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GST - Case Laws
Showing 341 to 360 of 11438 Records
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2024 (3) TMI 1271 - MADRAS HIGH COURT
Exemption from GST - hostel and residential accommodation extended by the the Applicant hostel - specific tariff entry is applicable to hostels under the Tariff Notification, in the event of requirement of registration - in the event of the hostel accommodation being an exempt activity, whether the incidental activity of supply of in-house food to the inmates of the hostel would also be exempt being in the nature of a composite exempt supply or not - applicability of decision in the case of Taghar Vasudeva Ambrish -vs- Appellate Authority for Advanced Ruling, Karnataka [2022 (2) TMI 780 - KARNATAKA HIGH COURT] - Entry 12 of Exemption Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 dated 28.06.2017.
HELD THAT:- In the present case, it is not in dispute that the inmates of the respective hostels run by the petitioners are the girl students and the working women who are not registered persons and using the premises as their residence, for which, they are paying fee, which can be termed as rent and it is not the case of the respondents that the inmates are carrying on any commercial activities in the rented premises or using the same for commercial purpose. That apart, the inmates of the room also using the common kitchen and sharing the foods as their own. Admittedly, GST is not applicable if a residential property is rented out to any persons in their personal capacity and for use as their own residence.
The hostel rooms are the residential dwelling units for the girl student and working women, etc. The residential dwelling varies from person to person. As far as the homeless people are concerned, the residential dwelling will be wherever they are residing such as public roads, streets or in any other places and except the same, no other places can be provided, unless and otherwise if the Government has accommodated those people in a home, where they are maintaining the same for homeless. Therefore, when for the homeless persons, the residential dwelling will be the places wherever they are residing, where, even they do not have cooking, washing and toilet, etc., facilities by itself it does not mean that their place is not a residential dwelling - Merely because the persons are staying in hostel rooms due to their financial condition, the same will not take away the status of the said hostel room as residential dwelling for the inmates of the room, because after their avocation, they have been staying, sleeping, eating, washing, etc in the hostel rooms alone.
This Court is of the considered view that the 'hostel services' provided by the petitioners to the girl students and working women will squarely amount to the 'residential dwelling' and accordingly, the same will be squarely covered under the Entry No.12 of Exemption Notification No.12 of 2017.
The Hon'ble Supreme Court, in the case of Collector of Central Excise v. Parle Exports (P) Ltd., [1988 (11) TMI 108 - SUPREME COURT] has suggested that in interpreting the scope of any notification, the authority has first to keep in mind the object and purpose of the notification and all parts of it should be read harmoniously in aid of, and not in derogation, of that purpose.
In the present case, the imposition of GST on the Hostel accommodation should be viewed from the perspective of the recipient of service and not from the perspective of service provider. However, the 2nd respondent has dealt with the entire issue as if GST is going to be imposed on the revenue of the service provider and he is going to pay the same from and out of his pocket - the imposition of GST is only on the recipient of service and the GST is going to be collected only from the recipient of the service and not from the service provider. As far as service provider is concerned, he is collecting the GST from the recipient of the service and making deposit with the Central Government.
Imposition of GST on hostel accommodation - HELD THAT:- In order to claim exemption of GST, the nature of the end-use should be 'residential' and it cannot be decided by the nature of the property or the nature of the business of the service provider, but by the purpose for which it is used i.e. 'resident dwelling' which is exempted from GST. Therefore, this Court is of the considered view that the issue of levy of GST on residential accommodation should be viewed from the perspective of recipient of service and not from the perspective of service provider, who offers the premises on rental basis.
Thus, the renting out the hostel rooms to the girl students and working women by the petitioners is exclusively for residential purpose, this Court is of the considered view that the condition prescribed in the Notification in order to claim exemption, viz., 'residential dwelling for use as residence' has been fulfilled by the petitioners and thus the said services are covered under Entry Nos.12 and 14 of the Notification No. 12/2017-Central Tax (Rate) dated June 28, 2017, the petitioners are entitled to be exempted from levy of GST.
The impugned orders passed by the 2nd respondent are hereby set aside - Petition allowed.
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2024 (3) TMI 1270 - KERALA HIGH COURT
Refund / Reversal of excess input tax credit availed - bonafide mistake - petitioner submits that the petitioner instead of claiming the CGST/SGST claimed IGST and it was not a bonafide mistake committed by the petitioner - HELD THAT:- Section 54 read with Section 49 prescribes for refund of excess tax etc., paid by the registered dealer by moving an application within the period of two years from the last date of filing the returns for the relevant year. In the present case, the financial year is of 2017- 18 for which the due date for filing the application for correcting the mistake or claiming the refund of the IGST was 23.04.2019 - Admittedly, the petitioner did not move any application within the time prescribed and even the extended time. This Court, in exercise of its limited jurisdiction cannot amend the statute, prescribes different time limit for moving such an application and, therefore, there are no substance in this writ petition.
So far as the Judgment of the Karnataka High Court in M/s. Orient Traders v. The Deputy Commissioner of Commercial Taxes & Another [2023 (1) TMI 838 - KARNATAKA HIGH COURT] relied on by the learned Counsel for the petitioner is concerned, in the said Judgment, the statutory provisions have not been taken - The said Judgment does not have any binding precedent.
