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GST - Case Laws
Showing 441 to 460 of 16293 Records
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2025 (5) TMI 1677
Maintainability of the writ petition - Parameters for issuance of SCN - fraud/ wilful misstatement/suppression of facts - invoking the extended period of limitation under Section 74 - supplies made without purchasing any goods - evasion of tax - lack of jurisdictional foundation - non supply of a particular document - exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India - HELD THAT:- No doubt it is necessary that there must be an element of fraud/wilful misstatement/suppression of facts, the same must be apparrent from the allegations made in the show cause notice, it is not necessary that the specific words as used in the section have to be reproduced/allegations be made by using the words indicated in the provision, for bringing the case within the parameters prescribed under the provisions of Section 74 of the Act.
Thus, the allegations made in the show cause notice falls within the parameters of Section 74 of the Act and, therefore, the plea sought to be raised in this regard cannot be countenanced.
So far as plea raised pertaining to the supply of the SIB report and allegedly not quoting the part of the reply to the show cause notice wherein the application demanding the SIB report was annexed, as to whether there has been a prejudice on account of the same, essentially requires determination on merits as mere non supply of a particular document unless the same is prejudicial to the petitioner affecting his right to defend the show cause notice by itself cannot vitiate the order impugned.
Consequently, we do not find any reason to entertain the present writ petition in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India. The writ petition is, therefore, dismissed leaving it open for the petitioner to avail remedy of appeal in accordance with law.
We make it clear that the observations made herein have been made with a view to examine the maintainability of the writ petition and none of the observations shall come in the way of the petitioner in raising any of the issues before the Appellate Authority.
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2025 (5) TMI 1676
Validity of rejection of appeal on the ground of declaration in Form GST PMT-03 - Delay in preferring the appeal - rejection of the refund application without issuance of a show cause notice - cancellation of the petitioner's registration - restoration of registration with retrospective effect - entitlement to the benefit of refund alongwith interest - HELD THAT:- It appears that the appellate authority had also rejected the appeal on the ground of delay. It is unfortunate, that the petitioner has been made to suffer for no fault of his own. At the first instance the respondents appears to have cancelled the petitioner’s registration and immediately thereafter had proceeded to cancel the petitioner’s refund application amounting to Rs.97,45,520/- even without a show-cause. Subsequently, at the instance of the petitioner when the petitioner’s registration under the said Act was restored by an order dated 28th March, 2022 with effect from 25th October, 2019, ordinarily the petitioner’s refund application ought to have been restored as well since, the only ground for rejection of such application was cancellation of the petitioner’s registration. The matter did not stop there. The petitioner had to run from pillar to post. Despite the above the petitioner did not succeed, even after filing of an application in Form GST PMT-03 by providing an undertaking that the petitioner shall not file an appeal from the order to be passed thereon. When the respondents did not take any steps in the matter and did not credit the aforesaid amount, the petitioner approached the appellate authority from the original order of rejection.
The appellate authority appears to have dealt with the matter in a reckless manner and appears to have rejected the appeal on the ground that the petitioner had given an undertaking while filing Form PMT-03 that he shall not prefer an appeal from the determination to be made. The conduct of the concerned respondent is deplorable to say the least.
Thus, I set aside the order dated 11th December, 2023 passed by the appellate authority and remand the matter back to the appellate authority for a fresh hearing on merits. The matter shall not be dealt with the officer concerned who had dealt the matter previously. The appellate authority shall hear out and dispose of the appeal as expeditiously as possible, preferably within a period of three weeks from the date of communication of this order by passing a reasoned order and upon giving an opportunity of hearing to the petitioner.
Needless to note, if the appellate authority is of the view that the petitioner is entitled to the benefit of refund, such refund shall carry an appropriate statutory interest and consequent thereupon the entire amount of refund alongwith interest shall be credited to the petitioner’s credit ledger forthwith.
With the above observations and directions the writ petition is disposed of.
