charge basis being a registered person in terms of Notification No. 13/2017- Central Tax (Rate) dated 28th June 2017 as amended vide Notification No. 43/2017-Central Tax (Rate) dated 14th November 2017 read with corresponding Notifications issued under Punjab State GST Act 2017.
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2023 (12) TMI 938
Government Entity or not - Urban Improvement Trust (UIT) Kota - constructing a Community Hall by the applicant at Bapu Nagar Residential Scheme, Kota, in accordance of works contract allotted by UIT Kota - taxability under GST law - paid tax shall be refunded to the assessee along with appropriate interest or not - Applicability of change in tax rate during continuing of a works contract, where the works contract has pre-fixed terms and conditions including total tender rate.
Whether Urban Improvement Trust (UIT) Kota is “Government Entity”? - HELD THAT:- UIT Kota is established by Govt, of Rajasthan (State Legislature) in 1970 under The Rajasthan Urban improvement Act 1959 and it is established by Govt, of Rajasthan with 90% or more participation by way of equity or control to carry out a function entrusted by the State Government. Thus UIT Kota falls under the category of “Government Entity”.
Whether constructing a Community Hall by the applicant at Bapu Nagar Residential Scheme, Kota, in accordance of works contract allotted by UIT Kota, is a taxable service under GST law and if yes, then determination of the liability to pay tax after applicable exemption and deductions? - HELD THAT:- The applicant is liable to pay GST on supply of this services and there no exemption and deduction is available to applicant in respect of aforesaid service provided to UIT Kota.
If no, then whether the paid tax shall be refunded to the assessee along with appropriate interest? - HELD THAT:- This question need not be answered.
Applicability of change in tax rate during continuing of a works contract, where the works contract has pre-fixed terms and conditions including total tender rate - HELD THAT:- The benefit of the reduced tax rate, i.e., 12% instead of 18% on works contract supplied to a Governmental Authority or a Government Entity regarding the works contract services mentioned in the corresponding entry, stands discontinued with effect from 01.01.2022. The revised rate applicable for the said supply is 18%. The revised rate is applicable from the 01st day of January, 2022. In case, where the time of supply of the work completed is on or before 31st December, 2021, GST at pre-revised rate is applicable and in case where the time of supply of the work completed is on or after, 01st day of January, 2022, GST at the revised rate is applicable.
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2023 (12) TMI 937
Stage of payment of GST - Time of supply - delayed payment of interest that is not still paid by purchaser of goods - time of demand of interest/debit of interest in the account of purchaser of goods - Requirement to issue fresh invoice of interest for delayed payment be issued in spite of non-receipt of interest? - GST payable on accrual basis or not?
HELD THAT:-As per Section 15 of CGST Act, 2017, 'The value of a supply of goods or services or both shall be the transaction value, which is the price actually paid or payable for the said supply of goods or services or both where the supplier and the recipient of the supply are not related and the price is the sole consideration for the supply Further, as per Section 15(2) of CSGT Act, 2017, lists out the compulsory inclusions in the value of supply wherein as per Section 15(2)(d) it has been clarified that - 'interest or late fee or penalty for delayed payment of any consideration for any supply', thus GST provisions have clearly outlined Interest will be a part of value of supply.
Sec. 12(6) The time of supply to the extent it relates to an addition in the value of supply by way of interest, late fee or penalty for delayed payment of any consideration shall be the date on which the supplier receives such addition in value - Further applicant may raise debit note for interest on delayed payment under Section 34 of Act.
GST on interest recovered is to be paid on the date on which the supplier of goods receives such addition in value on delayed payment of any consideration.
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2023 (12) TMI 894
Rejection of appeal filed by the petitioner - time limitation - rejection on the ground that there was a delay of 158 days in filing the said appeal - HELD THAT:- On perusal of the N/N. 53/2023-Central Tax dated 02.11.2023, it appears that even after the rejection of appeal on the aspect of delay, the petitioner can very well avail the Amnesty scheme. In such view of the matter, this Court directs the petitioner to avail the Amnesty scheme in terms of Notification No.53/2023-Central Tax dated 02.11.2023. Thereafter, the 1st respondent is directed to consider the same in accordance with law.
