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GST - Case Laws
Showing 381 to 400 of 16293 Records
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2025 (5) TMI 2070
Challenge to assessment order - proceedings did not contain a DIN number - HELD THAT:- The question of the effect of non-inclusion of DIN number on proceedings, under the G.S.T. Act, came to be considered by the Hon’ble Supreme Court in the case of Pradeep Goyal Vs. Union of India & Ors [2022 (8) TMI 216 - SUPREME COURT]. The Hon’ble Supreme Court, after noticing the provisions of the Act and the circular issued by the Central Board of Indirect Taxes and Customs (C.B.I.C.), had held that an order, which does not contain a DIN number would be non-est and invalid.
A Division Bench of this Court in the case of M/s. Cluster Enterprises Vs. The Deputyssistant Commissioner (ST)-2, Kadapa [2024 (7) TMI 1512 - ANDHRA PRADESH HIGH COURT], on the basis of the circular, dated 23.12.2019, bearing No.128/47/2019-GST, issued by the C.B.I.C., had held that non-mention of a DIN number would mitigate against the validity of such proceedings. Another Division Bench of this Court in the case of Sai Manikanta Electrical Contractors Vs. The Deputy Commissioner, Special Circle, Visakhapatnam [2024 (6) TMI 1158 - ANDHRA PRADESH HIGH COURT], had also held that non-mention of a DIN number would require the order to be set aside.
In view of the aforesaid judgments and the circular issued by the C.B.I.C., the non-mention of a DIN number in the order, which was uploaded in the portal, requires the impugned order to be set aside.
This Writ Petition is disposed of, setting aside the impugned proceedings, dated 07.10.2024, issued by the 1st respondent, with liberty to the 1st respondent to conduct fresh assessment, after giving notice to the petitioner and assigning a DIN number to the said order.
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2025 (5) TMI 2069
Challenge to order passed u/s 74 of the GST Act as well as the order - no opportunity of hearing granted - violation of principles of natural justice - HELD THAT:- Considering the impugned orders dated 31.10.2023 & 24.12.2024 orders which prmia-facie do not grant any opportunity of hearing, which is mandatory in terms of Section 75(4) of GST Act and the issue raised is squarely covered by the judgment in the case of Ola Fleet Technologies Private Limited [2024 (7) TMI 1543 - ALLAHABAD HIGH COURT], the same are quashed.
Matter is remanded to the assessing authority to pass fresh order after giving an opportunity of hearing to the petitioner - Petition allowed by way of remand.
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2025 (5) TMI 2068
Justification of passing of the rectification order on the basis of verification report - HELD THAT:- Considering the affidavit-in-reply dated 14/04/2025, it is deemed fit to impose a token cost of Rs.1,00,000/- upon the respondents department to be deposited before the Gujarat State Legal Services Authority within a period of four weeks from today.
The petition is disposed of as per order dated 02/04/2025.
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2025 (5) TMI 2067
Seeking direction to the respondents to grant registration w.e.f. 01.07.2017 instead of 31.05.2018 - failure to apply u/s 24(2) in Form GST REG-26 registration - HELD THAT:- Rule 24(3) provides that in case of non-furnishing of information as required under Rule 24(2) or incomplete or incorrect information having been furnished, the provisional certificate granted shall be cancelled by the proper officer after providing reasonable opportunity of hearing to the person - In the case in hand, the petitioner was issued provisional registration certificate and till date it has not been cancelled by invoking Rule 24(3) of the CGST Rules. The petitioner on a wrong advice received, kept on sending reminders for issuance of regular registration and instead of filing an application under Rule 24(2) applied for fresh registration under rule 10 of CGST Rules.
The eligibility of the petitioner for registration under the GST Act is not in dispute. The issue is only with regard to the intervening period of 01.07.2017 to 30.05.2018, which is due to filing an application in a wrong form by the petitioner - It cannot be lost sight of that under Rule 24(2) of the CGST Rules, the Commissioner has power to extend the period beyond three months for filing an application under Rule 24(2) of the Rules.
