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GST - Case Laws
Showing 401 to 420 of 16293 Records
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2025 (5) TMI 1971
Cancellation of Goods and Services Tax (GST) registration with retrospective effect from 01 April 2022 - no reasons assigned in SCN - violation of principles of natural justice - HELD THAT:- The absence of reasons in the original SCN in support of a proposed retrospective cancellation as well as a failure to place the petitioner on prior notice of such an intent clearly invalidates the impugned action. Thus, the writ petition is entitled to succeed on this short ground alone.
The writ petition is allowed by modifying the impugned order and providing that the cancellation of the petitioner’s GST registration shall come into effect from the date of the SCN i.e. 16 May 2024 - The stipulation in the impugned order of cancellation to come into effect from 01 April 2022 is consequently quashed.
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2025 (5) TMI 1894
Initiation of proceedings u/s 130 of the GST Act against the petitioner for excess stock found during a survey, or whether proceedings u/s 73/74 of the GST Act were the proper course - HELD THAT:- It is not in dispute that survey was conducted at the business premises of the petitioner on 4.5.2022. It is also not in dispute that excess stock was found, which triggered the initiation of the present proceedings against the petitioner. On various occasions, this Court has held that if excess stock is found, then proceedings under sections 73/74 of the GST Act should be pressed in service and not proceedings under section 130 of the GST Act, read with rule 120 of the Rules framed under the Act.
This Court in S/s Dinesh Kumar Pradeep Kumar [2024 (8) TMI 71 - ALLAHABAD HIGH COURT] has held that 'this Court has specifically held that even if excess stock is found, the proceedings under section 130 of the UPGST Act cannot be initiated.'
The law is clear on the subject that the proceedings under section 130 of the GST Act cannot be put to service if excess stock is found at the time of survey.
The impugned orders dated 16.5.2024 and 26.9.2022 cannot be sustained in the eyes of law and same are hereby quashed - Petition allowed.
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2025 (5) TMI 1893
Violation of principles of natural justice - SCN not served upon petitioner - no hearing notices have been served upon the Petitioner - HELD THAT:- The Petitioner was well-aware of the search and the investigation that was going on. The Petitioner did not choose to file any reply to the notice or give any explanation as to the manner in which the sales were made including any justification to show that the invoices were not goods-less or that there was actual supply of goods. Even the hearing notices have been issued repeatedly.
This Court, therefore, is satisfied that the Principles of Natural Justice have been sufficiently complied with. Moreover, in the cases of similarly placed Petitioners, the said parties have already been relegated to the Appellate remedy.
The Supreme Court in Assistant Commissioner of State Tax & Ors. v. M/s Commercial Steel Limited [2021 (9) TMI 480 - SUPREME COURT], has held that it is only in extra-ordinary circumstances that writ petitions are to be entertained.
In the present case, the second email which has been produced by the Department was not even placed on record in the writ petition. It is evident that the Petitioner must have received these emails, and there prima facie appears to be no reason to disbelieve the assertion of the GST Department that the said notice was duly issued. The Petitioner, having chosen not to file any reply and having not attended the hearing or taken any steps to place its stand on record after the search and investigation having been conducted, has clearly not demonstrated bona fides.
Conclusion - This Court is not inclined to entertain the present writ petition, as both the grounds (i) lack of clean hands and (ii) the need for factual adjudication stand clearly established. However, the Petitioner is free to avail of its remedies in accordance with law under Section 107 of the CGST Act.
Petition disposed off.
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2025 (5) TMI 1892
Interest on delayed payment of pre-deposit has been paid to the petitioner - failure to submit the certified copy of the order within the prescribed period under the pre-amended Rule 108 - HELD THAT:- As per the unamended rule 108 (3) of the Rules, the time of filing certified copy of the order appealed against was within 7 days of submission of appeal; whereas, as per the amended rule 108(3) of the Rules, where the decision and order against is not uploaded on the common portal, then the party shall submit certified copy of the said decision within 7 days.
Bare conjoint reading of the aforesaid provisions clearly shows that in the event certified copy of the order appealed against is not uploaded along with the appeal through e-mode, then within 7 days of filing of the appeal, a self-certified copy of the order was supposed to be filed within 7 days.