This writ petition is disposed of.
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2023 (12) TMI 893
Validity of best judgment assessment orders - attachment of the petitioner's Bank Accounts without any prior intimation to the petitioner or raising any demand - petitioner had filed returns for all the periods - HELD THAT:- This Court is of the considered view that since the petitioner has filed the returns for the Assessment Years 2019-2020 to 2022-23 subsequent to restoration of GST Registration, the best judgment assessment orders passed by the 1st respondent dated 22.11.2022 & 25.11.2022, which are under challenge in WP Nos.4675, 4676, 4677 and 4684 of 2023 are liable to be set aside and the 1st respondent has to pass fresh assessment orders.
The impugned orders are set aside and respondents are directed to pass fresh assessment orders, based on the returns filed by the petitioner for the Assessment Years 2019-2020 to 2022-23. Since the impugned best judgment assessment order is set aside, the consequential bank attachment order is stand lifted to the entire extent - Petition allowed.
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2023 (12) TMI 892
Seizure of goods - jurisdiction to seize the goods - goods seized from the premises of the consignee - goods not in transit - HELD THAT:- A perusal of Annexure P-3 would go on to show that the inspection of the goods under movement was required to be done to ascertain the genuineness of the goods in transit or verification of documents and it is on that account, show cause notice as such was issued.
It is settled principle that the writ Court is not to go into the disputed questions of facts and it is for the petitioner as such to place the relevant material before the respondents to show whether there was any substance in the show cause notice and tax was not being avoided by it.
In M/s. Shiv Enterprises case [2023 (1) TMI 842 - SUPREME COURT], the co-ordinate Bench as such had set aside the order issued by the Assistant Commissioner of State Tax, Mobile Wing, Chandigarh and the notice dated 14.09.2021 issued under Section 130 of the Central Goods Service Tax Act, 2017. Resultantly, directions were issued to release the conveyance and the goods in question. The order of detention had apparently been passed and also show cause notice dated 14.09.2021 had been issued. The Apex Court accordingly came to the conclusion that it is not for this Court to opine anything whether there was any evasion of tax or not while not interfering in the orders releasing the goods in question.
The petitioner has an alternative remedy as such to put forth his case before the respondents and thereafter the respondents shall proceed in accordance with law. Accordingly, no cause is made out to entertain the writ petitions any further - Petition disposed off.
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2023 (12) TMI 891
Appeal dismissed on the ground of being time barred - cancellation of the GST registration - HELD THAT:- This Court in Prakash Purohit’s case [2022 (11) TMI 742 - RAJASTHAN HIGH COURT] has observed that in absence of GST registration, a person would not be able to continue with his business and thus, would be deprived of his livelihood which amounts to violation of right to life and liberty as enshrined in Article 21 of the Constitution of India.
Having heard learned counsel for the parties and taking into consideration the judgment passed by the Co-ordinate Bench of this Court in Prakash Purohit’s case, it is opined that the writ petition filed by the petitioner deserves to be allowed as the petitioner has sufficiently explained the reasons for filing the appeal with delay.
The impugned order dated 18.09.2023 is set aside - writ petition allowed.
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2023 (12) TMI 890
Classification of supply of services - composite supply with principal supply of goods under the Third Contract - supply made by the Applicant under Fifth Contract - supply of services of transportation, freight and insurance under the ‘Fifth Contract’ provided for the goods supplied - Business Support Services or not.
HELD THAT:- Having arrived at the considered conclusion that the instant activity of the applicant of construction, erection and commissioning of the said±800 KV, 6000 MW HVDC terminals at Raigarh, Chhattisgarh from Raigarh which includes the services of transportation, insurance and freight, is a composite works contract service classifiable under construction services falling under SAC 9954, attracting GST @18%, there are no reason to discuss the alternate opinion expressed by the applicant of the said service being in the nature of business support services - there exist no grounds whatsoever, in the case in hand warranting exemption as specified under SI. No. 18 of the Notification No. 12/2017-CT (Rate) dated 28.06.2017, which exclusively covers services by way of transportation of goods.