The present writ petition is hereby dismissed.
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2024 (3) TMI 1269 - JHARKHAND HIGH COURT
Violation of principles of natural justice - challenge to Summary Order passed without issuance and service of DRC-01 - opportunity of hearing to the Petitioner not afforded - HELD THAT:- Having regard to the materials produced by the petitioner, the objection raised by Mr. Ashok Kumar Yadav, the learned Senior SC-I as to maintainability of this writ petition must be rejected. This is quite a well-settled preposition that the jurisdiction of the writ petition under Article 226 of the Constitution of India is plenary in nature and without any fetters, much less any technical objection.
In WHIRLPOOL CORPORATION VERSUS REGISTRAR OF TRADE MARKS, MUMBAI & ORS. [1998 (10) TMI 510 - SUPREME COURT], the Hon’ble Supreme Court clearly indicated that in cases where the order has been passed in breach of natural justice or the Authority passing the order lacks jurisdiction the writ petition is maintainable. Even so, statutory remedy to the aggrieved party is not always a ground not to entertain the writ petition.
Having regard to the materials on record, it is opined that the matter needs to be remitted back to the State Tax Officer who shall pass an appropriate order after affording an opportunity to the petitioner-Firm to place its defence by filing his reply to the notice dated 20th September 2021. Therefore, summary order dated 9th April 2022 is quashed. The petitioner-Firm shall be at liberty to produce the materials which form part of this writ petition and any other material in support of its defence.
Petition disposed off by way of remand.
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2024 (3) TMI 1268 - TRIPURA HIGH COURT
Reversal of ineligible ITC under Section 74 of CGST Act, 2017 - mismatch between GSTR-2A and GSTR-3B submitted by the petitioner for the period 01.09.2023 till 13.09.2023 - HELD THAT:- Whether the transactions were bona fide or not and whether the selling dealer i.e. respondent No. 4 whose registration has been subsequently cancelled is responsible for non-deposit of tax leading to availment of ineligible ITC by the petitioner is not to be gone into by this Court at this stage. The scheme of the GST Act contemplates a pre-adjudication notice for which intimation under Section 74(5) of the Act of 2017 is issued in Form GST DRC-01A read with Rule 142(1A) upon the assessee/taxpayer containing the communication of details of any tax, interest and penalty chargeable upon the person under sub-section (1) of Section 73 or sub-section (1) of Section 74. This intimation is in Part A of Form GST DRC-01A.
Petitioner has not enclosed any notice indicating initiation of proceedings under Section 74(1) for wrongful availment of ITC by the proper officer, if the petitioner has not paid or short paid or erroneously refunded or wrongly availed ITC or utilized it by reason of fraud, or any wilful-misstatement or suppression of facts to evade tax - as per the scheme of Section 74(1), particularly provisions of Section 74(5) read with Rule 142 (1A) and 142 (2A), petitioner being the person referred to in the impugned notice is required to either make partial payment of the amount communicated to him or if he desires to file any submission or objection against the proposed liability, he may do so in Part B of Form GST DRC-01A.
This Court is of the considered view that petitioner may either make the necessary deposit or reverse the ineligible ITC along with interest and penalty or file his objection(s) in Part B of Form GST DRC-01A - Petition disposed off.
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2024 (3) TMI 1267 - MADRAS HIGH COURT
Validity of assessment order - breach of principles of natural justice - failure to reply to the show cause notice and participating in assessment proceedings - HELD THAT:- The petitioner responded to each of the '15' discrepancies noticed during inspection. In particular, the petitioner responded to discrepancy '11' by providing an ageing report in respect of sundry creditors. In response to discrepancy '7', the petitioner stated that revenues from Telangana, Andhra Pradesh and Kerala had been included on the basis of the audited financial statement and that such inclusion is untenable. A trial balance was also submitted. Although the petitioner should have responded to the intimation and show cause notice and availed of the opportunity of personal hearing, in the above facts and circumstances, the impugned assessment order calls for interference albeit by putting the petitioner on terms.
The impugned assessment order is quashed subject to the condition that the petitioner remits a sum of Rs. 15,00,000/- as agreed to towards the disputed tax demand within a maximum period of two weeks from the date of receipt of a copy of this order. The petitioner is also permitted to submit a reply to the show cause notice within the aforesaid period. Subject to the receipt thereof and upon being satisfied that the above mentioned sum of Rs. 15,00,000/- was received, the assessing officer is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh assessment order within a period of two months from the date of receipt of the petitioner's reply.
Petition disposed off.
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2024 (3) TMI 1266 - KARNATAKA HIGH COURT
Maintainability of appeal - time limitation - appeal dismissed as barred by limitation since the same was filed beyond the prescribed period of four months - Cancellation of GST registration of petitioner - failure to submit GST returns for a continuous period of six months - HELD THAT:- A perusal of the material on record will indicate that it is no doubt true that the appeal preferred by the petitioner before the Appellate Authority was dismissed as barred by limitation, in this context a perusal of the order of the Appellate Authority at Annexure – F dated 27.12.2023 will indicate that the merits of the claim of the petitioner for revocation of the GST cancellation has not been examined by the Appellate Authority, which has proceeded to summarily dismiss the appeal as barred by limitation - if an appeal is dismissed as barred by limitation, the order of the original authority would still remain and would not merge with the order-in-appeal and order of the original authority would be capable of being challenged under Article 226 of the Constitution of India subject to all exceptions known in law.
