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GST - Case Laws
Showing 401 to 420 of 11332 Records
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2024 (3) TMI 328
Refund of IGST paid on goods exported - claim of higher duty drawback - Constitutional validity of Paragraph 11(d) read with 12A(a)(ii) of the Notes and Conditions of the N/N. 131/2016- Cus. (N.T.), dated 31.10.2016 - Circular No. 37/2018-CUSTOMS dated 09.10.2018 - HELD THAT:- There are substance in the contentions as urged on behalf of the Petitioner that the Petitioner would be entitled to the refund of IGST paid by the Petitioner during the transitional period, after deducting the differential amount of duty drawback, in terms of what has been placed on record at Exhibit-G (at page 120 of the Petition).
It is found from the Reply Affidavit that, on the factual matrix, no dispute has been raised in regard to the dis-entitlement of the Petitioner in regard to the quantum as described, in the Shipping Bills itself, which, in terms of Rule 96 of the CGST Rules would amount to applications for refund.
Reference made to the observations of this Court in similar circumstances in the case of SATYEN POLYMERS PVT. LTD. VERSUS THE UNION OF INDIA AND ORS. [2023 (9) TMI 1238 - BOMBAY HIGH COURT] where it was held that The Circular on which reliance is placed by the Respondents is dated 9th October, 2018, whereas the export was made on 25th July, 2017 and 5th September, 2017, which is much before the date of Circular. It is a settled position that the circular cannot be made applicable retrospectively. Even otherwise, the circular proceeds on a footing of claim of higher duty drawback and not where the rate of drawback is same and further more the circular also dose not deal with the rectification of mistake if suffix (A) is mentioned instead of suffix (B), while mentioning the HSN Code, which the facts in the instant case.
The Respondent Authorities are directed to grant refund of IGST paid on goods exported by the Petitioner during the Transitional Period, after deducting the differential amount of duty drawback, i.e. grant refund of Rs. 30,04,591/- [Rs. 36,47,039 (Rs. 7,13,830 Rs. 71,382)], along with appropriate interest on such refund from the date of the shipping bill till the date of actual refund - the amount be released with simple interest, at the rate of 7%, to the Petitioner within three weeks from the date an authenticated copy of this order is presented before the concerned officer - petition disposed off.
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2024 (3) TMI 327
Cancellation of GST registration of petitioner with retrospective effect - notice does not specify any cogent reason - violation of principles of natural justice - HELD THAT:- The SCN and the impugned order are bereft of any details accordingly the same cannot be sustained and neither the show cause notice, nor the order spell out the reasons for retrospective cancellation.
In terms of Section 29(2) of the Act, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, it is not considered apposite to examine this aspect but assuming that the respondent’s contention in required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer's registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
In view of the fact that Petitioner does not seek to carry on business or continue the registration, the impugned order dated 13.02.2024 is modified to the limited extent that registration shall now be treated as cancelled with effect from 03.02.2022 i.e., the date when the Show Cause Notice was issued. Petitioner shall comply with the requirements of Section 29 of the Central Goods and Services Tax Act, 2017 - petition disposed off.
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2024 (3) TMI 326
Maintainability of petition - availability of alternative remedy of appeal - non-constitution of the Appellate Tribunal - HELD THAT:- The petitioner is desirous of availing the statutory remedy of Appeal under the said provisions. Apparently, acknowledging the absence of constitution of Appellate Tribunal, in exercise of the power conferred under section 172 of the CGST Act, 2017, the Government of India based on the recommendation made by the G.S.T. Council, has issued Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 on 03.12.2019 - In tune with the said Removal of Difficulties Order dated 03.12.2019, the Central Board of Indirect Taxes and Customs, GST Policy Wing vide Circular No. 132/2/2020-GST Dated 18th March, 2020 has come out with the clarification in respect of appeal having regard to non-constitution of the Appellate Tribunal.
Taking into account the aforesaid Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 03.12.2019 issued by the Government of India and subsequent clarification issued by the Central Board of Indirect Taxes and Customs (GST Policy Wing) vide Circular No.132/2/2020 dated 18th March, 2020, it is deemed proper in the interest of justice to dispose of this writ petition - petition disposed off subject to verification of the fact of deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, or deposit of the same, if not already deposited, in addition to the amount deposited earlier under Sub Section (6) of Section 107 of the CGST/OGST Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the CGST/OGST Act, for the petitioner cannot be deprived of the benefit, due to non-constitution of the Tribunal by the respondents themselves. The recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed.