The matter is disposed of with liberty to the petitioner to file an application in Form GST REG-26 accompanied by an application seeking prayer for condoning the delay.
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2025 (5) TMI 2066
Challenge to order of assessment issued by the fifth respondent - eligible Input Tax Credit was, by mistake, claimed under different heads - HELD THAT:- In the decision in Rejimon Padickapparambil Alex v. Union of India and Others [[2024 (12) TMI 399 - KERALA HIGH COURT]], a Division Bench of this Court had observed that the electronic credit ledger is in the nature of a wallet with different compartments of Integrated Goods and Services Tax, Central Goods and Services Tax and State Goods and Services Tax and there cannot be any wrong availing of Input Tax Credit merely because a taxpayer had availed the benefit of credit of input tax available in one compartment under the other. It has also been observed, after referring to Circular No. 192/04/2023-GST that, the Input Tax Credit available in the electronic credit ledger should be considered as a pool of funds designated for different types of taxes, such as CGST, IGST and SGST. Relying upon the circular, it is also observed that for utilizing the IGST liability, the eligibility of the fund for payment is based on the total balance in the entire wallet and not just the IGST compartment. It is thereafter held that the GST system treats the electronic credit ledger as a unified resource, and interest is incurred if collectively the available funds fall below the amount of wrongly availed credit during the specified period.
The aforesaid proposition of law clarifies the legal scenario relating to the utilisation of Input Tax Credit under the different compartments available in the electronic credit ledger. The said proposition has a bearing in the instant case. However, since the assessing officer as well as the Appellate Authority has proceeded on the basis that such availment under any count is legally not justified, the impugned orders are liable to be set aside and a reconsideration be directed.
Conclusion - Since the assessing and appellate authorities had erred in rejecting the ITC claim on the basis that availment under any head was legally unjustified, the Court set aside the impugned orders and directed the fifth respondent to reconsider the matter afresh within three months.
Petition allowed by way of remand.
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2025 (5) TMI 2065
Challenge to assessment order - Wrong availment of input tax credit - HELD THAT:- Petitioner has already challenged the order of assessment before the Appellate Authority, and the same is pending from 07.11.2024. In Exhibit-P4 judgment, this Court set aside the assessment order despite the pendency of the appeal in view of the exceptional circumstances in that case as the appeal had been pending consideration for more than eight months. In the instant case, petitioner’s appeal was filed only on 07.11.2024, and therefore, that can be attributed to the Appellate Authority. The contention now taken before this Court can certainly be considered by the Appellate Authority and the petitioner would not be put to any prejudice. Invocation of Article 226 of the Constitution of India at this juncture is not warranted.
However, since petitioner apprehends that the appeal will not be disposed of immediately and the Appellate Authority may take its own sweet time to dispose of the matter, it is deemed appropriate to direct the appeal to be considered and disposed of in a time bound manner.
Petition disposed off.
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2025 (5) TMI 1985
Legality of the Circular dated 18th November, 2019 - HELD THAT:- The subject-matter of these Appeals are remanded to the High Court of Jharkhand at Ranchi only for the limited purposes of considering the prayer.
The remanded Petitions shall be listed before the roster Bench of the High Court on 25th July, 2025 when the parties, who are represented today, shall remain present before the roster Bench. No further notice shall be served upon them.
Appeal partly allowed.
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2025 (5) TMI 1984
Non-service of notice - violation of principles of natural justice - HELD THAT:- Prima facie, it appears that a specific notice under Section 73(1)/74(1) of the Central Goods and Services Tax Act, 2017 was not served upon the petitioner.
Issue notice, returnable after eight weeks.
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2025 (5) TMI 1983
Witholding of Refund claim - Whether the Department can withhold the refund sanctioned by the Appellate Authority u/s 54(11) of the CGST Act on the ground that grant of refund is likely to adversely affect the revenue due to alleged malfeasance or fraud? - HELD THAT:- The position under Section 54 (11) of the CGST Act, 2017 has been recently considered by this Court in Shalender Kumar v. Commissioner Central Goods and Services Tax Delhi West & Ors. [2025 (4) TMI 555 - DELHI HIGH COURT] wherein the Court observed 'In the opinion of this Court the Department’s opinion under Section 54 (11) cannot be relied upon on a standalone basis. In the absence of an appeal or any other proceeding pending, challenging the order of the Appellate Authority, the opinion under Section 54 (11) cannot result in holding back the refund. The refund having been permitted by the Appellate Authority and no order in review having been passed, the Department cannot hold back the refund.'