The issue in hand has already been decided by the Delhi High Court in Chegg India Private Limited [2024 (12) TMI 1354 - DELHI HIGH COURT] wherein, the Court has held 'merely because the physical submission of the appeal and the order was much later, when the online filing was within the prescribed time, cannot deprive the Petitioner of hearing on merits. In most Courts and Tribunals, online filing and electronic filing is now prescribed mode and the Courts are moving towards technologically advance systems. It would be retrograde to opine that online filing, which was complete in all respects, including electronic copy of the order, is not valid filing.' - The Delhi High Court, while considering the issue, which is identical to the issue in hand, has held that the condition for physically filing the certified copy is not mandatory, but procedural in nature. If an appeal is preferred along with all documents, the filing of certified copy is not required.
Similarly, in the case in hand, it is not in dispute that the appeal, which was preferred on 18.08.2021, was without order appealed against. Once this fact is not in dispute, the issue in hand is covered by the judgement of the Delhi High Court in Chegg India Private Limited.
The impugned order dated 24.12.2024 passed by the Additional Commissioner, Grade - 2 (Appeal), State Tax, Ghaziabad cannot be sustained in the eyes of law - petition allowed.
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2025 (5) TMI 1891
Retrospective cancellation of the GST Registration of the Petitioner - non-compliance of any specified provisions without citing any specific section or rule of the GST Act - Petitioner's failure to file GST returns during a period of medical exigency of its Director - HELD THAT:- In the opinion of this Court, the alleged violation, as stated in the SCN is completely incomprehensible as it generally alleges non-compliance of unspecified provisions of the GST Act and Rules. There is no specific Section or Rule mentioned. In such a case, it is impossible for any assessee to figure out as to which provision has been violated and as to what reply ought to be given. The GST official issuing such notice ought to be careful to mention the specific provision of the GST Act and Rule of which violation is alleged. It is only then that the Assessee can give a proper reply to such a show cause notice.
Hence, the SCN is in fact completely untenable in law as there is no clarity as to the aspect on which the assessee has to show cause.
Under these circumstances and in view of the medical exigency faced by the Director, it is held that the cancellation of GST Registration of the Petitioner shall only be with effect from 10th March, 2023. The Petitioner has no objection to the same as the Petitioner is no longer carrying on the business - Petition disposed off.
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2025 (5) TMI 1890
Seeking quashing of the order-in-original and DRC-07 - HELD THAT:- The order-in-original and DRC-07 dated 25.04.2024 and all the notices were duly conveyed to the petitioner. Therefore, admittedly, petitioner filed an appeal with a delay of 31 days. Further, the reason for condonation of delay in filing the appeal before respondent No. 3-Joint Commissioner of State Tax (Appeals)-cum- Appellate Authority, Gurugram, that no intimation was sent to the petitioner for issuance of DRC-07 dated 25.04.2024 and show cause notice dated 29.12.2023 is totally contradictory to the record. There is, thus, no ground for condonation of delay in filing the appeal.
This writ petition is dismissed being devoid of any merit.
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2025 (5) TMI 1889
Seeking records relating to the impugned order passed by the first respondent - seeking consequential direction to the respondents to restore the status of the petitioner herein as a Composition Taxpayer - impugned order passed without even issuing a SCN by merely uploading the same in the first respondent's GST portal - violation of principles of natural justice - HELD THAT:- Assuming that sending notices by uploading in the portal is sufficient service, when the Officer who was sending the repeated reminders, received no response from the petitioner, he ought to have applied his/her mind and explored diligently the possibility of sending notices by other modes prescribed in Section 169 of the GST Act. Mere uploading notice repeatedly without ensuring their receipt by the petitioner cannot be considered as effective service. Such mechanical compliance does not serve any useful purpose and the same will only lead to multiplicity of litigations, wasting not only the time of the Officer concerned, but also the precious time of the Appellate Authority / Tribunal and this Court as well. Thus, when there was no response from the tax payer to the notice uploaded in the portal, the Officer should have sent the notice through RPAD, which would have served the purpose.
There was a failure of effective opportunity to the petitioner to reply to the show cause notice - the impugned order passed by the first respondent dated 29.04.2024 is set aside - the matter is remanded to the first respondent for fresh consideration - petition allowed by way of remand.