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2024 (3) TMI 325
Maintainability of appeal - appeal dismissed on the ground of time limitation - power of Commissioner Appeals to condone delay - HELD THAT:- Since in the present case the appeal was filed on 02.09.2023, the appeal was filed with a delay not exceeding one month and as such the Commissioner Appeals was empowered to consider the application seeking condonation of delay.
As the Commissioner Appeals has erroneously not considered the application seeking condonation of delay solely on the ground that appeal same was beyond the period prescribed under Section 107 (4) of the Act and thus beyond the powers vested in the Commissioner Appeals, the said order set aside and matter remitted to the Commissioner Appeals to consider the application seeking condonation of delay in accordance with law.
Petition disposed off.
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2024 (3) TMI 324
Cancellation of GST registration of petitioner with retrospective effect - notice does not specify any cogent reason - violation of principles of natural justice - HELD THAT:- The show cause notice and the impugned order are bereft of any details accordingly the same cannot be sustained.
In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. The registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, it is not considered apposite to examine this aspect but assuming that the respondent’s contention in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer’s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
There is no reasoning in the said show cause notice and in the impugned order as to why the cancellation has been done retrospectively - the matter is relegated to the proper officer to re-adjudicate the Show Cause Notice dated 06.01.2023 in accordance with law - petition disposed off.
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2024 (3) TMI 323
Cancellation of GST registration of the Petitioner with retrospective effect - petitioner had no opportunity to even object to the retrospective cancellation of the registration - violation of principles of natural justice - HELD THAT:- The GST registration of the Petitioner was cancelled by order dated 25.08.2021, however, the said order does not give any reasons for cancellation of the registration. It merely states that the registration is liable to be cancelled for the following reason “whereas no reply to notice to show cause has been submitted”.
Neither the show cause notice nor the order spell out the reasons for cancellation. In fact, order dated 29.01.2021 does not qualify as an order of cancellation of registration. On one hand, it states that the registration is liable to be cancelled and on the other, in the column at the bottom there are no dues stated to be due against the petitioner and the table shows nil demand.
In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. The registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, it is not considered apposite to examine this aspect but assuming that the respondent’s contention in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer’s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
In view of the fact that Petitioner does not seek to carry on business or continue the registration, the impugned order dated 25.08.2021 is modified to the limited extent that registration shall now be treated as cancelled with effect from 29.08.2019 i.e., the date when the Petitioner had submitted the application for cancellation of GST registration - Petitioner shall comply with the requirements of Section 29 of the Act and furnish the requisite details to the Department - petition disposed off.
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2024 (3) TMI 322
Violation of principles of natural justice - petitioner was not provided with an adequate opportunity to defend SCN - Under declaration of output tax - excess claim Input Tax Credit [ITC] - under declaration of ineligible ITC and ITC claim from cancelled dealers, return defaulters and tax non-payers - HELD THAT:- The impugned order, however, after recording the narration, records that the reply uploaded by the taxpayer is not satisfactory. It merely states that “And whereas, after analyzing, examining and evaluating the reply filed by the taxpayer and details available, as on date on the GST portal, reply of the taxpayer is found to be vague and miserably fails to counter the demands mentioned in the DRC-01.”
In case the GST Officer was of the view that reply was vague or further details were required, the same could have been sought from the petitioner, however, the record does not reflect that any such opportunity was given to the petitioner to clarify its reply or furnish further documents/details - Further petitioner was not provided with an adequate opportunity to defend the show cause notice by way of a hearing.
The impugned order records that petitioner has not furnished the requisite details. The GST Officer is directed to intimate to the petitioner details/documents, as maybe required to be furnished by the petitioner and petitioner shall furnish the same - Impugned order set aside - matter is remitted to the GST Officer for re-adjudication after giving an opportunity of personal hearing.
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2024 (3) TMI 321
Eligibility for tax exemption under GST Act - mixed supply - ticket charges collected in relation to an Agricultural exhibition - applicant Regional Agricultural Research Station, Pilicode falls under the definition of "Governmental Authority" or not - HELD THAT:- Entry no. 1 of the Eleventh Schedule of the Constitution covers Agriculture, including agricultural extension. Therefore, Agriculture and its extension is a function entrusted to Panchayat under Article 243G of the Constitution - it can be seen that the Kerala Agriculture University and its Regional Agricultural Research Stations are established under the KAU Act for the purpose of extension of Agriculture in the State of Kerala and the Government has more than 90% control over the University and its research institutions. Accordingly, the applicant Regional Agricultural Research Station, Pilicode falls under the definition of "Governmental Authority".
