|
Advanced Search Options
GST - Case Laws
Showing 1 to 20 of 11311 Records
-
2024 (4) TMI 950
Validity Of order passed by the competent authority in purported exercise of powers u/s 129 (3) - detention of the goods and vehicle - stock transfer - Penalty - Demand of applicable tax - HELD THAT:- The short contention is that the detained goods were being transported as part of a stock transfer. The goods were not being moved in pursuance to any sale or purchase. The goods were not liable to tax. The detention of the goods and imposition of tax and penalty were unlawful. According to the learned counsel for the petitioner, the aforesaid ground has not been considered by the appellate authority while rejecting the appeal of the petitioner.
Thus, the ground raised by the petitioner merits consideration by the appellate authority in the first instance. Clearly, the appellate authority has failed to do so. Failure of the appellate authority to advert to the said objections of the petitioner, reflects non application of mind to germane issues and vitiates the impugned order passed by the appellate authority.
The impugned order dated 28.12.2020 passed by the appellate authority is consequently set aside. The writ petition is allowed to the extent indicated above.
-
2024 (4) TMI 949
Penalty for Non-filing of monthly return - Seeking permission to file GSTR 3B Return - Seeking refund of amount illegally debited from the Electronic Cash Ledger towards interest and penalty - HELD THAT:- Whatever be the true facts, this much is clear that the petitioner had initiated the payment of tax for the month of April, 2023 within time, in the manner prescribed. The amount was debited from its account, within prescribed time. To that extent, "failure" may never be attributed to the petitioner- in timely payment of the tax amount. The levy of late fee (Section 47) and interest (Section 50) under U.P. GST Act, 2017 may arise only in the event of "failure" on the part of an assessee to file a return and/ or payment of due tax within time.
Insofar as the delay may be attributed exclusively to the respondent-bank after such payment was made by the petitioner within time, on that statement itself the levy of penalty remains unwarranted. What errors may have been committed by the bank/ or GSTN may not involve the petitioner.
Thus, leaving it open to the GSTN and the Bank to device a better mechanism to ensure prompt credit and debit entries to arise in real time as may not create any doubts or disputes in future, the present writ petition stands disposed of as below.
The amount of penalty Rs. 1,07,710.51/- and interest Rs. 100/- deposited by the petitioner under protest may be adjusted against the tax liability for the month of April, 2024 onwards without incurring any liability as to interest on that amount.
-
2024 (4) TMI 948
Validity Of Order passed u/s 73 - Show Cause Notice issued proposing a demand - Penalty - excess claim Input Tax Credit [“ITC”] - No opportunity granted to file reply - HELD THAT:- Perusal of the Show Cause Notice dated 24.09.2023 shows that the Department has given separate headings i.e., under declaration of output tax; the tax on outward supplies under declared on reconciliation of data in GSTR-09; excess claim Input Tax Credit [“ITC”]; Scrutiny of ITC availed and ITC claimed from cancelled dealers, return defaulters & tax non payers. To the said Show Cause Notice, a detailed reply was furnished by the petitioner giving disclosures under each of the heads.
The observation in the impugned order dated 28.12.2023 is not sustainable for the reasons that the reply dated 11.10.2023 (uploaded on portal on 24.10.2023) filed by the Petitioner is a detailed reply. Proper Officer had to at least consider the reply on merits and then form an opinion. He merely held that the reply is unsatisfactory, which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the petitioner.
Thus, the impugned order dated 28.12.2023 cannot be sustained, and the matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order dated 28.12.2023 is set aside and the matter is remitted to the Proper Officer for re-adjudication.
It is clarified that this Court has neither considered nor commented upon the merits of the contentions of either party.
-
2024 (4) TMI 947
Cancellation of the GST registration retrospectively - Validity Of Order passed and Show cause notice - barred by limitation - Petitioner unable to conduct business because of the owner’s ill health resulting in default of filing returns and obeying notices - HELD THAT:-Pursuant to the said impugned order, Petitioner filed an application dated 02.11.2019 seeking revocation of cancellation of GST registration. On the said application, Petitioner was issued Show Cause Notice dated 24.05.2022 for rejection of application for revocation of cancellation of registration. It merely stated “Any Supporting Document - Others (Please specify) - GSTIN is neither Aadhaar Authenticated nor e-KYC verified.