In view of the above settled legal position, under Section 54 (11) of the CGST Act, that the opinion of the Department cannot be relied upon on a stand-alone basis, without any challenge to the order by the Appellate authority, it is directed that the refund amount be released in favour of the Petitioner along with the statutory interest. The Petitioner is free to file an application if the refund amount is not credited by 10th July 2025.
Petition disposed off.
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2025 (5) TMI 1982
Wrongful availment of Input Tax Credit (ITC) - overvaluation of goods to claim export incentives - an earlier SCN concerning the same transaction between the Petitioner and another entity had already been adjudicated and set aside on appeal - HELD THAT:- The Court is of the opinion that there cannot be a comparison between these two kinds of transactions. The impugned order is itself an appealable order under Section 107 of the CGST Act and therefore, the Petitioner ought to avail of the appellate remedy before approaching this Court invoking its writ jurisdiction.
The Petitioner, at this stage submits that in the earlier round of litigation, the Petitioner had deposited 10 percent of the demand as pre-deposit with the Appellate Authority. No refund has been taken of the said amount. It is prayed that the said amount be adjusted towards the pre-deposit to be made in respect of the appeal against the impugned order.
Petition disposed off.
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2025 (5) TMI 1981
Challenge to SCN and consequent order - vires of Notification No. 56/2023- Central Tax dated 28th December, 2023 as also the Notification No. 56/2023-State Tax dated 11th July, 2024 - SCN was uploaded on the ‘Additional Notices Tab’; therefore, the same did not come to the knowledge of the Petitioner - Violation of principles of natural justice - HELD THAT:- In fact this Court in Neelgiri Machinery through its Proprietor Mr. Anil Kumar V. Commissioner Delhi Goods And Service Tax And Others [2025 (3) TMI 1308 - DELHI HIGH COURT], under similar circumstances where the SCN was uploaded vide ‘Additional Notices Tab’ had remanded the matter.
There is no doubt that after 16th January 2024, changes have been made to the GST portal and the ‘Additional Notices Tab’ has been made visible. However, in the present case, the writ petition was filed in the year 2025, raising issues as to the validity of the impugned notifications. Under such circumstances, considering the fact that the Petitioner did not get a proper opportunity to be heard and no reply to the SCN has been filed by the Petitioner, the matter deserves to be remanded back to the concerned Adjudicating Authority.
Conclusion - The impugned order dated 5th August, 2024 was passed without providing the Petitioner a personal hearing and in the absence of a reply on behalf of the Petitioner, the matter deserves to be remanded back to the concerned Adjudicating Authority.
The Petitioner is granted time till 10th July 2025, to file the reply to SCN. Upon filing of the reply, the Adjudicating Authority shall issue a notice for personal hearing to the Petitioner - the impugned order is set aside - petition allowed by way of remand.
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2025 (5) TMI 1980
Territorial jurisdiction - expression 'cause of action' - Maintainability of writ petition due to availability of remedy of appeal under Section 107 of the CGST Act - Imposition of interest and penalty - availing the fake/bogus ITC - denial of cross-examination of witnesses - violation of the principle of natural justice - doctrine of forum conveniens - HELD THAT:- So far as the territorial jurisdiction is concerned, this issue is no more res integra. The Division Bench of this Court in the case of Shri govind Niranjan [2024 (11) TMI 1460 - MADHYA PRADESH HIGH COURT] has held that the expression 'cause of action' used in Clause (2) of Article 226 of the Constitution of India indisputably even if the small fraction thereof accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter through the doctrine of forum conveniens may also have to be considered.