Supply of goods under the Third Contract being the principal supply - HELD THAT:- Section 7(1 A) of the CGST Act, 2017 read with para 6 (a) of Schedule II to the CGST Act, 2017 stipulates that composite works contracts as defined in section 2(119) of the CGST Act, 2017 shall be treated as supply of services. Thus, when the CGST Act, 2017 itself classifies the instant supply of composite supply of works contract as "supply of service", there exist no reason to identify the "principal supply" in the instant transaction, more so when Notification no. 11/2017 Central Tax (Rate) dated 28.06.2017 as amended prescribes the applicable tax rate in such work contract services.
As the supply of services made by the applicant under Fifth Contract relating to construction, erection, civil works, testing, commissioning etc. of the said ±800 KV, 6000 MW HVDC terminals at Raigarh, Chhattisgarh which includes the services of transportation, freight, and insurance, has been held to be a composite supply of Works contract, the alternate suggestion put forth by the applicant of the same being Business Support Service is not taken up for decision.
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2023 (12) TMI 889
Classification of service - Job-work - Applicant's activity of providing service of re-gasification of Liquified Natural Gas owned by its customers (Who are registered under GST Act) to convert to Re-gasified LNG by raising the temperature of the received LNG in its plant at Dhamara and sending/delivering the RLNG back to its customers through pipelines (as per Job Work Service agreement) - Classifiable under entry (id) of Heading No 9988 at SI. No. 26 of Notification No. 11/2017-CT (Rate) dated 28.06.2017, as amended vide Notification No. 20/2019- CT (Rate) dtd. 30.09.2019 and chargeable to GST @ 12%?
HELD THAT:- The subject activity of conversion of LNG into RLNG is a process undertaken by the Applicant on LNG belonging to other GST Registered persons, namely Gail India Limited Odisha (GSTN 21AAACG1209J2Z7), GAIL India Limited, Uttar Pradesh (GSTN 09AAACG1209J3ZS), GAIL India Limited, Madhya Pradesh (GSTN 23AAACG1209J4Z1 / 23AAACG1209J3Z2), Indian Oil Corporation Limited, Odisha (GSTN 21AAACI1681G1Z1). It is noted that LNG is goods classified at HSN 2711. Further, it is found that the processed goods (RLNG) is to be supplied back to the customers of the Applicant within one year (as declared by the Applicant). So, all the pre-requisites are apparently satisfied for an activity to be 'Job work'.
Government Circular No. 126/45/2019-GST dated 2211-19 has clarified this issue beyond any doubt. Hence, the subject activity of conversion of LNG to RLNG merits to be covered at entry 'id' of Heading 9988 at SI. No. 26 of Notification No. 11/2017-CT (rate) dated 28.06.2017 as amended.
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2023 (12) TMI 888
Scope of Advance Ruling application - Investigation proceedings already initiated - Compensation Cess paid by the Applicant on purchase of Coal which remained as unutilized ITC in the electronic credit ledger - whether credit will be available to the Applicant or the Applicant is required to reverse the same? - HELD THAT:- As per the information available to this forum, we see that DGGI, Rourkela Regional Unit under letter Ref No. DGGI/INV/GST/2873/2021-Gr-A/1698 dated 15.12.2021 & DGGI/ENV/GST/2873/2023-Gr A/212 dated 02.03.2023 has informed that an investigation has been initiated against M/s. National Aluminium Company Ltd. for excess/irregular availment of Compensation Cess which is in advance stage of culmination and a Demand Cum Show Cause Notice is on the verge of issuance. In this regard, it would be pertinent to mention here that the proviso to sub-Section (2) of Section 98 of the CGST Act, 2017 provides that "the Authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in the case of an applicant under any of the provisions of this Act".
The application for advance ruling filed by the Applicant is not maintainable under law and liable for rejection. Hence, the said application is rejected in terms of Section 98(2) of the CGST Act, 2017 read with Section 97(2) of the said Act.