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2025 (5) TMI 1675
Seizure of goods in transit - lack of legible reasons for seizure - Notice not served u/s 129 instead moved on to take up the process under Section 130 - relying instead on a printed proforma without detailed explanation - procedural compliance for confiscations - HELD THAT- This Court is not willing to look into the instructions produced by the learned Government Pleader, given by the authorities, to justify such seizure. The law in this regard is well settled by the judgment of the Hon’ble Supreme Court in the case of Mohinder Singh Gill & Anr vs. The Chief Election Commissioner, [1977 (12) TMI 138 - SUPREME COURT] that additional reasons cannot be supplemented after the impugned order had been passed.
Thus, these Writ Petitions are disposed of with the following directions:
i) The concerned authorities, who had seized the goods of the petitioner, shall issue a notice under Section 129(3) of G.S.T Act within two days from today;
ii) The order ascertaining the documents of the goods and consequent tax, if any, payable on such goods shall be fixed within three days thereafter;
iii) This shall be done after notice and opportunity is being given to the petitioner;
iv) The goods of the petitioner would then be released in terms of Section 129(1) of the G.S.T Act;
v) The proceedings under Section 130 of G.S.T Act shall be initiated only after this process has been completed.
This is yet another case which requires the Commissioner of Commercial Taxes to sensitize his officers about the manner in which such confiscations are to be carried out. There is every need for the Commissioner of Commercial Taxes, to conduct coaching classes, if necessary, to train his officers to follow the law and the procedural safeguards set out in the law.
The gist of the order shall be informed to the concerned officers by the learned Government Pleader.
As a sequel, miscellaneous petitions, if any, shall stand closed.
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2025 (5) TMI 1674
Effect of non-inclusion of Document Identification Number (DIN) number on proceedings and absence of the signature of the assessing officer - attachment of account for recovery of amount - Compliance of precedents and the CBIC circular dated 23.12.2019, bearing No.128/47/2019-GST - Validity of impugned assessment order - HELD THAT:- A Division Bench of this Court in the case of M/s. Cluster Enterprises Vs. The Deputy Assistant 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.
Thus, the non-mention of a DIN number and absence of the signature of the assessing officer, in the impugned assessment order would have to be set aside.
Accordingly, this Writ Petition is disposed of setting aside the impugned assessment order in Form GST DRC-07, dated 01.10.2024, and also the order of bank attachment, issued by the 1st respondent, with liberty to the 1st respondent to conduct fresh assessment, after giving notice and by assigning a signature to the said order. The period from the date of the impugned assessment order, till the date of receipt of this Order shall be excluded for the purposes of limitation. There shall be no order as to costs.
As a sequel, miscellaneous petitions, pending if any, shall stand closed.
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2025 (5) TMI 1614
Mandate of pre-deposit - Challenge to impugned Letter, directing payment through Electronic Cash Ledger, insofar as it has been issued arbitrarily and in violation of Article 14 of the Constitution - compliance with Section 107(6)(b) of the CGST Act using the Electronic Credit Ledger.
HELD THAT:- It is brought to the notice before the Court that the Rule 96(10) of the CGST has been deleted in the year 2024.
We find that the impugned order passed by the High Court [2024 (10) TMI 1608 - GUJARAT HIGH COURT] would not call for any interference. Hence, the Special Leave Petition is dismissed.
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2025 (5) TMI 1613
Blocking of ITC in the Electronic Credit Ledger of the Appellants by invoking Rule 86A of the CGST Rules - justification in not providing/granting a pre-decisional hearing to the appellants before passing the impugned order blocking its Electronic Credit Ledger under Rule 86A of the CGST Rules - violation of principles of natural justice - HELD THAT:- There is a delay of 243 days in filing the Special Leave Petitions which has not been satisfactorily explained. Even otherwise, we have gone through the Special Leave Petition and do not find any merit in the same.
The Special Leave Petitions are, therefore, dismissed on the ground of delay as well as on merits.
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2025 (5) TMI 1612
Condonation of delay in filing the Special Leave Petition - Classification of goods - fusible inter lining fabric of cotton - correctly classifiable under Heading 5903 of Chapter 59 to the First Schedule to the Custom Tariff Act, 1975 or not - HELD THAT:- There is a delay of 225 days in filing the Special Leave Petition which has not been satisfactorily explained. Even otherwise, we have gone through the Special Leave Petition and do not find any merit in the same.
The Special Leave Petition is, therefore, dismissed on the ground of delay as well as on merits.