We notice that the Show Cause Notice and the impugned order are bereft of any details. Accordingly, the same cannot be sustained. Neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the taxpayer during such period. Although, we do not consider it apposite to examine this aspect but assuming that the respondent’s contention in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer’s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
Thus, order dated 24.09.2019 cannot be sustained and is accordingly set aside. The GST registration of the petitioner is restored. Petitioner shall, however, make all necessary compliances and file the requisite returns and information inter alia in terms of Rule 23 of the Central Goods and Services Tax Rules, 2017.
The petition is accordingly disposed of in the above terms.
-
2024 (4) TMI 946
Validity of Orders passed u/s 73 - excess claim of Input Tax Credit [ITC] - Inadequate Consideration of Replies - Levy of penalty - No opportunity of Personal Hearing - HELD THAT:- Perusal of the Show Cause Notices dated 05.09.2023 and 29.09.2023 shows that the Department has issued both the notices on similar grounds and headings i.e., excess claim Input Tax Credit [“ITC”]; Scrutiny of ITC availed and scrutiny of ITC reversals, to the said Show Cause Notices, detailed replies were furnished by the petitioner giving disclosures under each of the heads. Pursuant to the said Show Cause Notices, Petitioner was issued reminders dated 21.12.2023 thereafter Petitioner filed replies dated 26.12.2023 to the said reminders.
The observation in the impugned orders dated 31.12.2023 is not sustainable for the reasons that the replies dated 14.12.2023 and 03.10.2023 filed by the Petitioner are detailed replies with supporting documents. Proper Officer had to at least consider the reply on merits and then form an opinion. He merely held that the reply dated 03.10.2023 is unsatisfactory and reply dated 14.12.2023 is not supported with proper calculations/reconciliation and relevant documents, which ex-facie shows that the Proper Officer has not applied his mind to the replies submitted by the petitioner.
Further, if the Proper Officer was of the view that any further details were required, the same could have been specifically sought from the Petitioner. However, the record does not reflect that any such opportunity was given to the Petitioner to clarify its reply or furnish further documents/details.
Thus, impugned orders dated 31.12.2023 cannot be sustained, and the matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, impugned orders dated 31.12.2023 are set aside and the matter is remitted to the Proper Officer for re-adjudication.
Petition is disposed of in the above terms.
-
2024 (4) TMI 945
Validity Of Show Cause Notice issued defective - cancellation GST registration - HELD THAT:- This Court does not interdict a Show Cause Notice and delegates the authorities to adjudicate the Show Cause Notice, however, we note that the subject Show Cause Notice itself is defective and does not give any details or particulars. The Show Cause Notice in the reasons column has merely extracted the provisions of law. It states that the petitioner has issued invoices or bills without supply of goods or services, however, no details of invoices, bills or non-supply of goods or services has been mentioned in the Show Cause Notice.
In view of the fact that the Show Cause Notice is bereft of any details and suffers from infirmities that go to the root of the cause, we are not exercising the power of remit and directing the proper officer to re-adjudicate the Show Cause Notice.
Thus, we quash the same. The impugned Show Cause Notice dated 12.10.2022 is accordingly set aside. Petition is disposed of in the above terms.
-
2024 (4) TMI 944
Alternate appellate remedy - Validity Of order-in-original - Recovery of demand of service tax - CIRP Proceedings under IBC - The effect of the approved resolution plan on the liabilities of the appellant - HELD THAT:- In the instant case, the proceedings before the NCLT, Kolkata Bench for approval of a corporate resolution plan was initiated in the year 2018, to be precise, on 08.01.2018 and the show cause notice was said to have been issued on the erstwhile company dated 05.11.2019. The resolution plan was approved by the NCLT, Kolkata Bench on 04.09.2019 and affirmed by the NCLT, New Delhi on 04.03.2021 and a special leave petition filed against the said order before the Hon'ble Supreme Court was dismissed on 04.05.2021.
Thus, it is seen that the process under the Insolvency and Bankruptcy Code, 2016 had commenced much prior to the issuance of the show cause notice. Therefore, the above points of law are required to be considered, more particularly, the law laid down by the Hon'ble Supreme Court in several decisions of which we may refer to the decisions in the case of Ruchi Soya Industries Ltd. & Ors. vs. Union of India & ors. [2022 (3) TMI 60 - SUPREME COURT] wherein the Hon'ble Supreme Court held that the claim in respect of the demand having not lodged before the appropriate authority after public announcements were issued under Sections 13 and 15 of the I.B.C., as such, on the date on which the resolution plan was approved by the NCLT, all claims stood frozen and no claim, which is not part of the resolution plan, would survive.