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2023 (12) TMI 835
Input Tax Credit (ITC) - eligibility criteria - Section 16(4) - A challenge to its validity on the ground that it violates Article 14, 19(1)(g), and 300A of the Constitution of India; whether the non-obstante clause in Section 16(2) of the APGST, CGST Act, 2017 would prevail Section 16(4) of the APGST/CGST Act, 2017. - Scope for passing interim order - requirement of affidavit from the respondent for final adjudication - HELD THAT:- The Hon’ble Supreme Court in ALD AUTOMOTIVE PVT. LTD. VERSUS THE COMMERCIAL TAX OFFICER NOW UPGRADED AS THE ASSISTANT COMMISSIONER (CT) & ORS. [2018 (10) TMI 814 - SUPREME COURT] while considering a challenge to Section 19(11) of the Tamil Nadu Value Added Tax Act, 2006 requiring the claim for Input Tax Credit to be made within 90 days from the date of purchase or before the end of the financial year whichever is later as being ultra vires to a statutory claim of the Act, considered as to the principles for interpreting law dealing with economic activities. While doing so, the Hon’ble Supreme Court referred to the decision of the Constitution Bench in RK. GARG VERSUS UNION OF INDIA AND OTHERS [1981 (11) TMI 57 - SUPREME COURT] wherein it was held that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion, etc. It was further held that the legislature should be allowed some play in the joints because it has to deal with complex problems which do not admit of solution through any Doctrinaire or straight jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, larger play has to be allowed to the legislature.
In the ALD Automotive Private Limited an alternate submission was made on behalf of the assessee that Section 19(11) of the Tamil Nadu Value Added Tax Act cannot be held to be mandatory and it is only a directory provision non-compliance with which cannot be a ground of denial of Input Tax Credit to the appellant therein. After noting the conditions enumerated in Section 19 of the said Act, it was held that the conditions under which the concession and benefit is given is always to be strictly construed and if the contention that there is no time period for claiming Input Tax Credit is accepted, the provision becomes too flexible and gives rise to a large number of difficulties including difficulty in verification of claim of Input Tax Credit. Further it was held that the taxing statutes contain self-contained scheme of levy, computation and collection of taxes. The time under which a return is to be filed for the purpose of assessment of tax cannot be dependent on the will of a dealer. Ultimately it was held that the time period prescribed under Section 19(11) of the Tamil Nadu Value Added Tax Act was mandatory.
The Hon’ble Supreme Court in TVS Motor Company Limited [2018 (10) TMI 887 - SUPREME COURT] after taking note of the decision in ALD Automotive held that ITC is a form of concession which is provided by the Act; it cannot be claimed as a matter of right but only in terms of the provision of the statute; therefore the conditions mentioned had to be fulfilled by the dealer. Very recently, the Hon’ble Division Bench of the High Court of Andhra Pradesh had considered an identical case as that of the case on hand, wherein a pari materia provision under the Andhra Pradesh General Sales Tax, 2017 namely Section 16(4) of the Act was considered in a challenge to its validity on the ground that it violates Article 14, 19(1)(g), and 300A of the Constitution of India; whether the non-obstante clause in Section 16(2) of the APGST, CGST Act, 2017 would prevail Section 16(4) of the APGST/CGST Act, 2017.
There are no ground to grant the relief sought for by the petitioner in the writ petition - the appeal as well as the writ petition are dismissed.
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2023 (12) TMI 834
Permission to file an appeal - HELD THAT:- The Special Leave Petition is disposed of permitting the petitioner herein to file an appeal within a period of four weeks from today in accordance with law, if so advised.
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2023 (12) TMI 833
Maintainability of petition - impugned order is an appealable order or not - present petition is filed to avoid the payment of pre-deposit - availability of alternative remedy of appeal - HELD THAT:- Admittedly there is no rejection in writing to the request made by the Petitioner vide letter dated 26th June 2023 seeking 30 days time for making submissions and for personal hearing. The impugned order came to be passed within two weeks from the date of application for adjournment without the Respondents replying to the request for adjournment of the Petitioner - the Respondents ought to have replied to the adjournment request in writing before proceedings to pass the impugned order. The Respondents ought to have also complied with the provisions of Section 75(4) which provides that an opportunity of a hearing shall be granted, when a request is received in writing from the person chargeable with tax or penalty or where any adverse decision is contemplated against such person.
