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GST - Case Laws
Showing 181 to 200 of 11326 Records
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2024 (4) TMI 214
Violation of principles of natural justice - the impugned order does not take into consideration the reply submitted by the petitioner and is a cryptic order - under declaration of output tax - excess claim Input Tax Credit [ITC] - ITC claimed from cancelled dealers - returns defaulters and Tax non-payers - HELD THAT:- The observation in the impugned order dated 30.12.2023 is not sustainable for the reasons that the reply filed by the petitioner is a detailed reply. Proper Officer had to at least consider the reply on merits and then form an opinion whether the reply was unsatisfactory, incomplete and not duly supported by adequate documents. He merely held that the reply is not duly supported by adequate documents, clear and unsatisfactory which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the petitioner.
Further, if the Proper Officer was of the view that the reply is not clear and unsatisfactory and if 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.
The matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order dated 30.12.2023 is set aside - Petition allowed by way of remand.
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2024 (4) TMI 213
Retrospective cancellation of GST registration of petitioner - notice does not specify any cogent reason - principles of natural justice - HELD THAT:- The SCN and the impugned orders are bereft of any details and accordingly the same cannot be sustained. Neither the Show Cause Notice, nor the orders spell out the reasons for retrospective cancellation - SCN also does not put the petitioner to notice that the registration is liable to be cancelled retrospectively. Accordingly, the petitioner had no opportunity to even object to the retrospective cancellation of the registration.
In terms of Section 29(2) of the Act, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria.
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 tax payer during such period. Although, it is not considered apposite to examine this aspect but assuming that the respondent’s contention is 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.
The SCN dated 29.09.2022 and impugned orders dated 13.10.2022 and 11.10.2023 cannot be sustained and are accordingly set aside - GST registration of the petitioner is restored - Application disposed off.
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2024 (4) TMI 212
Cancellation of registration of Firm - failure to furnish the returns for a continuous period of six months - seeking to avail the option under section 30 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The primary object behind the GST Act is levy and collection of tax on intra State supply of goods or services and the matters connected therewith or incidental thereto. Now the cancellation of registration shall ensue serious civil consequences for the petitioner and his entire business shall come to a standstill. The provisions under sections 30, 45, 46, 47 etc. are intended at providing opportunity to the defaulter Firm so as the Firm continues its business.
Therefore, a liberal approach is required to be taken in the matters like the present proceeding notwithstanding the period prescribed under section 30 of the GST Act having been lapsed. Having thus examined the materials on record, it is opined that a permission to the petitioner to file an application under section 30 of GST Act can be granted subject to the petitioner making payment of statutory penalty/fine, if any, for moving the application under section 30 of the GST Act.
The present writ petition succeeds to the extent that the petitioner may file an application under section 30 of the GST Act within a period of 30 days and the period of limitation shall be counted from the date of this order.
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2024 (4) TMI 211
Violation of principles of natural justice - mandatory SCN was not served - provisional attachment of property - HELD THAT:- The Central Board of Indirect Taxes and Customs has issued Master Circular No. 1053/2/2017-CX setting out detailed guidelines for the authorities under the Act as to how a show cause notice under Section 11A of Central Excise Act, 1944/ Section 73 of the Chapter V of the Finance Act, 1994 should be issued. In accordance with Section 6 thereof and Section 27 of the Bihar and Orissa General Clauses Act, 1917, the said circular will apply in the case of issuance of show cause notice under the Act - It further transpires from record that an admission in the hands of the answering deponent has been made to the effect that no opportunity of hearing was extended to the Petitioner. It is a settled proposition of law that any proceeding which has civil and penal consequences, principle of natural justice has to be read into before issuing a final order. From record it appears that the order impugned is dated 14.07.2020, which has never been served upon the petitioner in the manner prescribed under the Act and that too during the Covid-19 period.
The power to attach the bank account has to be only by way of an order passed by the Commissioner in order to protect the interest of government revenue and the cash credit account not being as asset of the petitioner, the same could not have been attached in any eventuality. The exercise of power purportedly under Section 79 is nothing else, but a misuse of power vested in the authority under the Act. The respondents have failed to say and satisfy as to how the authority of law has been followed and when the petitioner has never been extended any opportunity of hearing before passing of the order complained of, nor have been communicated before attachment of the bank account.