We are satisfied that points of law are required to be decided in the writ petition and, therefore, the appellant need not be relegated to avail the alternate appellate remedy under the Act, more so, when the jurisdiction of the second respondent has been questioned.
Therefore, we are of the view that the writ petition should be heard after an affidavit-in-opposition is filed by the respondents and a decision should be taken on merits and in accordance with law.
In the result, the appeal and its connected application stand allowed and the order passed in the writ petition is set aside. The writ petition is admitted for hearing. The order-in original dated 21.11.2023 impugned in the writ petition shall remain stayed till the disposal of the writ petition.
-
2024 (4) TMI 943
Seeking rectification in Form GSTR-1 - limitation period - Works contract services - Input Tax Credit (“ITC”) - non-uploading of the invoices in GSTR-1 as B2B invoice - non-payment on the ground of financial distress due to COVID-19 - failed to deposit the tax liability - HELD THAT:- The primary object behind the CGST Act is levy and collection of tax on intra State supply of goods or services and the matters connected therewith or incidental thereto. However, it is understood that the CGST Act, 2017 is a complete Code and the aggrieved party may loose certain benefits by operation of the provisions thereunder. Section 39 of the CGST Act provides that every registered person other than an input service distributor or a non-resident taxable person shall for every calendar month or part thereof furnish a return of inward and outward supply of goods and service.
There are other requirements/ stipulations u/s 39 which every registered person/Firm is required to comply. Sub-section (2) to Section 16 lays down the conditions for availing of the Input Tax Credit by every registered person, and one of the conditions is that the details of the invoice or debit note was furnished by supplier in the statement of outward supplies and such details have been communicated to the recipient of such invoice or debit note in the manner specified in Section 37. Under sub-section (1) to Section 37, the details of outward supplies of the goods and services or both affected during a tax period must be furnished on or before the tenth day of the month succeeding the tax period. Proviso to sub-section (3) provides that no rectification of error or omission in respect of the details furnished by the registered person of the outward supplies under sub-section (1) shall be allowed after the thirtieth day of November following the end of the financial year to which such details pertain.
We have come to a conclusion that no relief can be granted to the petitioner-Firm. As to the prayers made in the writ petition, there shall be issues regarding limitation and implied knowledge to the petitioner-Firm.
According to Mr. Ankit Kanodia, the learned Sr. counsel for the petitioner-Firm, a notification was issued under which the time for filing the return was extended up to 7th February 2020, but then, there are further periods of dispute starting from 2018-19, 2020-21 & 2021-2022. In “M/s Mahalaxmi Infra Contract Ltd.”[2022 (11) TMI 323 - JHARKHAND HIGH COURT], the mistake in the entries pertained to just one Tax Invoice and there was no dispute on facts. M/s Mahalaxmi Infra Contract Ltd. had made the entry in respect to the Tax Invoice dated 17th January 2019 in the GSTR-1 against the GSTIN of another entity which was not the recipient of the supply. Therefore, the GSTR-2A return of the said entity reflected the same but it did not avail the Input Tax Credit for that entry. However, the ECL which was the recipient of the supply against tax invoice dated 17th January 2019 availed the Input Tax Credit for such transaction but reversed the entry on realizing the mistake.
This was the background in which the writ Court permitted M/s Mahalaxmi Infra Contract Ltd. rectification in the return filed by it. Whereas, in the present case, even payment of the entire liability was not made by the petitioner-Firm. Mr. Ankit Kanodia, the learned Sr. counsel for the petitioner-Firm has made a statement in the Court that now the entire liability has since been paid, by the petitioner-Firm. May be that is the correct factual aspect but for that reason the powers under Article 226 of the Constitution of India cannot be exercised ignoring the statutory regime under the CGST.