Since, in the instant case, there has been a violation of principles of natural justice and the mandatory provision of Section 75(4) of the CGST Act, the Court is inclined to entertain the present petition under Article 226 of the Constitution of India and quash the impugned order dated 21st July 2023.
The Order-in-Original is quashed and set aside - Respondents to pass a speaking order after considering the written and oral submissions of the Petitioner on or before 28th February 2024.
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2023 (12) TMI 832
Exemption from GST - Validity of clarification issued in para 4(1) of the Circular No. 34/8/2018-GST dated 01.03.2018 by the Government of India - charges for metering equipment, testing fee for meter, labour charges from customers for shifting of meters, charges for bills - activities undertaken by a distribution utility/licensee in accordance with the provisions of the Electricity Act, 2003 are exempt from levy of tax or not - HELD THAT:- The petitioners have not deposited any amount with the Registry of this Court. Mr. Arvind Datar, learned Senior Counsel appearing the petitioners, submits that depositing the tax in this Court would further complicate the issues. He submits that certain industrial consumers are entitled to avail Input Tax Credit in respect of the GST paid to the petitioners. He further submits that in the circumstances, the GST authorities would not receive the tax collected by the petitioners and yet certain other customers would be entitled to avail of credit for the same - There is merit in the said contention that the direction to deposit GST with this Court on a monthly basis may give rise to further complications.
Since the impugned circular has been set aside and it is clarified that the supplies mentioned in the impugned circular are bundled supplies and form an integral part of the supplies of distribution of electricity, the said supplies are not chargeable to GST. Consequently, the petitioners are also not entitled to collect such charges from their customers. In this view, we consider it apposite to direct that any GST collected by the petitioners after 08.11.2023, be refunded to customers from whom the said GST has been collected.
Application disposed off.
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2023 (12) TMI 831
Cancellation of petitioner's GST registration with retrospective effect from 01.07.2017 - non-filing of returns for a continuous period of six months - vague impugned order - violation of principles of natural justice - HELD THAT:- The impugned order is not sustainable as it is not informed by reason. The impugned order has also been passed in violation of the principles of natural justice as the petitioner was not afforded any opportunity of being heard. Although, the SCN called upon the petitioner to appear for personal hearing, it did not specify the date, time or venue of the personal hearing. Thus, there was no possibility for the petitioner to appear at the hearing.
It is also important to note that the impugned order cancelled the petitioner’s GST registration with retrospective effect from 01.07.2017. In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017, the proper officer has a discretion to cancel the registration from any date including with retrospective effect, however, the said discretion cannot be exercised in arbitrary manner. The decision to cancel the registration with retrospective effect must be based on some objective criteria. In the present case, the petitioner’s GST registration was cancelled on account of non-filing of returns for a period of six months. There are no reason for cancellation of the petitioner’s GST registration even for a period when she was filing the returns.
The impugned order does not provide any reason for cancellation of the GST registration let alone reason for doing so with retrospective effect - the impugned order is required to be set aside - Petition disposed off.
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2023 (12) TMI 830
Seeking cancellation of the bail granted to the respondent/accused - suppression of value of taxable supplies - non issuance of invoices with intention to evade payment of GST - HELD THAT:- When the arrest memo does not contain the reasons why the individual has to be arrested which would also be the grounds for the arrest then, at this stage, it may not be appropriate on the part of this Court to go on a hunting spree trying to cull out the reasons for arrest. They may be available in the file and it is always be to the respondent to examine them but as observed by the learned Principal Sessions Judge, the accused was not furnished with a copy of any reason to believe that it is imperative that he must be arrested.
It is pointed out on behalf of the petitioner herein that in the remand report the reasons to believe that the person should be taken into custody have been stated. A remand report is for the subjective satisfaction of the Magistrate, who actually remands the accused to judicial custody. It is not intended for the accused. It is presented before the Magistrate before whom the accused is produced and contains grounds substantiating that it is required that the accused should be remanded to judicial custody and not be let out on bond or to hold that there is no necessity to be remand. Therefore, the reasons given in the remand report would not take the petitioner anywhere so far as this case is concerned.