Now it is a settled principle of law that any authority has to follow the principle of natural justice and in the instant case the alleged show cause notice in terms of DRC-01 has been issued under Rule 142 of JGST Rule 2017, demanding tax, interest and penalty. However, from record it would transpire that the summary show cause notice in terms of Rule 142 (1) has not been complied with which is mandatory under Section 73/74 of JGST Act 2017.
It is clear from the plain language of Section 83(2) of the CGST Act that the operation of an order provisionally attaching the bank account would cease to be operative after the expiry of the statutory period of one year. As stated hereinabove at best only the interest can be recovered from the petitioner for delay filing of return but demand of the entire amount is illegal and liable to be quashed and set aside.
The impugned order/notice dated 14.07.2020 and subsequent GST DRC-07 dated 16.07.2020, are hereby, quashed and set aside. Consequently, the letter of attachment/ freezing bank account of the petitioner being account no. 07180500010245 with the UCO Bank, Tata Kandra Rd. Dist. Saraikela-Kharsawa, Jharkhand, is also quashed - matter is remitted back to the Adjudicating Authority to issue statutory notice to the petitioner and pass a fresh order with respect to interest after verifying the records after following due process of law strictly in accordance with the provisions of the Act.
Application allowed.
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2024 (4) TMI 210
Violation of principles of natural justice - deprivation of the right of personal hearing or not - notices for personal hearing not served - technical glitch - HELD THAT:- It appears to be a case where because of technicalities, the notices for personal hearing seems to have not been served upon the petitioner and he has not been provided with a fair opportunity of personal hearing.
The Order-in-Original dated 28.11.2023, to the aforesaid extent deserves to be set aside and it is ordered accordingly. However, the impugned order is interfered with only on the ground of it being violative of principles of natural justice. The petitioner is directed to enter appearance before the authorities concerned on 07.03.2024 for personal hearing. Thereafter, the authorities concerned shall proceed further and pass appropriate fresh order in accordance with law. It is made clear that there shall be no necessity for issuance of any further notice in this regard to the petitioner by the Department.
Petition allowed.
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2024 (4) TMI 161
Validity of the Order-in-Original - Adjudication of show cause notice - adjudication was not fair - No opportunity to raise preliminary objections - prayer for amendment of the Petition for incorporating the additional prayer - HELD THAT:- We are of the clear opinion that there is much substance in the contentions as urged on behalf of the Petitioner that the adjudicating officer ought to have granted an opportunity to the Petitioner to raise all contentions in the course of adjudication in the event he intended to decide the Show Cause Notice and not the preliminary objections. In such situation, the Petitioner could not have been taken unaware of the intentions of the adjudicating officer. There cannot to be any vagueness in the course of quasi-judicial adjudication and by taking a party by surprise on what would be actually adjudicated, more particularly, when there was a High Court Order.
To undertake a quasi-judicial adjudication is a solemn exercise which needs to be fulfilled with fairness and having all attributes of judicial adjudication. We may observe that the Order dated 1st December, 2023 passed by this Court was clear to the effect that, on 5th December, 2023, the Petitioner would raise before the adjudicating officer its preliminary objections, it was such issue which was expected to be decided.
Significantly, on the backdrop of the Court’s Order dated 1st December, 2023, the Petitioner was not put to a specific notice that, apart from the preliminary objections, the show cause notice itself would be taken up for consideration and would be decided. The hearing on the preliminary objections took place on 5th December, 2023, sans a faintest idea to the Petitioner that a final order on the show cause notice would be passed. Further, no opportunity to place on record the relevant documents was granted to the Petitioner, nor the same could be raised for want of the Petitioner’s knowledge that the show cause notice itself is being taken up for decision much less on the ground, that the show cause notice needs to be decided by 31st December, 2023, failing which, it would be barred by limitation.
Considering the well settled principles of law in regard to quasi-judicial adjudication necessarily a fair and proper opportunity was required to be made available to the Petitioner and a clear notice, that final adjudication on the Show Cause Notice was to be held, should have been provided.
Thus, we are of the opinion that the impugned Order-in-Original deserves to be quashed and set aside and the proceedings remanded to the adjudicating officer for deciding all the issues, including the preliminary objections, by a fresh order to be passed.