The petitioner is having registration of GSIT as well as the place of business at Indore. The search was conducted in the office situated at Indore, the materials in question were supplied and received in Indore, therefore, merely on the ground that the learned assessing authority who has passed the order in original is stationed at Bhopal, it cannot be held that this Bench at Indore has no jurisdiction to entertain this writ petition. Since the authority is situated in Bhopal, therefore, in view of the judgment passed by the Division Bench of this Court in the case of Shri govind Niranjan (supra), the Principal Bench also has jurisdiction to entertain the writ petition.
So far as the issue of maintainability of writ petition due to availability of remedy of appeal is concerned, it is not in dispute that the writ petition is maintainable in certain circumstances like where there is complete lack of jurisdiction, where vires of act / rules / notification has been challenged, where an order has been passed in total violation of principle of natural justice etc.
The petitioner is alleging the violation of principle of natural justice solely on the ground that the opportunity to cross-examine the witnesses was not given. The petitioner has failed to point out when the request was made for cross-examination of the witnesses. By not giving an opportunity to cross-examine the witnesses, whether any prejudice was caused, is liable to be examined by the appellate authority after examining the record and the relevancy of the deposition of the witnesses. The appellate authority would be competent to decide all the issues and grounds raised in the writ petition. There should not be an avoidance of pre-deposit condition for the entertainment of a statutory appeal.
Thus, all the Writ Petitions stand dismissed with liberty to the petitioner to approach the appellate authority.
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2025 (5) TMI 1979
Dismissal of Appeal preferred by the petitioner - failure to submit the necessary pre-deposit as envisaged under Section 35F of the Central Excise Act, 1944 - HELD THAT:- The Hon’ble Apex Court in the case of Tecnimont [2019 (9) TMI 788 - SUPREME COURT] without any doubt, has laid down the proposition that the appellate authority shall not be within its jurisdiction to give a concession dehors the statutory prescription of deposit as a condition precedent for entertaining an appeal. However, the Hon’ble Apex Court in its earlier decisions in State of AP Vs P Laxmi Devi [2008 (2) TMI 850 - SUPREME COURT] and Har Devi Asnani Vs State of Rajasthan [2011 (9) TMI 957 - SUPREME COURT], held that in genuine cases of hardship, the recourse would still be open to the person concerned to approach superior Court, therefore, it would be completely different thing to say that the appellate authority itself can grant such a relief for the reason that such exercise would make provision itself unworkable and render the statutory intendment nugatory. Such determination was considered by a Division Bench in JSB Cement LLP [2019 (11) TMI 1430 - GAUHATI HIGH COURT] and held that when in case of requirement of pre-deposit is found to be arbitrary or exorbitant, only then, the writ Court can interfere and accordingly, applying the principle of equity, the Division Bench extended time of deposit of 20% of the statutory deposit under Section 79 (5) of the Act, 2003 and directed the respondents to hear the appeal on merit.
In the considered opinion of this Court, the principle of equity as emphasized in the judgments of the Hon’ble Apex Court and the Division Bench, shall also be applicable in the given facts of the present case. This Court though cannot find fault with the appellate authority in non-entertaining the appeal due to non-compliance of Section 79 (5), however, as the petitioner is ready to pre-deposit the required amount and in exercise of power under Article 226 of the Constitution of India, this Court is inclined to grant the benefit of hearing to the petitioner in the given fact of the case.
The present writ petition stands allowed by setting aside and quashing the impugned order dated 21.08.2024, subject to the statutory deposit.
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2025 (5) TMI 1978
Violation of principles of natural justice - ex-parte order - neither alleged reminder show cause notice was ever brought to the knowledge of the petitioner, nor service of the same was physically ever effected upon petitioner - HELD THAT:- The division bench of this Court in the Ola Fleet Technologies Pvt. Ltd. v. State of U.P. and Others [2024 (7) TMI 1543 - ALLAHABAD HIGH COURT] has dealt with this aspect of the matter and it has been held that no material existed to reject the contention advanced on behalf of the petitioner that order impugned imposing liability of tax was not reflecting under tab 'view notices and orders' and so there remained a valid dispute as to non consideration/consideration of the various documents of returns available which could have been shown in reply to the show cause notice.