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2025 (5) TMI 1611
Demand of GST along with interest and penalty - wrongly availed or utilized input tax credit - Show Cause Notice issued subsequent to the issuance of the order in Form DRC-07 - Violation of the principles of natural justice - Validity and Jurisdiction of the Show Cause Notice and Order under Section 74 of HPGST/CGST Act - HELD THAT:- It is not the case where the Court is directing the petitioner to avail of an alternate remedy rather the Court is of the view that the petitioner has to face the show cause notice and reply to the same. Violation of the principles of natural justice will only come into play, in case, the respondents do not afford a chance to the petitioner to furnish reply to the show cause notice. This is not the fact situation obtaining in the present case.
Clearly, the present petition is a misadventure and the same is accordingly dismissed, so also pending applications, if any.
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2025 (5) TMI 1610
Extension of time period - Show Cause Notice not uploaded on the portal - Validity of Order issued beyond the prescribed limitation period as fixed by Notification No. 56/2023-Central Tax - HELD THAT:- As per the Department, the Show Cause Notice was not uploaded on the portal. The pre-notice consultation was also dispatched on 16th October, 2023 and the Show Cause Notice was dispatched on 29th November, 2023. However, ld. Senior Standing Counsel concedes that the two documents were not uploaded on the portal.
A perusal of the hard copy of the impugned order which has been handed across by the Petitioner shows that the same was signed on 30th April, 2024 but the Form DRC-07 was uploaded on 5th May, 2024.
Accordingly, it is deemed appropriate to direct that the GST Department ought to create a proper SOP for following a consistent practice of:
a) Uploading all notices, orders and communications on the portal; Secondly - by sending all such communications, notices and orders through email on the registered email address; Finally - the said correspondence could also be sent by speed post;
b) In respect of lack of signatures and DIN Numbers on SCNs and on the Orders-in-Original, the Department ought to ensure that the name of the Officer, the digital signature or the physical signature along with the date and the DIN Number ought to be made available on all the SCNs and orders that are passed.
c) One of the grievances usually raised is that there is no consistency between the date of the order and the date when it was uploaded/issued on the portal. Grievances are thus raised as to the date on which the order itself is passed. The GST Department should make an endeavour to ensure that on the date when the order is passed, it is uploaded on the very same day.
At this stage, Ms. Benjamin submits that the GST Department has a published protocol and GST officials are bound to comply with the protocol as mandated. Let the said existing protocol, if any, be considered in the light of the above directions and if any changes need to be made or if one SOP needs to be prepared and issued comprehensively covering all the above issues, the same be done.
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2025 (5) TMI 1609
Maintainability of a writ petition - statutory remedy available u/s 107 - Show Cause Notice issued under Section 74 and 122 of the CGST Act - fraudulently availed Input Tax Credit -fake invoices without supply of goods or services - No opportunity of personal hearing - Violation of principles of natural justice - HELD THAT:- Considering the nature of the transactions and the statement made by the Petitioner before the Department, this Court is of the opinion that exercising writ jurisdiction in this case is completely unwarranted. The network of firms which were being operated, the question whether any actual supplies were made or not and whether ITC was fraudulently availed would be factual issues that require deeper examination of evidence and documents. There is no reason to disbelieve the Department that the personal hearing notice was issued when admittedly the Show Cause Notice and the RUDs have also been issued. Moreover, Paragraph No. 8.1 of the impugned order records that the personal hearing notices have been issued. The Petitioners have been all along aware of the proceedings in the SCN.
Considering the allegation of fraudulent availment of the ITC and the fact that the Petitioner in his statement states that he does not know as to where the goods were delivered and the same were given to one Mr. Gopal Sharma, it is clear that there are factual issues that are required to be looked into. There is no argument of lack of jurisdiction or arbitrary exercise of power.
The Supreme Court in the decision in The Assistant Commissioner of State Tax & Ors. v. M/s Commercial Steel Limited [2021 (9) TMI 480 - SUPREME COURT] discussed the maintainability of a writ petition under Article 226. In the said decision, the Supreme Court reiterated the position that existence of an alternative remedy is not absolute bar to the maintainability of a writ petition, however, a writ petition under Article 226 can only be filed under exceptional circumstances.