Ordered accordingly. Petition stands disposed of in the aforesaid terms.
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2024 (4) TMI 160
Violation of principles of natural justice - impugned order does not take into consideration the reply submitted by the Petitioner and is a cryptic order - excess claim Input Tax Credit - under declaration of ineligible ITC - ITC claimed from cancelled dealers - return defaulters and tax nonpayers - HELD THAT:- The observation in the impugned order dated 28.12.2023 is not sustainable for the reasons that the reply filed by the Petitioner is a detailed reply. Proper Officer had to at least consider the reply on merits and then form an opinion whether the reply was unsatisfactory. He merely held that the reply is not satisfactory which ex-facie shows that Proper Officer has not applied his mind to the reply 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 - the order 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. The matter is remitted to the Proper Officer for re-adjudication.
Petition disposed off.
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2024 (4) TMI 159
Suspension of the GST registration - no copy of the suspension order has been received by the petitioner - GST portal is still showing the registration as suspended - incarcerated the commitments - Prayer for suspension/cancellation of the petitioner be kept on hold to enable the petitioner to complete the said supply to only BHEL - HELD THAT:- The order suspending/cancelling the GST registration of the petitioner is modified to the extent that the petitioner would be permitted to make supplies to BHEL against the pending orders. BHEL is also directed to deposit the entire amount payable to the petitioner with the CGST Faridabad, South Division.
It is clarified that deposit made by BHEL with the said GST Authorities shall be subject to further orders to be passed by this Court.
It is clarified that this order has been passed in the peculiar facts and circumstances of the case and also because supplies are to be made to a PSU-BHEL and also the fact that non-supply is likely to affect some important projects of the State.
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2024 (4) TMI 158
Cancellation of GST registration retrospectively - erroneous order of cancellation - “non-filing of GST returns” instead of “non-filing of GST registration” - Validity of Show Cause Notice issued - HELD THAT:- We notice that the Show Cause Notice and the impugned order are bereft of any details accordingly the same cannot be sustained and 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 is 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.
It is clear that both the petitioner and the respondent want the GST registration to be cancelled, though for different reasons.
In view of the above that that Petitioner does not seek to carry on business or continue the registration, the impugned order dated 01.01.2021 is modified to the limited extent that registration shall now be treated as cancelled with effect from 06.05.2019 i.e., the date when the petitioner field an application seeking cancellation of GST registration. Petitioner shall make the necessary compliances as required by Section 29 of the Central Goods and Services Tax Act, 2017.
Petition is accordingly disposed of in the above terms.
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2024 (4) TMI 157
Cancellation Of GST registration retrospectively - Validity of Show Cause Notice and Order - No cogent reason specified in notice - No opportunity of personal hearing - HELD THAT:- We notice that the Show Cause Notice and the impugned order are bereft of any details accordingly the same cannot be sustained and 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 is 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.
It is clear that both the petitioner and the respondent want the GST registration to be cancelled, though for different reasons.
In view of the fact that Petitioner does not seek to carry on business or continue the registration, the impugned order is modified to the limited extent that registration shall now be treated as cancelled with effect from 20.09.2021 i.e., the date when the Show Cause Notice was issued. Petitioner shall make the necessary compliances as required by Section 29 of the Central Goods and Services Tax Act, 2017.
Petition is accordingly disposed of in the above terms.
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2024 (4) TMI 156
Validity of assessment notice - disallowance of carry forward ITC through GST TRAN-I filed in online towards payment of entry tax - section 140(1) of the State Goods and Services Tax Act r/w 117(1) of the State Goods and Services Tax Rules - HELD THAT:- The petitioner claims that certain materials placed by the petitioner during the enquiry were not considered by the Assessing Officer. The respondent also conceded the same. Therefore, the order impugned in this writ petition is set aside and the matter is remanded back to the file of the respondent for fresh consideration. The petitioner shall appear for enquiry before the respondent along with the required materials on 04.04.2024.
The writ petition is allowed.