Merely because appeal preferred by the petitioner was dismissed by the Appellate Authority vide impugned order at Annexure – F dated 27.12.2023, it cannot be said that this Court is denuded of its power and jurisdiction to examine the claim of the petitioner under Article 226 of the Constitution of India or to examine the legality, validity and correctness of the order of the original authority under Article 226 of the Constitution of India.
Whether any indulgence is to be shown to the petitioner in the facts and circumstances of the instant case so as to enable the petitioner to seek revocation of the GST cancellation in its favour? - HELD THAT:- The petitioner is supplying food supplements to Anganwadi Centres and schools and is a society registered under the Karnataka Societies Registration Act. It is also pertinent to note that the petitioner has specifically contended that its inability and omission to file its returns within the prescribed / stipulated period was due to bona fide reasons, unavoidable circumstances and sufficient cause - matter remitted back to respondent No. 2 for consideration of the claim of the petitioner for revocation of GST cancellation after providing sufficient and reasonable opportunity to the petitioner.
Petition allowed by way of remand.
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2024 (3) TMI 1265 - BOMBAY HIGH COURT
Jurisdiction to issue SCN - Ocean Freight - contention of the petitioner is to the effect that, what has been sought to be invoked by the Designated Officer is the Notification No. 8/2017-Integrated Tax (Rate) dated 28/6/2017 in issuing the show cause notice which itself has been struck down by the Division Bench of Gujarat High Court in the case MOHIT MINERALS PVT LTD VERSUS UNION OF INDIA & 1 OTHER [2020 (1) TMI 974 - GUJARAT HIGH COURT] - HELD THAT:- In Mohit Minerals the petitioner’s case before the High Court of Gujarat was a case where the petitioner was importing coal from various countries on FOB (Free on Board) and CIF (sum of Cost, Insurance and Freight) basis, as clearly set out in paragraph 15 of the said decision.
This Court had an occasion to consider a similar case in Liberty Oil Mills Vs. Union of India [2023 (2) TMI 177 - BOMBAY HIGH COURT], where a challenge akin to the challenge in the present proceedings, was made to the show cause notice dated 31 March 2019 calling upon the petitioner to show cause as to why Integrated Goods and Service Tax may not be recovered under Section 74(1) of the Central Goods and Services Act, 2017 (for short ‘CGST Act’) alongwith interest and penalty on the ocean trade service. This Court following the decision of the High Court of Gujarat in Mohit Minerals (supra) as also the decision of the Supreme Court in Union of India Vs. Mohit Minerals Pvt. Ltd. [2020 (1) TMI 974 - GUJARAT HIGH COURT] allowed the petitioner’s proceedings, setting aside the show cause notice.
The present petition also needs to be allowed considering the decision in the case of Mohit Minerals.
Also, a submission being made on behalf of the respondent is noted namely that the decision in Mohit Minerals needs to be applied only in respect of the cases which involve the contracts on CIF basis and not FOB contracts. It is submitted that in the present case the show cause notice has been issued referring to Notification No. 8/2017-Integrated Tax (Rate) dated 28-6-2017 as the contract was a FOB contract. It is found that such argument is totally untenable inasmuch as the case in Mohit Minerals before the High Court of Gujarat, was a case which involved both categories of contract namely CIF and FOB, which was noted in paragraph 57 of the judgment of the High Court of Gujarat.
Petition allowed.
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2024 (3) TMI 1264 - MADRAS HIGH COURT
Violation of principles of natural justice - denial of Input Tax Credit (ITC) erroneously - non-application of mind - The supplier made a mistake by filing the return in Form GSTR-1 by specifying total integrated tax (IGST) as zero in the relevant column - HELD THAT:- The petitioner has placed on record sample invoices pertaining to the purchases made from the supplier in West Bengal. The petitioner has also placed on record the Forms GSTR-1 and GSTR-3B of the supplier. These returns pertain to August 2017. On comparing the two returns, it is evident that the contention of learned counsel for the petitioner that an error was committed while filing Form GSTR-1 appears to be prima facie correct. At the end of the day, if the supply received by a registered person is genuine and taxes were paid in respect thereof by such supplier, there is no reason to deny the benefit of ITC to the registered person in the next leg of the transaction.
The assessing officer was of the view that the tax paid by the supplier reached the respective states without reaching the Tamil Nadu State exchequer. The documents on record prima facie indicate that the SGST component reached the State of Tamil Nadu. Therefore, the impugned order cannot be sustained.
The impugned order is quashed and the matter is remanded to the assessing officer for re-consideration - Appeal disposed off by way of remand.