The ticket charges collected by the applicant is for admission to the said Carnival. Thus it can be seen that the above activities provided in the Carnival by the applicant are the activities in relation to agriculture and its extension. As such, if the ticket charges collected by the applicant, a Governmental Authority, is exclusively meant for admissions to the aforementioned exhibitions in the Carnival which is in relation to the functions enlisted under Article 243G of the Constitution then only it is exempted from payment of GST by virtue of SI. No. 5 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, as amended from time to time.
The amount collected from tickets will be taxable @ 18% in accordance with clause (b) of section 8 of the CGST Act as the supply is a mixed supply of service as defined under sub-section (74) of section 2 of the CGST Act.
The applicant is eligible to claim exemption from payment of GST on ticket charges vide SI. No. 5 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, as amended from time to time, subject to the condition that the services provided by the applicant on receipt of ticket charge shall be the activities in relation to the functions enlisted under Article 243G of the Constitution.
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2024 (3) TMI 320
Exemption provided under Entry number 66 of the Notification 12/2017- Central Tax (Rate) dated 28/06/2017 - Educational institute or not - Seeking clarification as to whether the educational courses which are conducted by the 'Additional Skill Acquisition Programme Kerala' falls under the taxable service or not - N/N. 12/2017-Central Tax (Rate) dated 28/06/2017 - HELD THAT:- To be qualified as an Educational Institution under para 2(y) (ii), the applicant is required to establish that the courses provided are part of a curriculum for obtaining a qualification recognised by any law for the time being in force. In this regard, the applicant has not produced the required details/documents in support of their contention that the courses are recognised by law. In the absence of relevant facts or materials, the claim of the applicant to consider them to cover under this definition may not be appropriate.
Further, as per para 2(h) of the Notification No. 12/2017- Central Tax (Rate) dated 28/06/2017, an "approved vocational education course" means, -(i) a course run by an industrial training institute or an industrial training centre affiliated to the National Council for Vocational Training or State Council for Vocational Training offering courses in designated trades notified under the Apprentices Act, 1961 (52 of 1961); or (ii) a Modular Employable Skill Course, approved by the National Council of Vocational Training, run by a person registered with the Directorate General of Training, Ministry of Skill Development and Entrepreneurship. On going through the above entry it is evident that the applicant is eligible for exemption, only when the services provided by them are in relation to either of the items listed under clause 2 (h) (i) or (ii) above.
Further, as per para 1.2 of the said agreement, the Awarding Body is an entity duly recognised by NCVET which awards or proposes to award certification to trainees for an NCVET approved qualification by ensuring quality training and reliable assessments. As per para 8.1.7 of the agreement, the 'Awarding Body' shall enter into an agreement with the training bodies to offer Vocational Education and Training in the National Skill Qualifications Committee (NSQC) approved qualifications. However, the exemption under clause 2 (h) (ii) of the notification is available only to the Modular Employable Skill Courses, approved by the National Council of Vocational Training (NCVT), run by a person registered with the Directorate General of Training, Ministry of Skill Development and Entrepreneurship. Though the applicant has been recognised by NCVET, the benefit of the said notification could not be availed by them as they have not registered with the Directorate General of Training, Ministry of Skill Development and Entrepreneurship. In the absence of supporting documents proving that they are registered with the Directorate General of Training, as required under the exemption notification, their claim cannot be considered to be covered under this definition.
The issue raised by the applicant do not sustain to avail exemption under entry no. 66 of the Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, as amended from time to time.
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2024 (3) TMI 319
Blocking of credit - Reversal of Input Tax Credit - services supplied by Larsen and Toubro Ltd in connection with the construction of runway and passenger terminal building of the applicant - ineligible credits that the applicant has taken in respect of certain supplies specifically listed in the statement of relevant facts in Annexure-1 or not - HELD THAT:- The provisions of Section 17(5)(c) and 17(5)(d) of the CGST Act relate to blocking of ITC in relation to goods or services or both used for construction of immovable property. The provisions of both the said sub-sections are to be read along with the explanations given after section 17(5) (d) and section 17(6). The provisions of both clauses (c) and (d) are inter-linked to each other and are to be read conjointly.