Thus, the impugned order is an appealable order and the principles laid down in the abovementioned decision i.e. The Assistant Commissioner of State Tax & Ors. (Supra), the Petitioners are relegated to avail of the appellate remedy.
The Petitioner shall approach the Appellate Authority under Section 107 of the CGST Act along with the requisite pre-deposit by 15th July, 2025.
The petition is disposed of in above terms.
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2025 (5) TMI 1608
Availability of alternative statutory remedy of appeal - Deduction of tax at source - Imposition of tax along with interest, and penalty - Non-supply of relied upon documents - Violation of principles of natural justice - mismatch between the total taxable turnover and the liability incurred by the petitioner - HELD THAT:- At the outset, it is to be indicated that the petitioner has a statutory remedy of appeal under Section 107 (1) of the TGST Act. The appeal can be preferred within a period of 90 days from the date of the order in original and delay if any can be condoned up to 30 days thereafter under Section 107 (4) of the Act of 2017. The allegation of non-supply of relied upon documents to the petitioner can be a facet of the principles of natural justice which is open for the petitioner to be raised in the appeal along with all other grounds of law and fact as are available to the petitioner. However, on the face of it, it cannot be said that the proceedings suffer from violation of principles of natural justice as the impugned order in original has been passed after issuance of proper show-cause notice and consideration of the reply of the petitioner.
Thus, we are not inclined to entertain the writ petitions on the ground of availability of alternative statutory remedy of appeal. We, therefore, refrain from making any observations on other grounds on merits which the petitioner may raise before the appellate forum.
Hence, the writ petitions are dismissed with liberty to the petitioner to approach the Appellate Authority, in accordance with law.
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2025 (5) TMI 1607
Rejection of appeal by appellate authority having filed beyond the statutory period of limitation - inordinate delay and lack of power in condoning the delay beyond the outer cap fixed under sub-Section (4) of Section 107 - Validity of show cause notice and the demand order - violation of the statutory provision - Imposition of penalty and redemption fine under Section 130 read with Section 122 of the OGST Act, 2017 - shortage of the stock of goods noticed at the business premises at the time of search and seizure operation - evading the tax in clandestine manner - HELD THAT:- In the present case, there is no dispute on the conferment of power upon the proper officer to make inspection, search and seizure upon the formation of a reason to believe that a taxable person has suppressed any transaction relating to the supply of goods and services or both or the stock of goods in hand or any goods liable to confiscation or any documents, books or things which in his opinion shall be useful and relevant to any proceeding under the Act, sub-Section (2) of Section 67.
It is thus evident and eminent from the aforesaid provision that the power is conferred upon the proper officer to make search and seizure on a perceive reason to believe the eventualities provided in Section 67 liable to confiscation. It therefore cannot be said that the power to confiscate is eminently and/or evidently absent in the said proper officer and, therefore, exercise of such power cannot be fundamentally flawed on the ground of complete lack of inherent jurisdiction and powers. Even Section 122 of the Act exposes the taxable person liable for a penalty in the event it supplies any goods or services or both without issue of any invoices or issues an incorrect or false invoice with regard to any supply apart from the other incidents provided therein. Section 130 of the Act contains an exhaustive provision relating to the confiscation of goods or a conveyance and a levy of penalty which imbibes within itself the eventuality of supplying or receiving any goods in contravention to any provisions of the Act or the Rules made thereunder with intend to evade payment of tax. Sub-Section (2) of Section 130 of the Act postulates an option to pay a redemption fine in lieu of the confiscation. The conjoint reading of the provision as aforesaid are the expositions of the powers and the jurisdiction conferred upon the proper authorities not only to the inspection, search and seizure, but also the confiscation the goods and the payment of redemption fine in lieu of such confiscation. It is thus not a case of a complete lack of jurisdiction or powers, but hovers around the exercise of such powers or jurisdiction in relation to goods liable to confiscation and the meaning to be assigned to the word ‘goods’. The word ‘goods’ is defined in Section 2 (52) of the said Act to mean every kind of movable property other than money and securities and includes actionable claim, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before supply or under a contract of supply.
We find no ambiguity in the order of the appellate authority as the law is somewhat settled that the moment the outer cap is fixed in the statute beyond which the authority cannot travel, the rejection in this regard cannot be faulted with. The discretion vested upon the authority to condone the delay if brindled with an outer cap being fixed in the statute, the authority cannot exercise the power beyond such limit.