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2024 (3) TMI 1263 - CALCUTTA HIGH COURT
Seeking lifting of attachment of bank account - time limitation - Availment of input tax credit in excess of entitlement - HELD THAT:- It will be beneficial to take note of the decisions passed in the cases of Badal Shambhubhai Shah vs. Directorate General of Goods and Service Tax Intelligence [2020 (3) TMI 617 - GUJARAT HIGH COURT] and M/s. Futurist Innovation & Advertising vs. Union of India & Ors. [2022 (1) TMI 698 - BOMBAY HIGH COURT] wherein direction was issued to the competent authority to lift the attachment over the bank account wherein the period of one year had elapsed.
In the present case the same principle has to be applied to the appellant. Accordingly, the writ petition and the appeal along with the connected application are allowed with a direction to the authority concerned to lift the garnishee order dated 20th July, 2022 by addressing the Indian Oil Corporation and also lift the attachment over the appellant’s bank account by addressing his bankers.
Appeal allowed.
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2024 (3) TMI 1262 - APPELLATE AUTHORITY FOR ADVANCE RULING, RAJASTHAN
Maintainability of appeal - time limitation - whether the appeal has been filed within stipulated period (i.e. thirty days from the date on which the Ruling sought to be appealed against is communicated to the Appellant) prescribed under Section 100 (2) of CGST Act, 2017 or not? - HELD THAT:- As the Appellant, the date of communication of the Order of AAR, Rajasthan to the Appellant was 21.09.2021 and the appeal was filed on the portal on 19.10.2021 - the Appellant have filed the appeal within statutory period of 30 days of date of communication of the Order of the AAR.
Classification of service - activity undertaken by the Appellant by way of supply, survey, designing, installation and commissioning of project under EPC contract - whether the activities undertaken by them are were classifiable either under SAC Heading No. 9986 eligible for rate of tax prescribed vide entry serial number 24(ii) or alternatively under SAC Heading No. 9983 eligible for rate of tax prescribed vide entry serial number 21(ia) of Notification No. 11/2017-CT(R), dated 28.06.2017? or is classifiable under SAC Heading No. 9954? - HELD THAT:- The service in question has to be in the nature of support to the main activity which is that of oil and gas extraction. There is no denying the fact that the activity of oil and gas extraction can be undertaken by using the infrastructure which is already in place. It, therefore, follows that there are three distinct successive stages in the entire gamut of oil and gas extraction which contribute to completion of the work of oil and gas extraction. For the services to be eligible to classification under the instant SAC Heading No. 998621, it is required that the service should support the main activity of oil and gas extraction by the infrastructure put in place for the purpose.
From the detailed scope of work as mentioned in the EPC Contract, brief extracts of which have been reproduced above, we observe that M/s Vedanta Limited has planned to undertake major expansion in their production and processing capacity with consequent increase proposed in the sales and the instant EPC Contract has been awarded to the Appellant with mandate to establish the required infrastructure for the expansion proposed. Augmentation of Liquid handling capacity, augmentation of produced water treatment facility, augmenting existing injection water system facility are indicative of the fact that new facilities, in addition to the existing facilities, are being created by M/s Vedanta Limited for enhancement of oil and gas production and sales.
The Appellant are Obliged by the contract for satisfactory handover of complete enhancing liquid handling capacity including Non Process Buildings, including roads and drains within MPT Pipeline and approach roads to M/s Vedanta Limited. complete with applicable hook-up & tie-in with the existing & proposed facilities. This provision of the contract makes it amply clear that the Appellant have been assigned the work of establishment of new facilities for oil and natural gas extraction alongside the already existing facilities at the MPT.
Coming to the proposed classification under Heading 998621 it is observed that the said heading covers 'support services to oil and gas extraction' which is self explanatory in as much as the services proposed to be classified under this heading provide support to the main activity of oil and gas extraction and such activity of extraction eventually requires the infrastructure facilities established. These three parts of the entire gamut of oil and gas extraction are clearly distinguished from each other.
Since, the Appellant have been tasked with establishment of infrastructure facilities for oil and gas extraction, the activities undertaken by the Appellant in pursuance of the EPC Contract cannot, by any stretch of imagination, be said to be support services to oil and gas extraction. The distinction between the activities undertaken by the Appellant in terms of the EPC contract and the activities included in the definition of SAC Heading No. 998621 is strikingly clear. Therefore the activities undertaken by the Appellant in pursuance of the EPC Contract cannot be classified under SAC Heading No. 998621 as these are not in the nature of support services to oil and gas extraction.
SAC Heading No 9954 of the Scheme of Classification covers the overall construction services with SAC Heading No. 995425 the general construction services of mines and industrial plants. The explanatory notes clarify that the said service code includes construction services for mining and related facilities associated with mining operations. Since, oil and gas exploration is also a form of mining; therefore, the construction services proposed to be supplied by the Appellant for constructing facilities for handling the increased production capacity are appropriately classifiable under the SAC Heading No. 9954 - so far as classification of the supplies proposed to be undertaken by the Appellant are concerned, the composite supply in the instant cases shall be treated as supply of service defined as works contract and the pronouncement of the AAR, therefore, needs no interference up to that extent.