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2025 (5) TMI 1888
Seeking for the issuance of a Writ of Certiorari, to call for the records - issuance of the impugned order without proper service of SCN - violation of principles of natural justice - HELD THAT:- In the absence of service of the original show cause notice, the petitioner was not able to reply to the same. Assuming that sending notices by uploading in the portal is sufficient service, when the Officer who was sending the repeated reminders, received no response from the petitioner, he ought to have applied his/her mind and explored diligently the possibility of sending notices by other modes prescribed in Section 169 of the GST Act. Mere uploading the notice repeatedly without ensuring their receipt by the petitioner cannot be considered as effective service. Such mechanical compliance does not serve any useful purpose and the same will only lead to multiplicity of litigations, wasting not only the time of the Officer concerned, but also the precious time of the Appellate Authority / Tribunal and this Court as well. Thus, when there was no response from the tax payer to the notice uploaded in the portal, the Officer should have sent the notice through RPAD, which would have served the purpose.
This Court is of the view that the impugned assessment order passed without affording any opportunity of personal hearing to the petitioner, confirming the proposals contained in the show cause notices is illegal and unsustainable.
The impugned order passed by the first respondent dated 14.08.2024 is set aside - petitioner is directed to deposit 25% of the disputed tax, which the petitioner voluntarily accepts to pay, within a period of two weeks from the date of receipt of a copy of this order - Petition allowed by way of remand.
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2025 (5) TMI 1887
Challenge to the order passed in the Rectification Application - apparent error on the record or not - opportunity of hearing provided or not - violation of principles of natural justice - HELD THAT:- It is an admitted fact that the petitioner had made a Rectification Application. The order of rectification, which is impugned, would indicate that for the reasons given in the annexure to the said order, the Rectification Application is rejected - A perusal of the order does not also indicate that there had been no error apparent on the record to reject the rectification. There is also no reasonings as to why there is no error apparent on the face of the record. For this reason, the impugned order dated 28.03.2025 is liable to be set aside.
The Proviso indicates that when an order is being made adverse to the assessee, then he should be given an opportunity of being heard when the rectification adversely affects any person. The principles of natural justice had been in-built by way of the 3rd Proviso to Section 161. If pursuant to a Rectification Application, if a rectification is made and if it adversely affects the assessee, 3rd Proviso contemplates an opportunity of hearing to be given. However, when a Rectification Application is made at the instance of assessee and the rectification is being sought to be rejected without considering the reasons for rectification or by giving reasons as to why such rectification could not be entertained, it is also imperative that the assessee should be put on notice.
The order of rectification passed by the respondent dated 28.03.2025 is contrary to the provisions of Section 161 and in that aspect, the same alone is set aside. The Rectification Application filed by the petitioner shall be taken afresh by the respondent and after giving an opportunity to the petitioner, the respondent shall pass appropriate orders in accordance with law.
The petition is allowed.
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2025 (5) TMI 1886
Rectification of form GSTR-1 uploaded for September 2020 with respect to those invoices issued to Respondent No.06 so as to enable the respondent No.06 to take credit of the tax paid by the petitioner notwithstanding the time limit prescribed in Section 16(4) of the CGST Act - HELD THAT:- In Wipro Limited [2023 (1) TMI 499 - KARNATAKA HIGH COURT], this Court under identical circumstances extended the applicability of the Circular to the assessment year 2019-20 onwards by holding 'having regard to the language employed in the Circular, which contemplates rectification of the bonafide and inadvertent mistakes committed by the persons at the time of filing of Forms and submitting Returns, in the peculiar and special facts and circumstances of the instant case, I am of the considered opinion that the error committed by the petitioner in showing the wrong GSTIN number in the Invoices which was carried forward in the relevant Forms as that of ABB India Limited instead of the 5th respondent i.e., M/s. ABB Global Industries and Services Private Limited, is clearly a bonafide error, which has occurred due to bonafide reasons, unavoidable circumstances, sufficient cause and consequently, the aforesaid Circular would be directly and squarely applicable to the facts of the instant case.'
So also under identical circumstances, Bombay High Court in the case of M/s. Railroad Logistics (India) Pvt. Ltd., Vs. The Union of India & Ors [2024 (2) TMI 57 - BOMBAY HIGH COURT] has held 'we find that once a bona fide mistake of such nature has occurred, it needs to be rectified.'