The writ Court while exercising its jurisdiction and powers under Article 226 of the Constitution of India shall remain alive to the considerations whether the relief sought is barred by any law or the relief if granted shall be in the public interest. The writ Court shall also remain conscious that it has to adjudicate the prayer made in the main petition and should not travel beyond that merely because some statement of fact has been made or brought on record by filing supplementary affidavit. As we glance through the writ pleadings, the petitioner-Firm did not provide correct and sufficient information’s, and this is not correct to say that the petitioner-Firm could know about the mistake sometime in 2022.
Thus, we are not inclined to entertain this writ petition which is, accordingly, dismissed.
-
2024 (4) TMI 895
Seeking renewal of registration of Goods Service Tax (GST) - cancelled due to non-filing of returns - portal open for a limited time period - HELD THAT:- This Court is of the considered view that the interest of the revenue as well as that of the appellant can be protected if the West Bengal GST Authority is directed to restore the appellant’s GST registration and open the portal for a limited time period to enable the appellant to file the return and pay off the amount on account of interest, penalty and late fees including any amount due as tax within the said time frame.
Therefore, we direct the West Bengal GST Authority to restore the appellant’s GST registration and open the portal for a period of 30 days from date to enable the appellant to file the return and to pay any amount due as tax together with interest, penalty and late fees within the said period.
In case the appellant fails to file the return and pay the interest, penalty and late fees including any amount due as tax within the time period stipulated here-in-before, this order shall not have any force and the respondent GST Authority will be entitled to block the portal and the order cancelling the registration shall automatically stand revived.
Thus, the appeal being MAT and the writ-petition being WPA are disposed of.
-
2024 (4) TMI 894
Validity Of order passed without signed by the authority - Principles of natural justice - Avoidable mistake - Scope of Section 160 of GST - HELD THAT:- In M/s. SRK Enterprises’ case (cited supra), this Court referred to the previous order of the Co-ordinate Bench in the case of A.V. Bhanoji Row vs. Assistant Commissioner (ST) [2023 (2) TMI 1224 - ANDHRA PRADESH HIGH COURT] and held that the signatures cannot be dispensed with and the provisions of Section 160 & 169 of the CGST Act, 2017 would not come to the rescue.
Thus, we allow this petition and set aside the proceedings/order issued by respondent No. 1 dated 05.06.2023. The respondent authorities to pass fresh orders in accordance with law, expeditiously.
The Writ Petition stands allowed in part in the aforesaid terms.
-
2024 (4) TMI 893
Appealable Order - Validity of final assessment order - Return of the documents - violation of the principles of natural justice - HELD THAT:- The submission as advanced by the petitioner’s counsel with respect to the return of the documents raises a disputed question of fact. There is specific mention in the order that the documents were returned. The question whether they were returned or not returned or said P. Nagesh, was the person authorized by the petitioner to receive those documents or not, deserve not to be entered into and decided, in the exercise of the writ jurisdiction, being the disputed questions of fact, might be requiring proof of so many other factual aspects.
Consequently, we do not find any ground of violation of the principles of natural justice, on the argument advanced, so as to entertain the writ petition and to by-pass the statutory remedy of appeal.
The writ petition is dismissed on the ground of statutory alternative remedy for the period with effect from April, 2018 to January, 2023. It is clarified that the writ petition survives for the period from the July, 2017 to March 2018.
-
2024 (4) TMI 892
Validity Of Order for Cancellation of Registration passed in Form GST REG-19 - non-application of mind - No opportunity of hearing - managing partner of petitioner’s firm i.e., the deponent, was not able to concentrate on the business operations as he was attacked with paralytic stroke - Violation of Principles of natural justice - HELD THAT:- Admittedly, the petitioner did not file reply to the show cause notice we find force in the submission of the learned counsel for the petitioner that the order suffers from non-application of mind and has been passed mechanically.
On the said point there is no contrary instructions to the learned Government Pleader. Any counter affidavit denying the averments in para-4, of the writ affidavit, has not been filed inspite of opportunity granted. The petitioner has also annexed documents (P3) in support of para 4 of the writ affidavit. We have no reason to disbelieve the same. Consequently, we are of the view that the cause shown for not being able to file the reply to show cause notice is sufficient. The petitioner deserves opportunity of hearing to be granted in consonance with the principles of natural justice.
Thus, we allow the writ petition and quash the impugned order dated 16.06.2023. Writ Petition stands allowed partly.