As already observed by us, entry Sl. No. 3(ii) of Notification No. 11/2017-CT (R), dated 28.06.2017 was omitted with effect from 01.04.2019 and, therefore, the supplies proposed to be undertaken by the Appellant could not have been eligible for the rate prescribed therein. However, it is observed that up to Notification No. 3/2019- CT (R), dated 29.03.2019, major changes have been made in the said entry under Sl. No. 3 of the basic Notification No. 11/2017-CT (R), dated 28.06.2017 to provide for different rates of tax for supplies under the categories of supply of construction services or supply of works contract services.
As regards the classification of the impugned services, it is held that the Impugned services of project management consultancy services provided the Appellant would merit classification under the SAC 998349 bearing description "Other technical and scientific services nowhere else classified, attracting GST at the rate of 18%.
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2024 (3) TMI 1221 - CHHATTISGARH HIGH COURT
Seeking grant of regular bail u/s 439 of CrPC - Offence punishable u/s 132(1)(i)(i) of GST Act - GST registration was either suspended or cancelled - bogus purchasers - invoice of none existing suppliers - HELD THAT:- The fact that the compliant has been filed and further investigation which was pending in pursuance of the complaint has also been completed and the applicant has no previous criminal antecedents and as the complaint has already been submitted, there is no chances of tampering with the evidences and further that the applicant is in jail since 05.11.2023, I am of the opinion that the applicant is entitled to be released on bail in this case without commenting on the merits of the case.
However, this Court hopes and trusts that the trial Court shall make earnest endeavour to conclude the trial as expeditiously as possible, if there is no legal impediment.
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2024 (3) TMI 1220 - TELANGANA HIGH COURT
Seeking to revoke the cancellation of GST registration - which was accepted by the portal and was also issued a Form DRC-03 under Rule 142(2) and 142(3) of the GST Rules, 2017 but has not issued any DRC-03 - Petitioning university paid the taxes - HELD THAT:- Learned counsel for the petitioner, today, undertakes that the petitioner shall move an application for revocation within a period of two weeks from today. Though, it is beyond the prescribed time limit u/s 30 of the Act, the petitioner is willing to pay whatever late fee/penalty be imposed for the delay in submission of the returns, and the respondents, upon such receipt of application from the petitioner, shall immediately revoke the cancellation of registration.
Given the said factual matrix of the case as also the judicial pronouncements that are referred to in the preceding paragraphs, if the default on the part of the petitioner is only so far as non-furnishing of the returns, we are of the considered opinion that subject to the petitioner making good the default, the said GST registration of the petitioner-university would get restored which would enable the petitioner to process the affiliation proceedings in respect of the various colleges under the petitioner-university, which would also generate GST revenue to the respondent authorities as well.
Thus, this Writ Petition stands allowed.
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2024 (3) TMI 1219 - MADRAS HIGH COURT
Validity Of Show cause notice - No reasonable opportunity provided - tax demand as a condition for remand - HELD THAT:- On examining the show cause notice and impugned order, it is clear that the entire tax liability is with regard to disparity between the GSTR-3B and GSTR-2B returns. The petitioner has, albeit subsequent to the issuance of such order, explained that ITC was validly availed of by submitting documents in support thereof. Undoubtedly, the petitioner was negligent in not doing so upon receipt of the intimation and show cause notice. Nonetheless, if the explanation of the petitioner is valid, the interest of justice would be prejudiced unless the petitioner is provided an opportunity to explain the alleged disparity.
Thus, albeit by putting the petitioner on terms, the impugned order calls for interference. Therefore, the impugned order is quashed subject to the condition that the petitioner remits 10% of the disputed tax demand as agreed to within a maximum period of two weeks from the date of receipt of a copy of this order.
W.P. is disposed of on the above terms.
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2024 (3) TMI 1218 - MADRAS HIGH COURT
Validity of Tax demand - Non consideration of reply submitted by the petitioner / assessee - works contractor and registered dealer under applicable GST enactments - Pre-deposit - HELD THAT:- The petitioner's reply has been placed on record. Although such reply is terse, the petitioner requested for two months' time to reply by citing the pending proceedings at the instance of the central GST authorities. The petitioner also pointed out that a deposit of Rs. 1,50,00,000/- was made with regard to three assessment periods. Thus, the petitioner's reply was not taken into account and the petitioner was not provided time as requested in the said reply. In these circumstances, albeit by putting the petitioner on terms, the petitioner should be provided another opportunity.
Therefore, the orders impugned herein are quashed. Since the bank account of the petitioner was attached pursuant to a communication from the respondent to the Bank, the respondent is directed to appropriate 10% of the disputed tax demand in respect of each assessment year from such bank account. The petitioner is permitted to submit a reply to the show cause notice within a period of three weeks from the date of receipt of a copy of this order.
These writ petitions are disposed of on the above terms.
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2024 (3) TMI 1217 - BOMBAY HIGH COURT
Assailing the order-in-original passed by the Commissioner - Violation of Principles of natural justice - HELD THAT:- We are of the clear opinion that the respondent before passing the impugned order, ought to have adopted the procedure not only to serve the show cause notice in the manner known to law, but also grant a fair and sufficient opportunity to the petitioner by issuing appropriate notices and only after granting an opportunity of a hearing and placing of all materials on record, an endeavour should have been made to pass appropriate orders. The principles of law in this regard are well settled. Thus, as the impugned order is passed in breach of the principles of natural justice, the same cannot be sustained.