The present petition deserves to be allowed and necessary directions are to be issued to the respondent in this regard - Petition disposed off.
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2025 (5) TMI 1885
Taxable supply or not - goods carriage given on lease to Goods transportation Agency (GTA) - exempted/Nil rated supply or not - service provider has to be a Goods Transportation Agency (GTA) to avail the above mentioned exemption or it can be any other person.
HELD THAT:- The applicant being an individual and intend to own a goods carriage is going to supply the vehicle to a Goods Transport Agency. As a proof, the applicant has furnished copy of the registration certificate of M/s. Cecius Logistics Solutions Private Limited, whose GSTIN: 27AAICC8038K179 and sample copies of consignment note issued by M/s. Cecius Logistics Solutions Private Limited as a proof that they are also a ‘Goods Transport Agency’.
SI. No. 22 of the said notification is specific to Chapter heading 9966 and 9973. Chapter heading 9966 relates to ‘Rental services of transport vehicles with operators’ and Chapter heading 9973 is for ‘Leasing or rental services without operator’. The applicant during the personal hearing have informed that he is only supplying the goods carriage vehicle (Reefer vehicles) without the driver - the period of contract or agreement entered into by the applicant with M/s. Celcius Logistics Solutions Private Limited for supply of goods carriage vehicle can only be a ‘Lease/Rental’. Hence, the classification would rightly be under 9973 as “Leasing or rental services without operator’.
CBIC, vide Circular No. 164/20/2021-GST (CBIC-190354/207/2021-TU(TRU-II)-CBEC) dated 6th October, 2021, while clarifying applicability of GST on Renting of Vehicles to State Transport Undertakings and Local Authorities’, have clarified that “giving on hire” in SI. No. 22 of Notification No. 12/2017-CT(Rate) includes ‘renting of vehicles’ and accordingly the services where vehicles rented or given on hire to State Transport Undertakings and Local Authorities, are eligible for exemption. Therefore, the term, ‘giving on hire’ specified in the notification includes ‘leasing and rental services’ also.
In the instant case, the service rendered is ‘providing vehicle on hire’. the service provider is the applicant, M/s. Dharmaraju Ragul who is providing the goods carriage vehicle on hire for a consideration and the Service receiver is M/s. Celcius Logistics Solutions Private Limited, who necessarily must be a goods transport agency. No condition is specified for claiming the facility provided in the notification for the service provider who is giving the goods carriage on hire.
Conclusion - i) The supply of goods carriage on hire or lease to a Goods Transport Agency is a taxable supply. By virtue of SI. No.22 of Notification No. 12/2017-CT (Rate) dated 28-06-2017, the activity is charged to Nil rate of tax. ii) Column 5 of the Table in the Notification is for conditions applicable for that specific entry. At SI. No. 22 of the said Notification, no condition is specified for claiming the facility provided under the notification. iii) The service provider, namely the applicant need not be a goods transport agency to claim the facility of the Notification.
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2025 (5) TMI 1884
Levy of GST - corpus /Sinking Fund collected from members - rate of GST to be charged on the collection of Sinking fund - SAC code - set off of GST paid on such services (input service) against the GST payable on the amounts collected as corpus/sinking funds - requirement to levy or collect GST on maintenance charges, once registration is taken, provided that the monthly sum does not exceed Rs. 7,500/-.
Whether collection of corpus fund/sinking fund/capital amounts from the residents for the purpose of painting and carrying out some building maintenance work in the common area of the apartment would be subject to the levy of GST? - HELD THAT:- Primarily, the activity of a Resident Welfare Association includes all the activities provided to its members within a society. A society is akin to a club which is composed of its members. Therefore, service provided by a housing society to its members shall be treated as service provided by one person to another.
The applicant has stated in their application with regard to facts that they are registered under the provisions of the Tamilnadu Societies Registration Act, 1975 and hence fall within the definition of 'person'.
As per definition of “consideration”, any collection in any form, from the members is a consideration and the activity done by the applicant is in the nature of 'supply of service'.