The petitioner was conscious that the order of the appellate authority in rejecting the application on the ground of limitation cannot be assailed on the legal parameters took a circuitous route under Article 226 of the Constitution of India assailing the show cause notice and imposition of the redemption fine in lieu of confiscation of a goods which is not physically available.
In the identical circumstances, the coordinate Bench in case of Shri D. Murali Mohan Patanaik (2023 (2) TMI 93 - ORISSA HIGH COURT) as referred above found that once the payment is made without protest it is not open to challenge the entire procedure adopted for confiscation liable to be struck down. Though the petitioner in the instant case pleaded that the said payment of redemption fine and penalty was under protest, but we do not find from the documents that any such protest was recorded; rather, there has been categorical stand taken before the authority admitting the shortage of the stocks and conceding the payment of penalty and the fine in lieu of confiscation.
The comity of the judicial discipline demands the adherence of the decision of the coordinate Bench and the only option left to the subsequent coordinate Bench in the event of any dissent to refer the matter to the Chief Justice to constitute a Larger Bench. The subsequent coordinate Bench must record a cogent reason for dissent and in the event, noticeable materials are not eminent and evident, uniformity in a decision is the virtue.
Thus, we do not find that the instant case warrants invocation of extraordinary powers conferred under Article 226 of the Constitution of India.
The writ petition thus fails. No order as to costs.
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2025 (5) TMI 1606
Application seeking revocation of GST cancellation - Non-filing of GST returns for a continuous period of six months and more - time limit prescribed for filing of revocation application - petitioner is ready and willing to comply with all the formalities required as per proviso to sub-rule (4) of Rule 22 of the CGST Rules, 2017 - HELD THAT:- This Court is of the considered view that in the event the petitioner approaches the officer, duly empowered, by furnishing all the pending returns and make full payment of the tax dues, along with applicable interest and late fee, the officer duly empowered, has the authority and jurisdiction to drop the proceedings and pass an order in the prescribed Form.
Thus, this writ petition is disposed of by providing that the petitioner shall approach the concerned authority within a period of 2 (two) months from today seeking restoration of her GST registration. If the petitioner submits such an application and complies with all the requirements as provided in the proviso to sub-rule (4) of Rule 22 of the CGST Rules, 2017, the concerned authority shall consider the application of the petitioner for restoration of her GST registration in accordance with law and shall take necessary steps for restoration of GST registration of the petitioner as expeditiously as possible.
With the observations made and the direction given above, the writ petition is disposed of. No cost.
It is needless to say that the period as stipulated under Section 73 (10) of the Central GST Act/State GST Act shall be computed from the date of the instant order, except for the financial year 2024-25, which shall be as per Section 44 of the Central GST Act/State GST Act. The petitioner herein also be liable to make payment of arrears i.e. tax, penalty, interest and late fees.
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2025 (5) TMI 1605
Seeking to consolidate the appeal before the Appellate Authority under Section 107 - common SCN issued in respect of three financial years - Wrongful availment of Input Tax Credit (‘ITC’) - issuance of goodless invoices - HELD THAT:- Considering the fact that it was a common SCN, a common impugned order has been passed and only Financial Year 2017-18 is mentioned in respect of the impugned order 3rd February, 2025, the Petitioner is permitted to file one consolidated appeal before the Appellate Authority under Section 107 of the Central Goods and Service Tax Act, 2017.
Considering the amount that has been demanded from the Petitioner and the pre-deposit that is to be made, the Petitioner is given time till 10th July, 2025 to file the said appeal along with the pre-deposit on the tax amount.
The ground in respect of Form GST DRC-07 having been improperly issued, may also be raised before the Appellate Authority by the Petitioner.
Petition is disposed of in these terms.
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2025 (5) TMI 1604
Application seeking release of the goods under Section 129(1)(a) of the WBGST & CGST Act, 2017 - claim for ownership - e-way bill - validity of the transaction and the factum of issuance of such tax invoice - HELD THAT:- In the instant case the petitioners could not establish ownership over the goods. However, at the same time the aforesaid decision cannot be accepted as final as the petitioner no. 1 has a recourse in the form of an appeal to establish its claim for ownership under the said Act.