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2024 (4) TMI 155
Cancellation of GST registration retrospectively - No reasons for cancellation in Show Cause Notice - Petitioner had no opportunity to even object to the retrospective cancellation of the registration - HELD THAT:- In terms of Section 29(2) of the Act, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria. Merely, because a taxpayer has not filed the returns for some period does not mean that the taxpayer’s registration is required to be cancelled with retrospective date also covering the period when the returns were filed and the taxpayer was compliant.
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 tax payer during such period. Although, we do not consider it apposite to examine this aspect but assuming that the respondent’s contention is 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. It is clear that both the petitioner and the respondent want the GST registration to be cancelled, though for different reasons.
In view of the fact that the Petitioner does not seek to carry on business or continue the registration, the impugned order dated 08.06.2022 is modified to the limited extent that that registration shall now be treated as cancelled with effect from 08.06.2022 i.e., the date of the order for cancellation of registration. Petitioner shall make all the necessary compliances as required by Section 29 of the Central Goods and Services Tax Act, 2017.
Petition is accordingly disposed of in the above terms.
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2024 (4) TMI 154
Cancellation Of GST registration retrospectively - Validity Of Show Cause Notice - Does not specify any cogent reason - Notice does not give the name or designation of the officer or place where the petitioner has to appear - Petitioner being a senior citizen could not reply to the said notice as she received the notice late - No opportunity for personal hearing - request for condonation of delay is rejected - HELD THAT:- 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. Further, the said Show Cause Notice also does not put the petitioner to notice that the registration is liable to be cancelled retrospectively. Thus, the petitioner had no opportunity to even object to the retrospective cancellation of the registration.
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, the order 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.
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2024 (4) TMI 153
Cancellation Of GST registration retrospectively - Validity of Show Cause Notice - not specify any cogent reason - No opportunity of personal hearing - demand including penalty - order has been passed under Section 73 of the Central Goods & Services Tax Act, 2017 - Petitioner not declared the correct tax liability while filing the annual returns - HELD THAT:- We notice that the Show Cause Notice dated 31.01.2023 and the impugned order dated 09.02.2023 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 may further be noticed that registration of the petitioner was cancelled retrospectively and even as per the respondent, once the registration is cancelled retrospectively with effect from 02.07.2017, petitioner would not have been able to access the online portal and as such would not have received the Show Cause Notice on 23.09.2023 which led to the passing of the impugned order dated 14.12.2023.
Thus, order dated 14.03.2024 rejecting the revocation of cancellation of GST registration and impugned order dated 09.02.2023 cannot be sustained and is accordingly set aside. The GST registration of the petitioner is restored. The 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.
Further, the impugned order dated 14.12.2023 is set aside. The matter is remitted to the Proper Officer for re-adjudication. Thus, orders dated 09.02.2023, 14.12.2023 and 14.03.2024 are set aside. Petition is allowed and disposed of in the above terms.
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2024 (4) TMI 152
Cancellation of GST registration retrospectively - Show Cause Notice does not give any reasons - Petitioner seeking to cancel its registration - HELD THAT:- Petitioner had filed an application for revocation of cancellation of registration on the ground “Due to non filling of return you have cancelled my GST registration. But reason behind my this delay is my father expired during this period and i also changed my accountant whose delayed my return”
Pursuant to order, we are informed that petitioner had appeared before the Assistant Commissioner on the date and time fixed in support of his application seeking revocation of the cancellation of registration. Learned counsel for respondent submits that certain queries have been raised which have been responded by the petitioner and accordingly no decision on the application for revocation has been taken.
Thus, this petition is disposed of directing the Proper Officer to decide the application of the petitioner seeking revocation within a period of two weeks from today.
Petition is accordingly disposed of in the above terms.
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2024 (4) TMI 151
Maintainability of petition - availability of statutory remedy of Appeal - absence of constitution of Appellate Tribunal - HELD THAT:- The petitioner is desirous of availing the statutory remedy of Appeal under the said provisions. Apparently, acknowledging the absence of constitution of Appellate Tribunal, in exercise of the power conferred under section 172 of the CGST Act, 2017, the Government of India based on the recommendation made by the G.S.T. Council, has issued Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 on 03.12.2019 - In tune with the said Removal of Difficulties Order dated 03.12.2019, the Central Board of Indirect Taxes and Customs, GST Policy Wing vide Circular No. 132/2/2020-GST Dated 18th March, 2020 has come out with the clarification in respect of appeal having regard to non-constitution of the Appellate Tribunal.