Whether the activity of the society can be said to be in the course of furtherance of busines? - HELD THAT:- Proviso to the definition of 'consideration' states that deposit given for supply of goods or services shall not be considered as payment for the supply of goods or services unless the supplier appropriates such deposit as consideration for the said supply. The term 'deposit' in normal parlance, is 'an amount being held in any bank account, especially to earn and accumulate interest'. In most of the case, the amount collected as security deposit is kept as a security for providing supply of goods or services. Further, any amount which is returned back to the person who have made payment is termed as 'security deposit'.
As the amount collected now is being used to render service to its members in future, it shall be rightly termed as 'Advance' towards the provision of service to be rendered in future. Therefore, the consideration received by the applicant from its members for the 'supply of service', agreed to be made' is liable to tax - the amount collected by the applicant from its members for setting up a sinking fund is an advance payment towards future supply of services and such payment comes under the definition of 'consideration' under clause (31) of Section 2 of the GST Act. The applicant is, therefore, liable to pay tax on such supply in terms of sub-section (2) of Section 13 of the GST Act.
Thus, all the conditions for an activity fell under the 'scope of supply' is satisfied, the collection of 'corpus fund/sinking fund/ capital fund' by the applicant from the residents for the purpose of painting and carrying out some building maintenance work, in the common area of the apartment is a supply and hence would be chargeable to GST. The activity of the housing society would thus attract the levy of GST and the housing society would be required to register under Section 22 of the Act, if the turnover of the housing society exceeds 20 Lakhs and comply with the GST law - TRU vide Circular No.109/28/2019-GST (F. No. 332/04/2017-TRU) dated 22-07-2019 has given an extensive clarification on all possible questions arise on this issue. However, this clarification is applicable only to the monthly subscription collected from the members in Resident Welfare Association. As long as the monthly subscription per member is less than Rs. 7,500/-, GST is not liable to be paid as per the above Notification.
The applicant is providing partly taxable (liable to pay GST on the corpus/sinking/capital fund) and partly exempted supply of service (Nil rate of Tax for subscription per month per member is less than Rs. 7,500/-). Therefore, the applicant is liable to restrict the claim of input tax credit to the extent of exempt turnover as per Rule 42 of the GST Rules.
Conclusion - i) The amount of corpus/sinking/capital fund collected from the residents for the purpose of painting and carrying out some building maintenance work in the common area of the apartment is subjected to CGST and SGST and applicable tax need to be paid. ii) As the applicant liable to pay GST on the collection of corpus/sinking/ capital fund, they can utilize the ITC availed towards their outward liability subject to following the provisions of Section 17 (2) of the Act and Rule 42 of the Rules. iii) In terms of SI. No. 77 of Notification No. 12/2017-CT (Rate) dated 28-06-2017, read with Circular No. 109/28/2019-GST (F. No. 332/04/2017-TRU) dated 22nd Jul, 2019, if the subscription/contribution per month per member is less than Rs. 7,500/-, no GST is liable to be charged and collected from the members.
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2025 (5) TMI 1883
Industrial/institutional consumers as per Rule 2bb and 2bc of the Legal Metrology (Packaged Commodities) Rules, 2011 - supply to institutions is not classified as ‘pre-packaged and labelled’, as per Rule 3(b) of the Legal Metrology (Packaged Commodities) Rules, 2011 - nil rated supply - Supply to Bangalore branch is wholly done by Chennai Head Office, and at Bangalore, they sell the products only to hotels or institutions - claim of ITC on inter-branch transfer - frozen meat products packed in individual packs of 1Kg, 2Kg, 3Kg etc., are sold to distributors with the marking For Institutional sale only’ - rate of GST.
HELD THAT:- The Hotels qualify as an ‘industrial consumer’ as per Rule 2(bb) of the Legal Metrology (Packaged Commodities) Rules, 2011.
The supplies to institutional or industrial consumer shall not be considered as ‘pre-packaged and labelled’ for the purpose of GST levy, as they get covered under Rule 3(c) of the Legal Metrology (Packaged Commodities) Rules, 2011. Such supplies are indeed ‘Nil’ rated, as they are covered under the exemption notification No. 02/2017-CT (Rate) dated 28.06.2017, if and only if it fulfils all the conditions envisaged under Rule 2(bb) and Rule 2(bc) of the Packaged Commodities Rules, 2011. As a corollary, if the said conditions are not fulfilled, such supplies cannot be treated as exempted, even if they are made to an industry or an institution. Further, in the instant case of the applicant, we notice that the declaration Not for Retail Sale’ is reportedly not affixed/printed in the packages, and therefore, such supplies are not exempted from payment of GST. However, on fulfilment of the requisite conditions, if such outward supplies are treated as ‘Nil’ rated, ITC on the inward supply involved in such cases cannot be availed.