Admittedly, in this case, I find that an order under Section 129 (3) of the said Act has already been passed. Considering that the statement of Siddhartha Ghosh has been relied upon in refusing to accept the petitioners as owner of the aforesaid goods, ordinarily the petitioners ought to have been afforded an opportunity to confront the said Siddhartha Ghosh. The petitioners must, therefore, be permitted to establish ownership of the goods before the Appellate Authority. If the respondents seek to rely on the statement of the Siddhartha Ghosh, the respondents must make available such statement of Siddhartha Ghosh for the petitioners to respond to the same. The respondents should produce Siddhartha Ghosh as witness in the proceedings for the petitioners to cross-examine him, in the event the petitioners choose to file an appeal under Section 129 (3) of the said Act.
Thus, I am of the view that if the petitioners file an appeal from the order passed under Section 129 (3) of the said Act within a period of 4 weeks from date, the same shall be heard on merits and be disposed of within a period of 16 weeks from filing the appeal. The appellate authority shall hear out and decide the appeal on merits having regard to the observations made herein and upon giving an opportunity to the petitioners to establish the factum of ownership of the goods. The petitioner shall be given opportunity to file the appeal manually and the respondents are directed to assist the petitioner in filing such appeal.
With the aforesaid observations, the instant writ petitioner being WPA 9544 of 2025 is disposed of.
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2025 (5) TMI 1603
Double demand raised in respect of the same period - Availability of alternative statutory remedy of appeal - Fraudulent availment of Input Tax Credit - HELD THAT:- Since there are two demands in respect of the same period and there could be some overlap, it is directed that the Petitioner may approach the Commissioner Appeals under Section 107 of the Central Goods and Services Tax Act, 2017, in respect of both orders.
However, at this stage the pre-deposit shall be made in respect of only one of the demands, i.e., the demand raised under order dated 02nd February, 2025. Further, while making the pre-deposit credit for the amount of Rs. 30,00,000/- which is already stated to have been deposited shall also be given.
This shall be, however, subject to any further orders the Appellate Authority may pass.
The Petitioner is permitted to file an appeal within a period of 30 days from today along with the pre-deposit of 10% after deduction of the amount of Rs. 30,00,000/-. If the same is filed within 30 days, both the appeals shall be adjudicated on merits and shall not be dismissed on grounds for limitation.
Accordingly, both the writ petitions are disposed of in above terms.
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2025 (5) TMI 1602
Application seeking revocation of GST cancellation - Non-filing of GST returns for a continuous period of six months and more - petitioner is ready and willing to comply with all the formalities required as per proviso to sub-rule (4) of Rule 22 of the CGST Rules, 2017 - HELD THAT:- This Court is of the considered view that in the event the petitioner approaches the officer, duly empowered, by furnishing all the pending returns and make full payment of the tax dues, along with applicable interest and late fee, the officer duly empowered, has the authority and jurisdiction to drop the proceedings and pass an order in the prescribed Form.
Thus, this writ petition is disposed of by providing that the petitioner shall approach the concerned authority within a period of 2 (two) months from today seeking restoration of his GST registration. If the petitioner submits such an application and complies with all the requirements as provided in the proviso to sub-rule (4) of Rule 22 of the CGST Rules, 2017, the concerned authority shall consider the application of the petitioner for restoration of his GST registration in accordance with law and shall take necessary steps for restoration of GST registration of the petitioner as expeditiously as possible.
With the observations made and the direction given above, the writ petition is disposed of.
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2025 (5) TMI 1601
Availability of alternative statutory remedy of appeal - Exemption of contracts as per Annexure-P9 Notification bearing No. 25 of 2012 Service Tax - Imposition of tax liability under the CGST Act - HELD THAT:- Since the consideration is based on the agreements, we are of the opinion that the petitioner should avail the appellate remedy, as is available under Section 107 of the B.G.S.T Act. If an appeal is filed within one month from today, we direct that the appeal be accepted without reckoning the delay and the same considered on merits.
The writ petition stands disposed of with the above directions.