-
2024 (4) TMI 856
Difference in turnover declared in GSTR 3B on comparison with the GSTR 1 statement - reversal of the Input Tax Credit (ITC) - HELD THAT:- The respondent recognised the fact that the petitioner paid amounts due with regard to the difference between GSTR 1 and 3B on 09.01.2023. In spite of noticing the same, the respondent recorded at page no.23 of the typed set that the taxable person did not pay the tax dues within 15 days of the receipt of the notice dated 17.03.2023. This conclusion is contrary to the documents on record. As regards the reversal of ITC in respect of purchases from Sri Vela Hardware and Paints, it is unclear as to the basis for concluding that the petitioner had purchased paint in view of the petitioner's reply dated 23.09.2023 and the documents annexed thereto.
Since the petitioner's reply and the documents annexed thereto were not taken into consideration, the impugned order is unsustainable as regards these issues.
The impugned order is set aside in so far as it pertains to the issues relating to difference between GSTR 1 and 3B and reversal of ITC with regard to purchases from Sri Vela Hardware and Paints. As a corollary, the matter is remanded for reconsideration only with regard to these two issues. After providing a reasonable opportunity to the petitioner, including a personal hearing, the respondent is directed to issue a fresh order with regard to these two issues within a period of three months from the date of receipt of a copy of this order.
The writ petition is disposed off.
-
2024 (4) TMI 855
Cancellation of the petitioner's GST registration - petitioner had not filed returns for a continuous period of six months - HELD THAT:- Section 29(2)(c) of applicable GST enactments, as its stood at the relevant point of time, enabled cancellation of registration for non filing of returns by a registered person for not less than a continuous period of six months.
The petitioner has placed on record proof of filing of GSTR 1 and 3B returns for August and September 2022-23. Such returns were filed in February 2023. The impugned order of cancellation was issued on 15.03.2023, which is subsequent thereto. By the time of cancellation, on account of the filing of the returns for August and September of assessment period 2022-23, it could not have been concluded that the petitioner had not filed returns for a continuous period of six months. In those circumstances, the impugned order of cancellation cannot be sustained.
The impugned order of cancellation dated 15.03.2023 is set aside and, as a consequence, the registration of the petitioner shall stand restored. Such restoration is subject to the petitioner filing returns for all periods commencing from the effective date of cancellation - petition disposed off.
-
2024 (4) TMI 854
Power of condone the delay beyond four months - pre-deposit has been done after the period was over - HELD THAT:- The period of four months has to be calculated in terms of the General Clauses Act. Once the appeal has been submitted on 30.09.2023 in the order passed on 30.05.2023, if calculated mathematically it would be less than four months. The petitioner has also given out other reasons for not filing the appeal within the period of three months. In the opinion of this Court the delay ought to have been condoned, which was within the powers of the appellate authority upto one month.
The matter remanded back to the appellate authority to decide the appeal more so as the amount of pre - deposit has already been deposited by the petitioner - petition allowed by way of remand.
-
2024 (4) TMI 853
Violation of principles of natural justice - the issues in the impugned order not duly considered - Short payment of GST on import of services from a subsidiary company - second proviso to Rule 28 of the Central Goods and Services Tax Rules, 2017 - non payment of GST on turnover from export of services - export invoice of the petitioner was raised in US dollars - mismatch between the GSTR 1 and 3B - mismatch occurred on account of invoices which were cancelled because services were not provided.
Short payment of GST on import of services from a subsidiary company - reliance placed on second proviso to Rule 28 of the Central Goods and Services Tax Rules, 2017 - HELD THAT:- The respondents failed to record any reasons for rejecting the contention. Indeed, it appears that the order is incomplete on this issue.
Non payment of GST on turnover from export of services - export invoice of the petitioner was raised in US dollars - HELD THAT:- The documents placed on record by the petitioner, such as the export invoices and the credit advice appear to indicate prima facie that the invoice was raised in US dollars; payment was also remitted into India in foreign currency; and thereafter converted into INR. This observation is, however, tentative and not intended to be binding on the respondents.
Mismatch between the GSTR 1 and 3B - mismatch occurred on account of invoices which were cancelled because services were not provided - HELD THAT:- The petitioner has pointed out that no revenue loss was caused by adopting the procedure of cancelling the invoice instead of raising the credit note in respect of services not provided.