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2024 (3) TMI 1216 - MADRAS HIGH COURT
Proper officer - Jurisdiction of Initiate investigation proceedings by the Central GST and State GST authorities simultaneously - Absence of a proper Notification u/s 6 of the respective GST Enactments for cross-empowerment - Challenged the Jurisdiction of Central Authorities - Whether the petitioners who are assigned to either the Central Tax Authorities or the State Tax Authorities under respective Central Goods and Services Tax Act, 2017 (CGST Act, 2017) and/or Tamil Nadu Goods and Services Tax Act, 2017 (TNGST Act, 2017) can be subjected to investigation and further proceeding by the counterparts under the respective GST Enactments - Validity of notices issued under Sections 62 & 67 of the TNGST Act, 2017 and orders passed u/s 73 and 74 of the TNGST Act, 2017 -
HELD THAT:- The returns to be filed by the Assessee's under the respective GST Enactments are same. They capture all the details under the respective GST Enactments applicable to an assessee. The returns are to be filed in the common portal as defined in Section 2(26) of the respective GST Enactments. As per Section 2(26) of the respective GST Enactments “Common portal” means the common goods and services tax electronic portal referred to in Section 146.
That apart, the payment of tax whether under the CGST Act, 2017 or under TNGST Act, 2017 are at the same rate. The only difference that may arise at the time of payment of tax due to utilization of the Input Tax Credit (ITC) availed on the inward supplies and their cross utilization for discharging the tax liability in terms of Chapter-X of the respective GST Enactments r/w Chapter-IX of the respective GST Rules, 2017.
As per Section 49A of the CGST Act, 2017, Input Tax Credit availed on account of Central Tax, State Tax or Union Territory Tax can be utilized towards payment of Integrated Tax, Central Tax, State Tax or the Union Territory Tax as the case may be, only after the Input Tax Credit available on account of Integrated Tax Credit has been first available on such cases. Section 49A of the CGST Act, which was inserted with effect from 01.02.2019 and notified vide Notification No.2/2019-CT 29/1-2019 as amended by GST (Amendment) Act 2018 (31 of 2018) has to be read in conjunction with Rules 88 A of the CGST Rules, 2017 as inserted by Notification No.16/2019-CT.
A similar provision is absent under the TNGST Act, 2017 and TNGST Rules 2017.
As per Section 88A of the TNGST Rules, 2017, Input tax credit on account of integrated tax shall first be utilised towards payment of integrated tax, and the amount remaining, if any, may be utilised towards the payment of central tax and State tax or Union territory tax, as the case may be, in any order. Provided that the input tax credit on account of central tax, State tax or Union territory tax shall be utilised towards payment of integrated tax, central tax, State tax or Union territory tax, as the case may be, only after the input tax credit available on account of integrated tax has first been utilised fully.
Under Section 3 of the respective Central and State GST Enactments of 2017, both the Central Government and the State Government have appointed a “class of officers” for the purpose of enforcement of the respective GST Enactments of 2017. Apart from the officers mentioned u/s 4(1) of the respective Central GST Act, 2017 and TNGST Act, 2017, the Board (the Central Board of Indirect Taxes and Customs [CBIC]) as defined in Section 2(16) of the CGST Act, 2017 and the Government as defined in Section 2(53) of TNGST Act, 2017, can appoint such officers as they may deem fit to be the officers under these GST Enactments.
Thus, the Board can authorize any officer referred to in clauses (a) to (h) of Section 3 of CGST Act, 2017 to appoint any officers of the Central Tax below the rank of Assistant Commissioner of Central Tax to be the Central Tax Officer for the administration of the CGST Act, 2017 alone. Thus, u/s 4(2) of the CGST Act, 2017, these can be only a linear delegation.
Under Section 4(2) of the TNGST Act, 2017, all other officers shall have jurisdiction over the whole of the State or over such local areas as the Commissioner may, by an order, specify, in respect of all or any of the functions assigned to them, subject to such conditions as may be specified. Thus, the Commissioner has power to delegate powers under the Act to other Officer specified in Sub-clause (c) to (f) to Section 3 of the TNGST Act, 2017. There is no cross-empowerment u/s 4(2) of the TNGST Act, 2017.
Thus, neither the Board u/s 4(1) and (2) of CGST Act, 2017 nor the Government and/or the Commissioner u/s 4(1) and (2) of SGST Act, 2017 can appoint such officers in addition to the officer notified under Section 3 of the respective Act. Thus, the Board can appoint and delegate only to Central Tax Officers appointed under the CGST Act, 2017 for CGST Act, 2017 and the Government and/or the Commissioner can appoint and delegate only to State Tax Officers appointed under the TNGST Act, 2017 for TNGST Act, 2017.
These provisions are pari materia with Section 4 of the Customs Act, 1962 and Section 12(E) of the Central Excise Act, 1944.
Section 6(1) of the respective GST Enactments empowers Government to issue notification on the recommendation of GST Council for cross-empowerment. However, no notification has been issued except u/s 6(1) of the respective GST Enactments for the purpose of refund although officers from the Central GST and State GST are proper officers under the respective GST Enactments.