The applicant has entered into two common contracts with L&T; the first one being EPC contract for construction of Runway with Basic Strip, Turning Pads, Taxiways, Apron, Access Roads, Drainage System, Related Retaining Structures, Formation of Platforms for Landslide Facilities, and installation of Airfield Ground Lighting System, Visual Aids for Navigation and Bird Hazard Reduction System etc and the other being for construction of Passenger Terminal Building [PTB] with ATC, substations, installation of HVAC system, Plumbing, Fire Alarm, Fire Fighting System, CCTV, PA system, Flight Information Display system, Interior Design, internal and external finishing, Building internal access control system, Hydro pneumatic pumping system for buildings, STP, and rain water harvesting system etc. - the predominant and principal supply involved in both the contracts is construction of immovable property hence the contract cannot be artificially vivisected to consider it a contract for supply of various goods / services as contended by the applicant and the eligibility of input tax credit determined accordingly.
The supply of goods/services are integral part of the overall contract for supply of works contract services for construction of immovable property and hence the entire input tax credit of tax paid on the works contract services as per the Running Bills of L & T are not eligible being blocked credit in terms of provisions of Section 17 (5) (c) of the CGST Act, 2017.
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2024 (3) TMI 318
Classification of goods - rate of GST - Outboard Motor Engines coming under HSN Code 8407 21 00 and its spare parts exclusively used as part of fishing vessel of heading 8902 or not - collection made towards supply of materials and labour charges towards repair of fishing vessel of heading 8902 or not - marine engine coming under HSN Code 8407 supplied to the Defense Department for patrol, flood relief and rescue operations or not - solar or battery-operated electric boat motor and spare parts used for fishing purpose - solar or battery-operated electric boat motor and spare parts used for tourism purpose - levy of GST on supply of materials and labour charges incurred during the warranty period, free of cost.
Outboard motor engines [marine engines] - HELD THAT:- If the marine engines are supplied for use as part of fishing vessel falling under Customs Tariff Heading 8902, then the marine engine as part of fishing vessel will only attract GST at the rate of 5% as per the entry at SI No. 252 of Schedule I of Notification No. 01/2017 Central Tax (Rate) dated 28.06.2017 - the marine engine and its spare parts supplied for use in fishing vessels falling under Customs Tariff Heading 8902 shall attract GST at the rate of 5% as per entry at SI No. 252 of; Schedule I of Notification No. 01/2017 Central Tax (Rate) dated 28.06.2017.
Applicability of GST on the supply of materials and labour during repair works within warranty period to the marine engines and spare parts supplied by the applicant - HELD THAT:- The consideration received for the original supply includes the consideration for promise to repair or replace. Hence separate consideration is not charged for warranty repairs / replacement. The supply of goods and services for warranty repairs / replacement is incidental to the original supply and the value of supply made earlier includes the charges for the warranty supply also. Therefore, the supply of goods or services or both during warranty period without consideration in discharge of the warranty obligation is not liable to GST. However, if any additional consideration is received in respect of such supplies of goods or services or both it will be liable to GST at the rate applicable for the goods / services as per the rate schedule.
Applicability of the GST on the repair or maintenance work of fishing vessels falling under Customs Tariff Heading 8902 wherein supply of spare parts and service [labour] is involved - HELD THAT:- In the instant case the applicant has submitted that they are raising invoice for supply of repair or maintenance service of fishing vessels or marine engines for the value of spares transferred and for value of services showing separately the value of goods transferred and the service charges (labour). Hence, it is possible to ascertain the value of supply of spare parts and services (labour) separately. Therefore, in view of the clarification of CBIC in Circular No. 47/21/2018 - GST dated 08.06.2018 in cases where repair or maintenance services are supplied and the value of spare parts and services are separately charged in the invoice raised for the supply, the spare parts and the services shall attract GST respectively at the rates applicable to such spare parts and service as per the GST rate schedule as the supply of the spare parts and repair service are distinct and separately identifiable. In such cases the spare parts being supplied for use as part of fishing vessels will attract GST at the rate of 5% [2.5%-CGST + 2.5%-SGST] as per entry at SI No. 252 of Schedule I of Notification No. 01/2017-Central Tax (Rate) dated 28.06.2017 and the services [labour] was liable to GST at the rate of 18% as per SI No. 25 (ii) of the Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 as it existed till 02.06.2021 and the services [labour] will also be liable to GST at the rate of 5% with effect from 02.06.2021 as per entry at SI No. 25 (ib) - "Maintenance, repair or overhaul services in respect of ships and other vessels, their engines and other components or parts" of the Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 as inserted by Notification No. 02/2021 Central Tax (Rate) dated 02.06.2021.