The division bench was of the view that party under liability of tax in an ex parte order needs at-least an opportunity to put up his defense by submitting papers which may have led assessing officer to uphold the claim for exemption from tax liability. The division bench accordingly, instead of keeping the matter pending disposed off the same with a direction that impugned order may be taken as notice to enable the petitioner to submit his reply and thereafter assessing officer may have to pass a fresh order.
Recently, in the matter of M/s Akriti Food Industry LLP v. State of U.p. and 3 Others, [2025 (1) TMI 772 - ALLAHABAD HIGH COURT], the Court has set aside the identical order. Accordingly, it is also found that the orders to be sustainable and equally do not consider it necessary to keep this petition pending by inviting response.
It is directed that the order passed by the assessing officer dated 30.12.2023 shall be taken to be notice within the meaning of Section 73 of the GST Act, 2017 to enable the petitioner to file his objections and place its documents before assessing officer/ competent authority for its consideration - petition disposed off.
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2025 (5) TMI 1977
Seeking grant of regular bail - availing and utilization of fraudulent Input Tax Credit - fake/bogus invoices - already suffered incarceration for 2 months and 6 days - constitutional right of Article 21 - HELD THAT:- The details have been divulged by the counsel for the petitioner and also deposition has been made qua his role whereas certain other persons have been named by the petitioner who are being interrogated and on that account it would be unjust to deny the petitioner concession of regular bail who has suffered custody for more than 2 months whereas the interrogation qua other persons is underway, and as per the principle of the criminal jurisprudence, no one should be considered guilty, till the guilt is proved beyond reasonable doubt, therefore, detaining the petitioner behind the bars for an indefinite period would solve no purpose.
The Apex Court rendered in “Dataram versus State of Uttar Pradesh and another” [2018 (2) TMI 410 - SUPREME COURT] wherein it has been held that the grant of bail is a general rule and putting persons in jail or in prison or in correction home is an exception.
Therefore, to elucidate further, this Court is conscious of the basic and fundamental principle of law that right to speedy trial is a part of reasonable, fair and just procedure enshrined under Article 21 of the Constitution of India. This constitutional right cannot be denied to the accused as is the mandate of the Apex court in “Balwinder Singh versus State of Punjab and Another”[2024 (9) TMI 1744 - SC ORDER],
Thus, the petitioner is directed to be released on regular bail on his furnishing bail and surety bonds to the satisfaction of the trial Court/Duty Magistrate, concerned.
The petition in the aforesaid terms stands allowed.
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2025 (5) TMI 1976
Vires of Rule 36(4) of both Central Goods and Services Tax (CGST) Rules, 2017 and Tamil Nadu Goods and Services Tax (TNGST) Rules, 2017 - restriction on availment of Input Tax Credit (ITC) by a registered person in respect of invoices or debit notes not uploaded by suppliers under Section 37(1) of the GST Acts - HELD THAT:- Under the substantive provision for availing Input Tax Credit (ITC) is Section 16 of the GST Act, conditions or restrictions in availing Input Tax Credit (ITC) could be imposed in the manner specified in Section 49 of the GST Acts which gives the power to the Central Government - it is evident that the conditions and restrictions can be prescribed. The expression in Section 16(1) of the respective GST Acts i.e., subject to such conditions and restrictions as may be prescribed in the manner specified in Section 49 of the respective GST Acts must be read conjunctively with Section 37 of the respective GST enactments.
Rule 36(4) of the respective GST Rules was incorporated in 2019 vide amendments to the respective GST Rules to ensure that full credit could be availed subject to the supplier also additionally complying with the requirements under Section 37(1) of the respective GST enactments - the experience gained under the initial experiments made under the provisions of the Central Excise Rules, 1944 from the days of implementation of PROFORMA CREDIT to MODVAT CREDIT to CENVAT CREDIT [from mid 1980s to 2004] and under the VAT regime under the various VAT enactments of the States and the experience gained immediately after the implementation and roll out of the GST laws, led the Government to allow restricted credit if there was no compliance by the supplier of the requirement of Section 37(1) of the respective GST enactments.