As per the facts of the case furnished by the Applicant, the supply of the impugned products to its branch is reported to undergo further supply only to hotels or other institutional consumers. In this regard, we find that Rule 3(c) of the Chapter II of the Packaged Commodities Rules, inter-alia states as ‘packaged commodities meant for industrial consumers or institutional consumers’, whereby it becomes clear that the end user should be an industrial consumer or an institutional consumer, and that the same should not be for retail sale. Hence, for the supplies meant for industrial/institutional consumers, we find that the exemption from GST would be available if and only if it fulfils all the conditions envisaged under Rule 2(bb) Rule of the Packaged Commodities Rules 2011 for “Industrial Consumer”, or under Rule 2(bc) of the Rules, ibid for “Institutional Consumer”. In the instant case of inter-branch transfers, since the requirement of affixing/printing the declaration Not for Retail Sale’ is reportedly not made in the packages, such supplies do not fall under the exempted category.
It may be seen that packages of commodities containing quantity of more 25 kilograms as specified in rule 3(a) of the Legal Metrology (Packaged Commodities) Rules, 2011, and quantity of ten gram or less as specified in rule 26(a) of the rules, ibid, are kept outside the purview of the said rules - the analogy of the discussion as above in respect of query Sl. No.(iii), applies to this query as well, since frozen meat products packed in individual packs of 1Kg, 2Kg, 3Kg, etc., get covered as ‘pre-packaged and labelled’ commodities. Such supplies become eligible for exemption under N/N. 02/2017-CT (Rate) dated 28.06.2017, provided the distributor to whom the Applicant makes outward supply, is also a wholesale dealer, and provided such packages carry the declaration ‘Not for Retail Sale’. However, since the mandatory requirement of declaration is not available in the instant case, and since the status of the distributor as a wholesale dealer is not clear/confirmed, it is opined that the applicant should charge GST on such supplies to distributors.
Conclusion - i) Hotels qualify as an ‘industrial consumer’ as per Rule 2(bb) of the Legal Metrology (Packaged Commodities) Rules, 2011. ii) The declaration Not for Retail Sale’ is reportedly not affixed/printed in the packages, and therefore, such supplies are not exempted from payment of GST. However, on fulfilment of the requisite conditions, if such outward supplies are treated as Nil’ rated, ITC on the inward supply involved in such cases cannot be availed. iii) With regard to inter-branch transfers, since the requirement of affixing/printing the declaration ‘Not for Retail Sale’ is reportedly not made in the packages, such supplies do not fall under the exempted category. iv) Since the mandatory requirement of declaration ‘Not for Retail Sale’ is not available in the packages instant case, and since the status of the distributor as a wholesale dealer is not clear/confirmed, the applicant should charge GST on such supplies to distributors.
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2025 (5) TMI 1811
Refund claim - availing the facility of ITC on inward supplies of goods and supplies being used for providing outward supplies - Validity of Rule 96(10) of the CGST Rules vis-`a-vis Sections 16 of IGST Act and 54 of CGST Act - HELD THAT:- Having regard to the judgment delivered in the case of Kolhapur Canesugar Works Ltd [2000 (2) TMI 823 - SUPREME COURT] it would transpire that the effect of omission of rule from the statute book is different from the effect of substitution of rule and the effect of amendment of a statute which is saved by a saving clause. It appears that the Hon'ble Supreme Court having noted the provisions of Section 6 of the General Clauses Act, 1897, had come to a finding that the exception contained in Section 6 of the General Clauses Act applies where any Central Act or Regulation made after commencement of the General Clauses Act repeals any enactment. It is not applicable to omission of a "rule". The Hon'ble Supreme Court had also observed that normal effect of repealing of a statute or deleting a provision is to obliterate it from the statute book subject to the exception engrafted in Section 6 of the General Clauses Act. If, however, a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceeding, all actions must stop where the omission finds them, and if the final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in Special Acts may modify the position. Thus, the operation of repeal or deletion as to the future and past largely depend upon the savings applicable. In a case where a particular provision is omitted and in its place another provision dealing with the same contingency is introduced without the saving clause in favour of the pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall not continue but fresh proceedings for the same purpose may be initiated under the new provision. In the instant case, no new rule has been incorporated. On the contrary, rule 96 (10) of CGST Rule, 2017 has itself been omitted from the statute book without any saving clause, at least the parties at this stage have not been able to show anything to the contrary.