Rate of tax on marine engine coming under HSN Code 8407 supplied to the Defence Department for patrol, flood relief and rescue operations - HELD THAT:- The vessels used by the Defence and other agencies for patrol, relief and rescue operations fall under Customs Tariff Heading 8906 - Other vessels including warships and lifeboats other than rowing boats. The ships /boats / vessels falling under CTH 8906 are liable to GST at the rate of 5% as per entry at SI No. 250 of Schedule I of Notification No. 01/2017 Central Tax (Rate) dated 28.06.2017. As per entry at SI No. 252 of Schedule I of Notification No. 01/2017 Central Tax (Rate) dated 28.06.2017 parts of goods of headings 8901, 8902, 8904, 8905, 8906 and 8907 falling under any chapter of the Customs Tariff attracts GST at the rate of 5 %. Therefore if the marine engines are supplied for use as part of vessel falling under Customs Tariff Heading 8906, which are used by the Department of Defence and other agencies for patrol, relief and rescue operations then the marine engine as part of such vessel will only attract GST at the rate of 5% as per the above entry.
Rate of tax applicable for the solar or battery-operated electric boat motor and spare parts when supplied for use in fishing vessels - HELD THAT:- Fishing vessels, factory ships and other vessels for processing or preserving fishery products fall under Customs Tariff Heading 8902. As per entry at SI No. 252 of Schedule I of Notification No. 01/2017 Central Tax (Rate) dated 28.06.2017 parts of goods of headings 8901, 8902, 8904, 8905, 8906 and 8907 falling under any chapter of the Customs Tariff attracts GST at the rate of 5 %. Therefore, if the solar or battery-operated electric boat motor and spare parts are supplied for use as part of fishing vessel falling under Customs Tariff Heading 8902, then the solar or battery-operated electric boat motor and spare parts as part of fishing vessel will only attract GST at the rate of 5% as per the entry at SI No. 252 of Schedule I of Notification No. 01/2017-Central Tax (Rate) dated 28.06.2017.
Rate of tax applicable for the solar or battery-operated electric boat motor and spare parts when supplied for use in boats for tourism purpose - HELD THAT:- The cruise ships, excursion boats, ferry boats, cargo ships, barges and similar vessels for transport of persons or goods fall under Customs Tariff Heading 8901 and is liable to GST at the rate of 5% as per entry at SI No. 246 of Schedule I of Notification No. 01/2017 Central Tax (Rate) dated 28.06.2017. As per entry at SI No. 252 of Schedule I of Notification No. 01/2017 Central Tax (Rate) dated 28.06.2017 parts of goods of Headings 8901, 8902, 8904, 8905, 8906 and 8907 falling under any chapter of the Customs Tariff attracts GST at the rate of 5 %. Therefore, if the solar or battery-operated electric boat motor and spare parts are supplied for use as part of such ships /boats / vessels falling under Customs Tariff Heading 8901, then the solar or battery-operated electric boat motor and spare parts as part of such ships / boats /vessels will only attract GST at the rate of 5% as per the entry at SI No. 252 of Schedule I of Notification No. 01/2017 Central Tax (Rate) dated 28.06.2017.
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2024 (3) TMI 299
Maintainability of appeal - time limitation - Cancellation of GST registration of petitioner - application passed without any application of mind - violation of principles of natural justice - HELD THAT:- In the present case, the facts are similar to one in SURENDRA BAHADUR SINGH VERSUS STATE OF U.P. THRU. PRIN. SECY. COMMERCIAL TAX (GST) LKO. AND 2 OTHERS [2023 (8) TMI 1262 - ALLAHABAD HIGH COURT], wherein the appeal was barred by time under Section 107 of the Act. However, the Division Bench in Surendra Bahadur Singh's case took into consideration the original order and set aside the same being non-reasoned and allowed the petitioner therein to file reply to the show cause notice.