Since, no notifications have been issued for cross-empowerment with advise of GST Council, except for the purpose of refund of tax under Chapter-XI of the respective GST Enactments r/w Chapter X of the respective GST Rules, impugned proceedings are to be held without jurisdiction. Consequently, the impugned proceedings are liable to be interfered in these writ petitions.
Thus, if an assessee has been assigned administratively with the Central Authorities, pursuant to the decision taken by the GST Council as notified by Circular No.01/2017 bearing Reference F.No.166/Cross Empowerment/GSTC/2017, the State Authorities have no jurisdiction to interfere with the assessment proceedings in absence of a corresponding Notification u/s 6 of the respective GST Enactments.
Similarly, if an assessee has been assigned to the State Authorities, pursuant to the decision taken by the GST Council as notified by Circular No.01/2017 bearing Reference F.No.166/Cross Empowerment/GSTC/2017, the officers of the Central GST cannot interfere although they may have such intelligence regarding the alleged violation of the Acts and Rules by an assessee.
The manner in which the provisions have been designed are to ensure that there is no cross interference by the counterparts. Only exception provided is u/s 6 of the respective GST enactement. Therefore, in absence of a notification for cross-empowerment, the action taken by the respondents are without jurisdiction. Officers under the State or Central Tax Administration as the case may be cannot usurp the power of investigation or adjudication of an assesse who is not assigned to them.
Therefore, the proceedings initiated by the respondents so far against the respective petitioners by the Authorities other than the Authority to whom they have been assigned to are to be held as without jurisdiction. Therefore, the impugned proceedings warrants interference.
At the same time, it is noticed that there is possibly case made out against each of the petitioners and since same power ought to have been exercised by the respective counterparts of the respondents, namely the Central Authority/State Authority as the case may be, to whom the respective petitioners have been assigned, proceedings should be initiated against each of the petitioners by the Authority to whom they have been assigned for the purported loss of Revenue under the respective GST Enactments.
Therefore, while quashing the impugned proceedings, there shall be a direction to the Central Authority/State Authority as the case may be to whom the respective petitioners have been assigned for administrative purpose to initiate appropriate proceedings afresh against them strictly in accordance with the provisions of the respective GST Enactments and GST Enactments Rules and Circular issued thereunder. The time between the initiation of the proceedings impugned in these writ petitions and time during the pendency of the present writ petitions till the date of receipt of this order shall stand excluded for the purpose of computation of limitation.
These writ petitions are disposed with the above observations.
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2024 (3) TMI 1215 - BOMBAY HIGH COURT
Seeking refund of amount deposited - department coerced to deposit the tax amounts - whether it is genuinely a coercion or it was a voluntary deposit - HELD THAT:- At the outset, it needs to be noted that the petitioner is a legal person, it is described to be a company registered under the Companies Act, 1956. As a legal person, the petitioner certainly cannot be physically coerced. The question is which of the representatives of the petitioner or its officers who were incharge of the day to day affairs of the petitioner, whether were coerced into such act. This is certainly a question of fact.
It appears that not only the petitioner decided to voluntarily deposit an amount of Rs. 2,50,00,000/-, but also, agreed that the “balance tax payment scheduled” would be made within 10 days. It also appears that the search and seizure operations revealed that an amount of more than Rs. 5 crores was due and payable towards the outstanding tax which was very well realized by the petitioner. Thus, the case of the petitioner in the present facts, in regard to any coercion or allegation of any criminal act against the respondent cannot be accepted, not only on account of the petitioner’s letter dated 13 October 2022, addressed by the petitioner to respondent No. 1, but also on the petitioner’s own conduct which does not inspire any confidence for the writ Court to accept such contention.
In our opinion, in reality or genuinely if the petitioner was to be coerced, as a prudent legal person would resort, the petitioner could have made complaints and/or representation on such actions of the officers, which in law can certainly be regarded as highhanded and illegal. However, the petitioner did not even whisper anything of such kind, in the several letters addressed to the authorities including in answering the summons, to say that such amount was recovered by the department under coercion, much less to raise the same before the appropriate police authorities. Hence, a case of such nature being directly made out in the writ petition de hors any material to that effect would not give any impetus to the petitioner’s case of any coercion by the department. In this view of the matter, such factual dispute as to whether any coercive methods were adopted by the respondents and that such amounts were deposited under duress and coercion certainly cannot be conclusively ascertained and/or gone into in the proceedings of a writ petition under Article 226 of the Constitution.
In the present case, it appears that several summonses were issued to the petitioner and that the investigation is in progress, it therefore, appears that the show cause notice, is yet not issued. It is in these circumstances, the petitioner by approaching this Court, for the first time, has made a grievance of a coercive recovery, which in our opinion, cannot be accepted.
We may also observe that when an assessee comes before the Court invoking jurisdiction under Article 226 of the Constitution and that too making a serious grievance that the department had coerced the assessee to deposit the tax amounts, certainly as to whether it is genuinely a coercion or whether it was a voluntary deposit, as seen in the present case, is purely a disputed question of fact. Such question cannot be gone into and appreciated in the proceedings under Article 226 of the Constitution.