Since all these issues have not been duly considered in the order impugned herein, it is just and necessary that the 1st respondent reconsiders the matter after providing a reasonable opportunity to the petitioner. At the same time, it should be recognised that the petitioner has approached this Court instead of approaching the appellate authority by remitting 10% of the disputed tax demand. In the over all facts and circumstances, it is also necessary to safeguard revenue interest to an extent - the petitioner agrees to remit a sum of Rs. 20,00,000/- as a condition for remand.
The impugned order is set aside and the matter is remanded for reconsideration subject to the condition that the petitioner remits a sum of Rs. 20,00,000/- as agreed to within a maximum period of four weeks from the date of receipt of a copy of this order - petition disposed off by way of remand
-
2024 (4) TMI 852
Release of seized goods - contention of the appellants is that the present appellants are distinct and separate entity and has got nothing to do with the prayer made by the other writ petitioners, namely, Biswas Timber Mart and Others - HELD THAT:- In the preamble portion of the order the facts have been recorded in which a finding has been recorded that the present appellants failed to differentiate the stock of timber belonging to them out of the total stock of timber in the business premises; they failed to differentiate the stock of timber belonging to Biswas Timber Mart (one of the petitioners in WPA 17991 of 2023) out of the total stock of timber in the business premises of M/s. Kanak Timber House with valid documents and failed to provide any valid documents which proves that the individual stock of timbers of Swapan Kumar Biswas and Tapan Kumar Biswas have been carrying forward since the time of transfer of the assets i.e. 2010 and M/s. Kanak Timber House could not even prove with supporting evidence that any stock of timbers ever belonged to any individual even their father.
It is not required to comment the correctness of the order dated 1st September, 2023 passed by the Assistant Commissioner of State Tax since the aggrieved persons are entitled to challenge the said order in terms of the provisions of the Act. Even going by the order passed in the writ petition dated 08.08.2023 it is seen that there have been several claims for release of the same stock of timber and these requests have been made much prior to the expiry of six months period from the date of seizure.
Thus, on account of the conduct of the appellants, the appellants are not entitled to any relief in this appeal - appeal dismissed.
-
2024 (4) TMI 851
Scope and Interpretation of Contract - Seeking reimbursement of the GST paid by them for the procurement of raw materials, intermediary components etc. and the bought-out items dispatched directly from the sub-vendors to the work site - barred under clause 31 of the General Conditions of Contract or not - Doctrine of Merger - HELD THAT:- The effect of deletion of the latter portion in clause 10.7 of the GCC shall be that the adjustment of GST component shall no longer be restricted to direct transactions between the Employer and the Contractor. The writ Court rightly held that clause 31 of the GCC cannot be read in a manner so as to obliterate the impact of the amended clause 10.7 of the GCC. Now having thus interpreted the different clauses under the GST, we say with certainty that the entitlement of the petitioner-Firms to claim the increase in the tax liability on the indirect transactions that underwent change in the course of the working of the contract is an enforceable right under section 64-A of the Sale of Goods Act, which can be denied only in the case of a contract to the contrary.
Doctrine of Merger of High Court Decision with the Order of Supreme Court - HELD THAT:- When a Special Leave Petition is dismissed in limine the order passed by the High Court does not merge with the dismissal order passed by the Hon’ble Supreme Court. This seems to be the reason that even after the dismissal of the Special Leave Petition in limine the aggrieved party can move a petition for review of the order/judgment of the High Court. As indicated in KUNHAYAMMED AND OTHERS VERSUS STATE OF KERALA AND ANOTHER [2000 (7) TMI 67 - SUPREME COURT] the Special Leave Petition filed by the State of Jharkhand was dismissed without ‘leave’ being granted by the Hon’ble Supreme Court and the challenge laid to the judgment in M/S. TECHNO ELECTRIC AND ENGINEERING COMPANY LIMITED, VERSUS THE STATE OF JHARKHAND, JHARKHAND BIJLI VITRAN NIGAM LIMITED, FINANCE CONTROLLER, JBVNL, AND OTHERS [2023 (7) TMI 1292 - JHARKHAND HIGH COURT] was dismissed in limine. However, what is contended on behalf of the petitioner-Firms is that in the identical set of facts there cannot be more than one decision governing the same subject-matter.