The orders impugned herein are liable to be set aside. Accordingly, the order in original dated January 17, 2023 and the appellate order dated August 2, 2023 are quashed and set aside. The petitioner is directed to file its reply to the show cause notice within three weeks from date and the adjudicating authority is directed to proceed de novo and pass order after granting opportunity of hearing to the petitioner.
The writ petition is allowed.
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2024 (3) TMI 272
Interpretation of statute - provisions of sub-section (7) of Section 140 of CGST Act - Transition of the Input Tax Credit - petitioners contend that such input tax credit was not permitted to be transitioned and / or to be taken in the electronic credit ledger, although it was statutorily entitled to them, and merely, because there is a defective electronic mechanism to give effect to such input tax credit - HELD THAT:- It would be appropriate that the GST Council considers the issues inter alia the effect that Sub-Section (7) of Section 140 would bring about, on the transition of the input tax credit, being permitted under such provision. More particularly, as it is urged on behalf of the Petitioners, that it is ill-conceivable that the input tax credit which was legitimately available with the petitioners before the appointed day, cannot be permanently lost or lapsed, merely because the GST, machinery does not create an effective procedural mechanism, for such credit to be transferred to the Electronic Credit Ledger (ECL) to be utilized, thereby, creating a situation of such credit being permanently lost. It is also their submission that this can never be the intention of the legislation even on a plain reading of sub-section (7) of Section 140.
It is opined that, an appropriate examination of such issues by the GST Council shall assist the Court in taking an appropriate view of the matter.
These proceedings adjourned to 9th August 2024.
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2024 (3) TMI 271
Maintainability of appeal - rejection solely on the ground of limitation - HELD THAT:- The appeals are restored on the file of the Appellate Authority. Liberty is granted to the petitioner to file an application seeking condonation of delay within a period of two weeks from today. On such an application being filed, the Appellate Authority shall consider the application seeking condonation of delay in accordance with law without being influenced by anything stated in this order.
Petition disposed off.
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2024 (3) TMI 270
Refund of amount deposited during investigation proceedings - Recovery of wrongful input tax credit - alleged discrepancy noticed during the search operation - HELD THAT:- In the instant case, the deposit made by the Petitioner was at 3:10 and 3:18 AM during the search operation being carried out which continued till 5:00 AM The fact that Petitioner was made to deposit the amount at 3:10 and 3:18 AM before the search ended and the officers left at 5:00 AM, shows that the deposit was not voluntary and contrary to the CBIC Instruction No. 01/2022-2023 dated 25.05.2022.
The contention of learned counsel for the respondent that the deposit was voluntary for the reason that there is no material placed on record by respondent to show as to why petitioner would voluntarily deposit the said amount when there was no claim made against the petitioner as on the date of deposit, cannot be accepted.
There are merit in the said submission of learned counsel for the Respondent and hold that no interest would be liable to be paid on the amount deposited by way of an adjustment of the credit amount standing in the Electronic Credit Ledger, unless an appropriate application had already been made, prior to the alleged non-voluntary deposit, claiming refund or as an adjustment towards tax due - Respondents are directed to, within four weeks, refund the amount of Rs. 15,06,342/- to the Petitioner alongwith statutory interest @ 6% p.a. from date of deposit till repayment and the amount of Rs. 25,00,000/- by forthwith re-crediting the same to the Electronic Credit Ledger of the Petitioner.
Petition disposed off.
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2024 (3) TMI 269
Refund of deposit - reversal of ITC - The amount was allegedly recovered from them during search proceedings - HELD THAT:- In in the instant case, the deposit made by the Petitioner before the search ended and the officers left, shows that the deposit was not voluntary and contrary to the CBIC Instruction No. 01/2022-2023 dated 25.05.2022.
The contention of learned counsel for the respondent that the deposit was voluntary for the reason that there is no material placed on record by respondent to show as to why petitioner would voluntarily deposit the said amount when there was no claim made against the petitioner as on the date of deposit, cannot be accepted.
Therefore, the amounts that were deposited on behalf of petitioner lacked voluntariness. Accordingly, said amount are liable to be returned with interest - Respondents are directed to, within four weeks, refund the amount of Rs. 35,00,000/- to the Petitioner alongwith statutory interest @ 6% p.a. from date of deposit till repayment.
Petition disposed off.