Insertion of Rule 36(4) into the respective GST Rules in the year 2019 was intended to not only protect the interests of the Government but also the dealers / registered tax payers under the respective GST enactments so that they are not later exposed to recovery proceedings if the tax was not indeed paid by the supplier of goods and / or service.
In Calcutta Gujarati Education Society Vs. Calcutta Municipal Corporation [2003 (8) TMI 476 - SUPREME COURT], the Hon’ble Supreme Court held that the rule of reading down a provision of law is a rule of harmonious construction in a different name. It is resorted to smoothen the crudities or ironing out the creases found in a statue to make it workable. In the garb of “reading down”, however, it is not open to read the words and expressions not found in it and to venture into a kind of judicial legislation. The rule of reading down is to be used for the limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statute. It is to be used keeping in view the scheme of the statute and to fulfill its purposes.
With the incorporation of Form GSTR 2A, a dealer registered under the provisions of the respective GST enactments is entitled to Input Tax Credit (ITC) on the tax paid / borne on the tax paid by the supplier of goods or service or both. It is auto-populated. It is available on the dashboard. Based on the details of auto drafted inward supplies, the system now enables the recipient of goods or service to avail Input Tax Credit (ITC) based on the stipulations in Section 16 of the respective GST enactments and by drawing the information from the system in FORM GSTR – 1, 5, 6, 7 and 8 - Thus, the system has evolved to allow a recipient to avail Input Tax Credit (ITC) on the tax paid / borne on the tax paid by the supplier of goods or service or both. Prior to that the Input Tax Credit (ITC) was being allowed without the details being furnished at 20%, 10%, 5% as detailed in Table II of this Order has become irrelevant.
The amendment to Rule 36(4) starting from Notification No.49/2019-Central Tax (CT) dated 09.10.2019 / 6th Amendment Rules, 2019 as far as CGST Rules and Notification No.SRO A-39(a)/2019, dated 11.10.2019 / 6th Amendment Rules, 2019 as far as TNGST Rules allowing restricted availment of Input Tax Credit (ITC) at 20%, thereafter at 10% and later at 5% was intended to benefit the recipient to ensure that at least a portion of the Input Tax Credit (ITC) was available pending furnishing of the documents with regard to return by the supplier of goods or service.
Conclusion - i) Restrictions imposed under Rule 36(4) of the respective GST Rules to avail full credit of Input Tax in absence of the mandatory compliance by the supplier of goods or service as is contemplated under Section 37(1) of the respective GST Acts was a temporary measure to regulate the availing of Input Tax Credit (ITC). Ipso facto, it cannot be held that Rule 36(4) of the respective GST Rules is in violation of Article 14 of the Constitution of India. ii) The challenge to Rule 36(4) of the respective GST Rules as violative of Article 14 of the Constitution of India is not made out.
Petition dismissed.
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2025 (5) TMI 1975
Cancellation of the petitioner’s registration - failure to file returns for a continuous period of six months - HELD THAT:- Admittedly, the petitioner’s registration under the said Act had been cancelled on the ground of non-filing of returns. It is not the case of the respondents that the petitioner had been adapting dubious process to evade tax. Taking note of the fact that the suspension/revocation of license would be counterproductive and works against the interest of the revenue since, the petitioner in such a case would not be able to carry on his business in the sense that no invoice can be raised by the petitioner and ultimately would impact recovery of tax, the respondents should take a pragmatic view in the matter and permit the petitioner to carry on his business.
Having regard to the direction issued by the Hon’ble Division Bench of this Court in the case of Subhankar Golder v. Assitant Commissioner of State Tax, Serampore Charge & Ors. [2024 (5) TMI 1262 - CALCUTTA HIGH COURT], it is proposed to set aside the order dated December 6, 2021, cancelling the registration of the petitioner under the said Act, subject to the condition that the petitioner files his returns for the entire period of default and pays requisite amount of tax, interest, fine and penalty, if not already paid.
Petition disposed off.