This is a settled law that the State and its instrumentalities are required to demonstrate fair play in action. In ABL INTERNATIONAL LTD. & ANR. VERSUS EXPORT CREDIT GUARANTEE CORPORTION OF INDIA LIMITED & ORS. [2003 (12) TMI 584 - SUPREME COURT] the Hon’ble Supreme Court observed that even in contractual matters, the State and its instrumentalities are required to follow the equality clause under Article 14 of the Constitution of India. The petitioner-Firms were agitating for their right to refund/reimbursement for long. They have brought on record the copies of their representations made to the JBVNL, and the response thereto by the JBVNL was that the matter is pending litigation.
The stand taken by the JBVNL that the pre-bid clarification which resulted in amendment in clause 10.7 and subsequent incorporation of clause 28 in the GCC shall not be available to the petitioner-Firms violates the basic norm of justice, equity and fair play. It is not disputed that the nature of the work awarded to the petitioner-Firms in both phases is the same and the execution of the work under the previous contracts was in progress when the amendment in clause 10.7 of the GCC was made - the petitioner-Firms and other similarly situated Contractors are entitled to reimbursement of the GST impact also on the indirect transactions on which the GST was imposed.
The JBVNL shall calculate and reimburse the petitioner-Firms the GST component paid by them and it shall release the withheld amount from the bills of the petitioner-Firms, if any - the petitioner-Firms are entitled for reimbursement of the GST along with statutory interest in terms of the GST Act, 2017 read with the Rules framed thereunder - Petition allowed.
-
2024 (4) TMI 850
Seeking cancellation of pre-arrest bail granted to the respondent - evasion of GST revenue - running fake firms and generating fake E-way bills - HELD THAT:- Hon’ble Apex Court in THE STATE OF GUJARAT ETC. VERSUS CHOODAMANI PARMESHWARAN IYER & ANR. ETC. [2023 (7) TMI 1008 - SUPREME COURT] observed that Thus, the position of law is that if any person is summoned under Section 69 of the CGST Act, 2017 for the purpose of recording of his statement, the provisions of Section 438 of Criminal Procedure Code, 1908 cannot be invoked. We say so as no First Information Report gets registered before the power of arrest under Section 69(1) of the CGST Act, 2017 is invoked and in such circumstances, the person summoned cannot invoke Section 438 of the Code of Criminal Procedure for anticipatory bail. The only way a person summoned can seek protection against the pre-trial arrest is to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India.
In the light of the above observation of the Hon’ble Apex Court, in the present case also after the non-applicant is summoned in view of the provisions conferred by Section 69(1) of the GST Act, 2017 he approached to the Sessions Court and the Sessions Court without considering the provisions and the necessity, granted bail to the non-applicant in the event of his arrest. In view of the observation of the Hon’ble Apex Court, the anticipatory bail application itself is not maintainable. Thus, the Sessions Court has ignored the provisions of law and granted bail which is contrary to the law. In view of that bail granted to the present non-applicant deserves to be cancelled.
The bail granted to the present non-applicant is hereby cancelled - Application allowed.
-
2024 (4) TMI 849
Validity of impugned order u/s 73 of the CGST Act - appealable order under the CGST Act or not - fraud of criminal nature or not - HELD THAT:- This Court fails to understand as to how the nature of allegation of fraud which is fully criminal in nature can be taken cognizance by the writ Court in exercise of constitutional writ jurisdiction under Article 226 of the Constitution of India while the impugned order is the adjudication order under Section 73 of the CGST Act which is an appellable order under the statute and adjudication proceeding has been initiated in accordance with law and the petitioner has participated in the proceeding and there is no allegation of denial of opportunity of hearing to the petitioner before passing the impugned order.
It is also not a case that the impugned statutory appellable adjudication order has been passed is non-speaking or is contrary to any specific provision of law or there is any procedural irregularity or that the authority who has passed the order is having inherent lack of jurisdiction.
The allegation of the petitioner is purely criminal in nature and petitioner intends this Court to invoke constitutional writ jurisdiction under Article 226 of the Constitution of India by acting as an investigation authority or as an appellate authority over the impugned adjudication order and to reappreciate the material evidence and the issue raised is purely criminal in nature which is not within the ambit and scope of constitutional writ jurisdiction.
The petition is dismissed on the ground of alternative remedy by way of statutory appeal against the impugned adjudication order under the CGST Act.
........
|