Having regard thereto, in our view, the said provision of rule 96 (10) of CGST Rule, 2017 being omitted unconditionally, without a saving clause in favour of the pending proceedings, all actions from the date of such omission of the rule must stop. Having regard thereto, we find that there was no scope for the respondent no. 2 to pass any order by invoking the provisions of rule 96 (10) of CGST Rule, 2017 after the same was omitted on 8th October, 2024 without a saving clause in favour of the pending proceeding. Having regard to the above observations, we deem it appropriate to allow the writ petition and set aside the order dated 03.02.2025 passed by respondent no. 2.
Accordingly, the writ petition is allowed and the impugned order dated 03.02.2025 passed by respondent no. 2 is set aside.
Pending application, if any, also stands disposed of.
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2025 (5) TMI 1810
Direction to remit the amount of the GST on Works Contract Services provided on or after July 1, 2017 - failure to appreciate that paragraph 3 (iv) of the Notification is confined in its application to Pre-GST contracts and cannot be invoked to deny reimbursement in respect of contracts executed after July 1, 2017 which are expressly governed by paragraph 4 of the very same Notification - HELD THAT:- As per the notification dated August 16, 2017, the question of revision of any contractual values of the contract due to impact of change of tax rate with regard to VAT/ Service Tax to GST does not arise at all.
In the light of the above Notification, the respondent authority has misconstrued the applicability of the Notification in the context of the instant case. The respondents have failed to appreciate that Paragraph 3(iv) of the Notification is confined in its application to pre-GST contract and cannot be invoked to deny reimbursement in respect of contracts executed after July 1, 2017 which are expressly governed by Paragraph 4 of the same notification.
The respondent No. 4, The Secretary, Public Works Department, Nabanna is directed to revisit the issue of the petitioner as mentioned in the letters dated October 19, 2020 and April 23, 2021 respectively with regard to the payment of the GST amount against the gross bill during the period from 01.07.2017 to 31.03.2019 as per GST Law - petition disposed off.
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2025 (5) TMI 1809
Availment of fraudulent Input Tax Credit - adequate opportunity of personal hearing provided or not - relied upon documents (RUDs) which were given were not clear - Violation of principles of natural justice - HELD THAT:- A perusal of the reply filed by the Petitioners on 06th January, 2025 would show that apart from raising various technical objections, there is hardly any plea raised by the Petitioners in the reply on the main issue i.e. that the goods were in fact supplied and ITC was rightly availed.
Further, in so far as the RUDs are concerned, this Court is of the opinion that RUDs are collected by the Department from various firms under investigation and whatever documents are available with the Department is what is collected from these firms and therefore, the Department cannot be expected to supply re-typed copies of the RUDs, considering that this could be extremely bulky in nature.
A perusal of Section 75 (5) of the Central Goods and Service Tax Act, 2017 (hereinafter, ‘CGST Act’), would show that it merely provides that no more than three adjournments can be granted for personal hearing. Thus, so long as a proper hearing has been granted by the Department, there cannot be any allegation of violation of the principles of natural justice - Moreover, in the present case, it is seen that the total number of entities who have been investigated and to whom notices have been issued are 146 in number. Hearings may in fact have been granted by the Department on different dates to various entities. In the impugned order itself, it is recorded clearly that almost none of the firms filed any reply to the SCN.
This Court is not inclined to entertain the present writ petition. However, the Petitioners are granted the liberty to file an appeal - the Petitioners are permitted to avail of the appellate remedy under Section 107 of the CGST Act, by 15th July, 2025, along with the necessary pre-deposit mandated, in which case the appeal shall be adjudicated on merits and shall not be dismissed on the ground of limitation.
Petition disposed off.