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2025 (5) TMI 1600
Classification and rate of GST on the Contract - valuation - Nature of Supply - Composite Supply or Works Contract - Scope of work - EPC contracts for rooftop solar power plant including supply of multiple components within the said power plant - Applicability of Notification No. 24/2018-Central Tax (Rate) - HELD THAT:- From a conjoint reading of Sec. 2 (30), 2 (119) and Entry no. 6 of Schedule II of the GST Act it is evident that works contract as defined under Sec. 2 (119) is a composite supply where the supply is to be treated as supply of services. So there can be two types of composite supply. One type is composite supply of the nature of works contract. The other type is composite supply other than works contract where the nature of supply (whether supply of goods or services) is to be determined in terms of principal supply. Now we must bear in mind that the activities which come under the ambit of works contract as defined under Sec. 2 (119) must be in relation to any immovable property.
Since the term immovable property is not defined in the GST Act, we have to refer to the General Clauses Act, 1897 as well as the Transfer of Property Act, 1882 and different judicial pronouncements defining immovable property.
The preceding discussion clearly points out that the element of being permanently fastened to anything attached to the earth is very much present in case of rooftop solar power plant. Civil structures are created for installation of different equipments of the plant and those structures become inseparable part of the whole power plant. At the completion of the work it is the entire rooftop solar power plant with all the civil works done is transferred to the recipient. Some individual equipments/ components may be detached from the installation itself but in its entirety the grid connected rooftop solar power plant is immovable in nature. If we consider it in terms of degree of annexation, grid connected rooftop solar power plant is not a kind of installation that is capable of shifting from time to time. Rather the project in its entirety can be viewed as permanent both in terms of its use and location. It is not the case that the solar power plant has been installed somewhere today and will be shifted elsewhere the next day.
Thus, it can be said that supply, design, installation, testing and commissioning of Grid connected rooftop solar power plant is a composite supply of the nature of works contract as defined under section 2 (119) of the GST Act.
Once it is said so, the question that follows is whether the tax rate of supply of services is applicable on the whole amount of supply since works contract is treated as supply of service. To our considered opinion, the supply, design, installation, testing and commissioning of Grid connected rooftop solar power plant deserves a different treatment when it comes to the question of rate of tax.
It is clear that whenever we go for deciding the tax rate applicable for the supply, design, installation, testing and commissioning of Grid connected rooftop solar power plant (as is the case in the present application) we have to do it by interpreting Entry no. 38 of Notification No. 01/ 2017–Central Tax (Rate) Dt. 28.06.2017 as amended in conjunction with Entry No. 201A of Notification No. 11/2017–Central Tax (Rate) Dt. 28.06.2017 as amended. The two entries are interlinked in such a way that they cannot be read and interpreted separately.
Two things that emerge from the above discussion are as under:
Firstly, the value of supply in respect of the goods and services referred to in Entry No. 201A of Notification No. 11/2017–Central Tax (Rate) Dt. 28.06.2017 as amended and Entry no. 38 of Notification No. 01/2017–Central Tax (Rate) Dt. 28.06.2017 as amended is the Gross consideration charged by the supplier for the entire supply.
Secondly, the conjoint reading of Entry no. 38 of Notification No. 01/2017–Central Tax (Rate) Dt. 28.06.2017 as amended and Entry No. 201A of Notification No. 11/2017–Central Tax (Rate) Dt. 28.06.2017 as amended hints at bifurcation of the values of the total supply into 70 and 30 per cent. for supply of goods and supply of services respectively. The 70 per cent. portion of the supply will attract tax rate of the goods supplied i.e. solar power generator (in the present case) and the rest 30 per cent will attract the tax rate of the service under serial no. 38.
Thus, we rule as under:
The supply of components of the solar power plant along with the erection of the same would be treated as a composite supply of the nature of works contract.
As per Entry no. 201 of Notification No. 01/ 2017 supra, tax rate should be 12% IGST on seventy per cent. of the gross value charged by the supplier and 18% IGST on thirty per cent. of the gross value charged by the supplier.
The value referred to here is the gross consideration charged by the supplier for the entire supply.
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2025 (5) TMI 1519
Condonation of delay - jurisdiction under Article 136 of the Constitution of India - HELD THAT:- Delay condoned.
No case for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India. The Special Leave Petition is accordingly dismissed.
Pending application, if any, also stands disposed of.
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9911796707