An order granting or denying bail can never be looked upon as sufficient material for passing a Judgment of either conviction or acquittal - Petition dismissed.
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2023 (12) TMI 829
Constitutional validity of Section 16(4) of the CGST Act - Validity of time limit for ailing benefit of input tax credit (ITC) - Period of limitation - violative of Articles 14, 19(1)(g) & 300A of the Constitution of India - seeking declaration that Section 16(4) is merely procedural in nature which cannot override substantive conditions as mandated under Sections 16(1) & 16(2) of the CGST Act
HELD THAT:- In the TTWYFORD TEA CO., LTD. VERSUS STATE OF KERALA [1970 (1) TMI 80 - SUPREME COURT], the Supreme Court has held that in taxation even more than in other fields, Legislatures possess the greatest freedom in classification. The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it. The Supreme Court has further held that if a State can validly pick and choose one commodity for taxation and that is not open to attack under Article 14, the same result must follow when the State picks out one category of goods and subjects it to taxation.
From the principles laid down by their Lordships of the Supreme Court, it is quite vivid that that the power of the legislature especially in fiscal statute is very wide and can only be challenged on two counts being it lacks legislative competence and that it infringes or takes away any of the fundamental rights or any of the constitutional provisions. However, in the instant case, the petitioner has challenged the constitutional validity of Section 16(4) of the CGST Act on the ground that it is violative of Articles 14, 19(1)(g) & 300A of the Constitution.
The grant of ITC has been made subject to conditions and restrictions put thereunder. Thus, the registered person is entitled for ITC in respect of any invoice or debit note for supply of goods if the requisite conditions stipulated therein are fulfilled. The right of a registered person to take ITC under sub-section (1) of Section 16 would become the vested right only if the conditions to take it are fulfilled.
Similarly, in the matter of INDIA AGENCIES (REGD.) VERSUS ADDITIONAL COMMISSIONER OF COMMERCIAL TAXES, BANGALORE [2004 (12) TMI 372 - SUPREME COURT], the Supreme Court while dealing with Rule 6(b)(ii) of the Central Sales Tax (Karnataka) Rules, 1957, which requires a provision for furnishing original Form C to claim concessional rate of tax under Section 8(1) of the Central Sales Tax Act, 1956, held that the said requirement under the rule is mandatory and without producing specific documents, dealer cannot claim the benefits.
As such, ITC is a nature of benefit or concession extended to the dealer and it can be availed by the beneficiary as per the scheme of the statute subject to fulfillment of the conditions laid down in Section 16(4) of the CGST Act. In that view of the matter, Section 16(4) cannot be held to be violative of Article 14 of the Constitution.
Whether the petitioner, which is a proprietorship firm, can claim protection of Article 19(1)(g) of the Constitution? - HELD THAT:- A careful perusal of the scheme of Article 19 of the Constitution would show that a group of rights are listed as clauses (a) to (g) and are recognized as fundamental rights conferred on citizens. Similarly, the petitioner, which is a proprietorship firm, has filed this writ petition under Article 226 / 227 of the Constitution of India, it has not been filed by any citizen in individual capacity, rather it has been filed by a proprietorship firm namely, M/s Jain Brothers through its Proprietor Mr. Amit Jain - The Supreme Court in the matter of INDIAN SOCIAL ACTION FORUM (INSAF) VERSUS UNION OF INDIA [2020 (3) TMI 1103 - SUPREME COURT] has categorically held that a Company being a juristic person cannot be a citizen for the purpose of Article 19 of the Constitution.
Thus, in view of the provision contained in Article 19(1)(g) of the Constitution and the principles of law laid down by their Lordships of the Supreme Court, it would appear that protection under Article 19(1)(g) of the Constitution is available to a citizen and in order to claim protection under Article 19(1)(g), the person coming to the court must be a citizen, however, in the instant case, proprietorship firm has filed writ petition claiming protection of Article 19(1)(g) - in view of the legal provision flowing from Article 19(1)(g) of the Constitution and the principles of law laid down by their Lordships of the Supreme Court, the petitioner herein, which has filed the present writ petition, is only a proprietorship firm and not a citizen and therefore cannot claim protection of Article 19(1)(g). It is held accordingly and this ground claiming protection of Article 19(1)(g) is not available to the petitioner, which is a proprietorship firm.