Taking into account the aforesaid Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 03.12.2019 issued by the Government of India and subsequent clarification issued by the Central Board of Indirect Taxes and Customs (GST Policy Wing) vide Circular No. 132/2/2020 dated 18th March, 2020, it is deemed proper in the interest of justice to dispose of this writ petition subject to conditions imposed - petition disposed off.
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2024 (4) TMI 150
GST registration was suspended - show cause issued as to why the registration be not cancelled - Validity of order - application seeking cancellation of GST registration was rejected - HELD THAT:- Learned counsel for the petitioner submitted that petitioner has shut all business activities. As per the petitioner he on his own found discrepancy in his return and accordingly deposited a sum.
Show cause notice dated 10.11.2023 was issued to the petitioner after a gap of 9 months seeking to cancel its registration. Said notification was issued on the ground that “Section 29(2)(e)- registration obtained by means of fraud, willful misstatement or suppression of facts”. The show cause notice required the petitioner to appear before the undersigned i.e. authority issuing the notice. Notice did not give the name or designation the officer or place where the petitioner has to appear.
Thereafter, vide show cause notice dated 10.11.2023, the registration of the petitioner was suspended w.e.f. 10.11.2023.
Thus, the order dated 10.11.2023 rejecting application of the petitioner seeking cancellation of its registration is set aside. The GST registration is cancelled with effect from 23.02.2023 i.e. the date when the petitioner first applied for cancellation of its registration. Petitioner shall, however, comply with Section 29 of the Central Goods and Services Tax Act, 2017 and furnish all the details as required by the said provisions.
The petition is accordingly disposed of in the above terms.
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2024 (4) TMI 149
Long delay in filing the revocation application - GST registration was cancelled - HELD THAT:- In that view of the matter, the delay in Petitioner’s invoking the proviso to Rule 23 of the Odisha Goods and Services Tax Rules (OGST Rules) is condoned and it is directed that subject to the Petitioner depositing all the taxes, interest, late fee, penalty etc. due and complying with other formalities, the Petitioner’s application for revocation will be considered in accordance with law.
The writ petition is disposed of in the above terms.
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2024 (4) TMI 148
Validity of show cause notice demanding tax and interest - No opportunity of personal hearing - non payment of tax due in the GSTR-1 return and claim of excess input tax credit - HELD THAT:- The appellant uploaded Ext.P3 reply in Form GST DRC-06 along with necessary attachments through the registered web portal of GST Department. The appellant specifically requested for an opportunity of personal hearing. However, it appears that the 1st respondent issued Ext.P5 order finalising the demand without referring to Ext.P3 reply or granting the appellant an opportunity for personal hearing. Thus, the impugned order clearly violates the principles of natural justice. Hence, we are of the view that Ext.P5 cannot be sustained and it is liable to be set aside.
Accordingly, we allow the appeal setting aside the impugned judgment as well as Ext.P5. The 1st respondent is directed to pass fresh order after taking into account the contentions raised by the appellant in Ext.P3 reply and after giving him an opportunity of personal hearing.
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2024 (4) TMI 147
Limitation u/s 107 of the BGST Act - Filing of Appeal before the Appellate Authority - Notification No. 53 of 2023- Central Tax - extended the time for filing appeal against an order passed by the Proper Officer - HELD THAT:- In the present case, the appeal was filed and was dismissed by the first Appellate Authority. In such circumstances, it is only proper that the appeal be restored to the files of the Authority subject to the conditions under paragraph no. 3 being satisfied. Hence the petitioner would be entitled to satisfy paragraph no. 3 of the aforesaid Notification by paying up the deficient amounts as would be required to maintain the appeal under the notification.
We specifically says the deficient amount, since on filing the appeal 10% of the amount of tax in dispute arising from the order impugned would/ought to have been remitted. We set aside the impugned order at Annexure-P/3 and direct the assessee to satisfy the aforesaid conditions before the time stipulated in Notification; i.e. 31.01.2024, in which event, the appeal would be taken up and considered on merits. And if the conditions are not satisfied, then necessarily the appeals ought to be rejected or would stand rejected.
We allow the writ petition on the above terms.
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