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2025 (5) TMI 1808
Challenge to impugned order - case of the Petitioner is that the Show Cause Notice (SCN) was issued on 31st May, 2024 but since it was in the ‘Additional Notices Tab’, it could not be replied to by the Petitioner - violation of principles of natural justice - HELD THAT:- The argument that the notice was in ‘Additional Notices Tab’ would not be tenable in this case as the SCN is subsequent to 16th January, 2024 i.e. dated 31st May, 2024. The reply ought to have been filed by the Petitioner which has been missed out by the Petitioner leading to the impugned order.
However, taking into consideration the fact that the Petitioner is willing to deposit the tax amount of Rs.10,22,963/- and since the impugned order is an ex-parte order and the Petitioner has not had a chance to contest on merits, the matter is remanded to the Adjudicating Authority subject to the conditions imposed - petition disposed off by way of remand.
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2025 (5) TMI 1807
Pre-deposit for the purpose of filing an appeal - Wrongful availment of Input of Tax Credit - only submission on behalf of the Petitioner is that the order ought to take into consideration the said deposit which has been made - HELD THAT:- Form DRC-03A has been created for this purpose by the GST Department in order to enable parties like the Petitioner to take credit of any deposit which they may have made so at the time of filing of the appeal. Due consideration can be given to the fact that money already stands deposited with the GST Department.
Accordingly, for the said purpose, let the Petitioner appear before the Adjudicating Authority and present the Form DRC 03A to the concerned official. Thereafter, a confirmation to this effect be issued by the Adjudicating Authority within a month. Upon the said confirmation being issued, the same shall be used for the purpose of pre-deposit to file the appeal before the Commissioner (Appeals) challenging the impugned order dated 01st February, 2025.
Petition disposed off.
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2025 (5) TMI 1806
Seeking disbursal of alleged outstanding dues - no completion certificate has been placed on record to substantiate the completion of work as alleged - HELD THAT:- Upon considering the arguments advanced by the counsels for both the parties and the documents which have been produced on record, this Court finds substance in the contention advanced by the learned counsel for the respondent corporation. No documentary evidence, including any completion certificate has been adduced to establish that the assigned construction work has been completed under the aforementioned work order or that the amount claimed by the petitioners is an admitted sum.
In the absence of such foundational documentation and in view of the existence of disputed questions of fact pertaining to the execution and quantification of the alleged dues, this Court is not inclined to invoke its extraordinary jurisdiction under article 226 of the constitution of India.
Petition disposed off.
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2025 (5) TMI 1805
Entitlement to claim ITC - allegation against the petitioner is that the petitioner claimed Input Tax Credit in respect of supplies made by Global Bitumen though the supplier was found to be non-existent and non-operational at the declared place of business - HELD THAT:- Upon going through the orders passed by the adjudicating authority as well as the appellate authority this Court finds that such documents were also produced by the petitioner before such authorities. Though the authorities both original as well as the appellate proceeded on the basis that there was no actual physical movement of the goods but the petitioner has produced documents before this Court in support of his contention that there was actual physical movement of the goods. Such documents which are available on records does not appear to have been considered by either of the authorities. Such authorities also did not return any finding as to whether the supplier complied with the provisions of the WBGST Act, 2017 with regard to payment of the tax and duty and filing of the returns for the relevant period.
Though the registration of the supplier may have been cancelled subsequently but it is not in dispute that at the relevant point of time such registration was valid. The revenue has also not returned any finding whether the stand of the petitioner that the supplier has complied with the provisions under the GST Act to enable the petitioner to avail of the input tax credit is correct or not before arriving at a finding that the petitioner is liable to pay ineligible ITC claimed and availed by him along with interest and penalty.
The question as to whether the supplier has paid the tax and duty is also one of the relevant factor for the purpose of deciding as to whether the petitioner is entitled to avail of the Input Tax Credit for the transactions in question - Such a factual adjudication has not been made either by the adjudicating authority or by the appellate authority.
This Court is, therefore, of the considered view that both the authorities failed to perform their duty vested upon them by the statute - this Court is inclined to interfere with the orders impugned. Accordingly the order of the appellate authority dated March 17, 2025 and the order of the adjudicating authority dated April 15, 2024 are set aside and quashed.
The matter is remitted to the adjudicating authority - Petition disposed off by way of remand.
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