The next ground that has been raised on behalf of the petitioner that Section 16(4) of the CGST Act is violative of Article 300A of the Constitution of India, is also not at all made out, as Article 300A is ‘right to property’ which is the constitutional right and clearly provides that it cannot be taken away except in accordance with law.
The provision contained in Section 16(4) of the CGST Act is violative of neither Article 14 of the Constitution nor Articles 19(1)(g) & 300A of the Constitution, however, the ground under Article 19(1)(g) is not available to the petitioner, as the petitioner, in the instant case, is not a citizen and therefore Article 19(1)(g) is not available to the petitioner herein. Concludingly, the petitioner has failed to make out a case to question the constitutional validity of Section 16(4) of the CGST Act as it is a constitutionally valid piece of legislation.
Petition dismissed.
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2023 (12) TMI 828
Cancellation of GST registration of petitioner - wrongful availment or utilization of input tax credit or refund of tax - SCN neither indicated the venue nor the date and time when the petitioner was required to appear - principles of natural justice - HELD THAT:- Pursuant to the show-cause notice, the respondent proceeded to cancel the petitioner’s GST registration by the impugned order. The said order did not specify any reasons for cancellation of the petitioner’s GST registration except mentioning that no reply to the aforementioned show-cause notice was received - It is important to note that the tabular statement set out in the said order indicated that no Central tax/ State tax/ UT tax/ Integrated tax or cess was ascertained as due and payable by the petitioner.
The said show-cause notice is bereft of the necessary particulars so as to enable the petitioner to respond to the same with any clarity. Further, the petitioner was not afforded any opportunity of being heard. This is because, even though the show-cause notice called upon the petitioner to appear for a personal hearing, it did not specify the date, time or the venue of such hearing - The impugned order is also bereft of any reasons. It also does not mention particulars of the invoice or transactions which, according to the concerned authority, are contrary to or in violation of the provisions of the Act.
Although the petitioner has not approached this Court immediately after receiving the impugned order, we do not find that the delay is pernicious to the petitioner’s claim for restoration of the GST registration. As is apparent, the impugned order cancelling the petitioner’s registration was passed in violation of the principles of natural justice and is, thus, liable to be set aside.
The impugned order, cancelling the petitioner’s GST registration is set aside. The respondent is directed to forthwith restore the petitioner’s registration - Petition allowed.
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2023 (12) TMI 827
Seeking direction to decide the Application for Revocation cancellation of Registration - seeking details for the difference in ITC as per GSTR 3B and ITC accured as per GSTR 2A - restoration of GST registration of the petitioner - HELD THAT:- The petitioner responded to the SCN dated 02.08.2023 by furnishing further information regarding the change of its principal place of business. Notwithstanding the same, the petitioner’s application for revocation of the cancellation order dated 25.11.2023 has not been decided. Instead, the Proper Officer has issued a further communication dated 04.09.2023 seeking reconciliation of the difference between the Input Tax Credit claimed under the return (GSTR-3B) and the Input Tax Credit as reflected in the return (GSTR-2A) for the financial years 2020-2021 to 2023-2024 - It is apparent that discrepancy in the Input Tax Credit claimed by the petitioner was not the ground on which the petitioner’s GST registration was cancelled. The petitioner claims that it is handicapped in responding to the communication dated 04.09.2003, and reconciling the Input Tax Credit Claim for more than three financial years, in absence of full access to its GST Portal. This access is unavailable as the petitioner’s GST registration has been cancelled with retrospective effect.
It is considered apposite to direct that the concerned officer shall decide the petitioner’s application for revocation of the cancellation order after examining all aspects as to whether the petitioner was existent at its principal place of business at the material time.
The writ petition is allowed.
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9911796707