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2025 (5) TMI 1974
Cancellation of GST Registration certificate of the Petitioner with effect from 1st February, 2023 - returns were not filed by the Petitioner for the previous six months - notice not issued to the petitioner - violation of principles of natural justice - HELD THAT:- This Court notices that the impugned order has been passed without notice to the Petitioner. Further, in respect of non-filing of returns, since the Petitioner itself had sought cancellation of GST registration with effect from 1st February, 2023, filing of returns for subsequent periods would not arise.
The impugned order is modified and the cancellation of registration shall be with effect from 1st February, 2023 as prayed by the Petitioner. Let the department carry out the necessary changes in the GST records.
Petition allowed.
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2025 (5) TMI 1973
Violation of principles of natural justice - non-service of Form GST ASMT-10 and show-cause notice in Form GST DRC-01 - ex-parte order - HELD THAT:- Though several contentions have been urged by both sides as regards to the petitioner not having received the Form GST ASMT-10 notice and show-cause notice and his inability and omission to contest the proceedings, is a matter on record and an undisputed fact that the petitioner did not submit his reply to the show-cause notice nor contested the proceedings, which culminated in the impugned ex-parte order.
Having regard to the specific assertion on the part of the petitioner that his inability and omission to submit replies and contest the proceedings was due to bona fide reasons, unavoidable circumstances and sufficient cause, it is deemed just and appropriate to adopt a justice oriented approach and provide one more opportunity to the petitioner by setting aside the impugned order dated 27.04.2024 and remitting the matter back to the second respondent for reconsideration of the matter afresh in accordance with law to the stage of petitioner submitting reply to the impugned show-cause notice.
Petition allowed by way of remand.
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2025 (5) TMI 1972
Refund claim - Appeal filed by the petitioner before 1st respondent - Appellate Authority was dismissed on the sole ground that the 1st respondent - Joint Commissioner was of the same cadre/rank as of the 2nd respondent - HELD THAT:- A perusal of the material on record would indicate that in his first order dated 15.05.2024, the 3rd respondent had come to the conclusion that the petitioner was entitled the sanction of refund and had forwarded the same to the 2nd respondent for prior approval. So also pursuant to the 2nd respondent addressing a communication dated 13.05.2024, the 3rd respondent took into account the reply submitted by petitioner and once again came to the conclusion vide order dated 11.06.2024 that the petitioner was entitled to sanction of refund. Under these circumstances, merely because the 2nd respondent had issued a communication dated 17.08.2024 raising the very same discrepancies which he had raised in his earlier letter dated 13.05.2024, the said communication could not have been made basis or relied upon by the 3rd respondent in rejecting refund claim of the petitioner which is erroneous and the same deserves to be set aside.
It is relevant to state that however, in the appeal filed by the petitioner before the 1st respondent - Appellate Authority, the sole reason for the 1st respondent - Appellate Authority to uphold the rejection order of the Assistant Commissioner was by coming to the conclusion that the 1st respondent was in the same cadre/rank as that of the 2nd respondent - Joint Commissioner. However, the 1st respondent failed to consider and appreciate that in so far as orders passed by the 3rd respondent - Assistant Commissioner are concerned, the 1st respondent - Joint Commissioner functions or act as an Appellate Authority who would be entitled to reconsider, re-appreciate and revisit the appeal filed by petitioner on merits without being influenced by any observation/finding recorded by the 2nd respondent and mere similarity or commonality in the rank / cadre between 1st and 2nd respondent could not have been made the basis to summarily reject the appeal filed by petitioner especially, when the 2nd respondent was functioning or acting in his administrative capacity while the 1st respondent was functioning or acting as an Appellate Authority against the orders passed by the 3rd respondent.
Conclusion - Merely because the 2nd respondent had issued a communication dated 17.08.2024 raising the very same discrepancies which he had raised in his earlier letter dated 13.05.2024, the said communication could not have been made basis or relied upon by the 3rd respondent in rejecting refund claim of the petitioner which is erroneous and the same deserves to be set aside.
It is deemed just and appropriate to set aside the impugned order at Annexure-A passed by 1st respondent and remit the matter back to the 1st respondent for reconsideration afresh in accordance with law and by issuing certain directions in this regard - petition allowed by way of remand.
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9911796707