As a result of the discussion, in our opinion, the petition is thoroughly misconceived. It is accordingly, rejected.
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2024 (3) TMI 1214 - DELHI HIGH COURT
Seeks to refund the GST - deposited against the non-migrated GST - HELD THAT:- Learned counsel appearing for the respondent submits that there is no provision available in the GST portal for transfer of the credit from one GST number to another. He however concedes that the petitioner did not opt for the migration of the service tax registration and the system automatically created a GST number (i.e. the non-migrated GST number).
We direct that the amount standing to the credit of the non-migrated GST number be transferred to the migrated GST number of the petitioner. The petition is disposed of in the above terms.
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2024 (3) TMI 1213 - CALCUTTA HIGH COURT
Availment of wrongful credit - bonafide mistake - appellants entered the amount in a wrong table due to technical misunderstanding, as a result of which, the credit of Rs. 46,91,982/- was credited to the CGST account - consistent case of the appellants is that they would fall under Entry 7B and inadvertently the TRAN-1 was filed under Entry 7A and the appellants explained that since they are not registered under the Central Excise Act, they are required to file TRAN-1 under Entry 7B - HELD THAT:- The question would be as to whether on account of such a technical error which undoubtedly is an inadvertent error can the appellants be denied the transitional credit. This issue is no longer res integra and has been considered by several courts as well as this court in a batch of cases in MAT 552 of 2020. More or less an identical issue arose for consideration and the court considered the various orders passed by the other High Courts and disposed of the appeals by permitting the writ petitioners therein to file individual tax credit in GSTR-3B Forms for the relevant months and the assessing officer was at liberty to verify the genuineness of the claim. We are informed that the judgment [2021 (12) TMI 835 - CALCUTTA HIGH COURT]. batch has been given effect to. More recently in the case of S.V. Halavagali and Sons v. Superintendent of Central Excise [2023 (11) TMI 1013 - KARNATAKA HIGH COURT] an identical issue arose for consideration before the court.
In the said case also there was an inadvertent error and the credit was filed under wrong head i.e. 7(d) instead of 7(b). The court after taking into consideration the various orders passed by the other High Courts directed the authorities to consider the claim of the petitioners therein under Column 7(b) of the CGST Rules, 2017 and if there are supporting documents to make the claim and the claim is established, then consequential relief should be allowed.
Earlier similar issue was considered in the case of M/S. G&C INFRA INNOVATIONS VERSUS UNION OF INDIA THE COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, KERALA, THE GST COUNCIL, THE PRINCIPAL COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE, KOCHI GOODS & SERVICES TAX NETWORK, THE NODAL OFFICER, AND OTHERS [2022 (5) TMI 694 - KERALA HIGH COURT] wherein the court took note of the fact that after the GST regime came into force the period between 2017 and 2020 ought to be regarded as the nascent period of legislation and admittedly several glitches occurred even from the part of the department. Further, it was pointed out that the courts have repeatedly held that the said period as a trial and error phase as far as implementation of the statute was concerned and the taxpayers were also in a state of confusion, during the relevant period.
Thus, taking note of the law and the subject as well as the facts of the case, it is a fit case where directions should be issued to the authorities to enable the appellants to rectify the mistake and submit GST TRAN-1 under heading 7B of Table 7(a) of Form GST TRAN-1 and the appellants are directed to comply with the same within three weeks from the date of receipt of the server copy of this order after which the adjudicating authority is directed to verify the same and if admissible, extend the transitional credit to the appellants.
The Nodal Officer of IT Grievance Redressal Mechanism, Kolkata CGST & CX Zone is directed to take note of the direction issued in this judgment and order and facilitate the filing of the TRAN-1 and TRAN-2 by the appellants by rectifying the mistake - In the event such rectification is not possible electronically, the appellants shall be given an option to do so manually.
Appeal disposed off.
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2024 (3) TMI 1212 - CALCUTTA HIGH COURT
Petition for the relief - additional tax liability for execution of subsisting Government contracts either awarded in the pre-GST regime or in the post-GST regime - without updating the Schedule of Rates (SOR) incorporating the applicable GST while preparing Bill of Quantities (BOQ) for inviting the bids - HELD THAT:- Petitioner has also prayed for relief of issuance of direction upon the respondents authority concerned to neutralize the impact of unforeseen additional tax burden on Government contracts since the introduction of GST w.e.f. 1st July, 2017 for ongoing contract awarded before the said date and to update the State SOR incorporating applicable GST in lieu of inapplicable West Bengal VAT henceforth.
Considering the submissions of the parties this writ petition is disposed of by giving liberty to the petitioner to file appropriate representation in the aforesaid regard as referred in preceding of this order, before the Additional Chief Secretary, Finance Department, Government of West Bengal within four weeks from date.
It is also recorded that the Additional Chief Secretary, while taking decision on the representation to be filed by the petitioner shall act in accordance with law and pass a reasoned and speaking order on merit and after considering all the judgments of different High Courts upon which petitioners intend to rely. With this observation and direction this writ petition being WPA is disposed of.
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