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2024 (3) TMI 268
Transitional credit - Petition is a works contractor - TDS was transitioned under Section 140 of the TNGST Act, 2017, along with the “purchase tax” paid by the petitioner, which was availed as Input Tax Credit - Transition of Tax Deducted at Source (TDS) under Section 13 of the TNVAT Act, 2006, on Works Contract.
Transition of ITC validly availed - HELD THAT:- On perusing the records, there is also no doubt that the petitioner was entitled to ITC on Section 12(2) of the TNVAT Act, 2006. To that extent, there is merits in the submission of the petitioner - If ITC was validly availed by the petitioner on “purchase tax” paid by the petitioner under Section 12(1) of the TNVAT Act, 2006 and same was remaining un-utilized, the petitioner was entitled to transition the same under Section 140 of the TNGST Act, 2017 as transitional credit - The petitioner is therefore justified in assailing the impugned Assessment Order although the limitation to file an appeal had expired long back.
Transition of Tax Deducted at Source (TDS) under Section 13 of the TNVAT Act, 2006, on Works Contract - HELD THAT:- There is no scope for transmitting the credit under Section 140 of the TNGST Act, 2017. Section 140 of the TNGST Act, 2017 is applicable only to ITC - the provisions of the TNVAT Act, 2006 mandates adjustment of the amount so deducted at source and paid by the employer who engages the services of the works contractor. If indeed there was deduction of tax at source by the person who engaged the services of the petitioner, such amount was to be adjusted towards the tax liability of the petitioner. Thus, surplus ITC after adjustment of the tax liability is to be refunded to the petitioner after assessment under Rule 10(A) and 10(B) of TNVAT Rules, 2007.
Excess of ITC remaining unutilized after such adjustment was to be refunded back to the petitioner if where there were no arrears of tax under the Act from the petitioner. If this was followed, there would have been surplus of ITC which was to be either refunded back to the petitioner or allowed to be transitioned under Section 140 of the TNGST Act, 2017.
The petitioner therefore deserves a chance to defend the case as the impugned Assessment Order has been passed during the period when the country was under semi-lock down mode. If the VAT-TDS had indeed remained unutilized for discharging tax liability under TNVAT Act, 2006, there should be a fresh adjustment of the amount out of VAT-TDS towards tax liability of the petitioner and thereafter ITC which would have remained unutilized ought to have allowed to be transitioned under Section 140 of the Act or refunded to the petitioner under Section 54 of the TNGST Act, 2017 read with TNVAT Act, 2006.
This issue would thereafter require a proper re-consideration. Therefore, these writ petitions are allowed by way of remand.
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2024 (3) TMI 267
Cancellation of GST registration of petitioner with retrospective effect - returns not filed for continuous period of more than six months - HELD THAT:- As per the petitioner a family member of the petitioner had seriously fallen ill during the period and thus returns could not be filed. He states that he is willing to file returns and pay the charges for delayed filing.
The order of cancellation dated 07.03.2023 is accordingly set aside. GST registration of the petitioner is restored, subject to petitioner filing requisite returns up to date and complying with Rule 23 and its provisos of the Central Goods and Service Tax Rules, 2017 - Petition allowed.
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2024 (3) TMI 266
Wilful violation of the order - Petitioner submits that the present contempt case has been rendered infructuous in view of the fact that the respondent-authority has now passed the order - HELD THAT:- Contempt Case (Cvl.) No.663 of 2020 stands disposed of as such.
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2024 (3) TMI 264
Cancellation of GST registration of petitioner - appeal barred by limitation or not - appeal was filed after a period of four months - HELD THAT:- The mandatory prerequisites for reckoning the start point of period of limitation are these. The authority has to make a finding in regard to the mode of copy of the order and also whether service upon the concerned person is complete. Secondly the authority has to record its satisfaction that the order has been "communicated to the assessee/person".
The impugned order does not reference the mode of service of the order nor does it record its satisfaction of service in the order. The finding that the order was "communicated to the assessee/person" is also absent. Learned tribunal was misdirected in law, inasmuch as, it neglected to record its satisfaction of the mandatory prerequisites for triggering the clock of limitation.
The impugned order dated 28.09.2022 passed by the respondent No.2/learned appellate authority is liable to be set aside and is set aside - matter is remitted to the learned appellate authority for fresh adjudication in accordance with law - Petition allowed.
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