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GST - Case Laws
Showing 481 to 500 of 11456 Records
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2024 (3) TMI 627 - JHARKHAND HIGH COURT
Contempt case - willful violation of the order passed - transitional input tax credit by filling up the Form GST TRAN-I - HELD THAT:- The learned counsel for the petitioner, on instructions, submits that the present contempt case has been rendered infructuous because necessary order has now been passed by the respondent-authority.
Contempt Case stands disposed of as such.
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2024 (3) TMI 626 - JHARKHAND HIGH COURT
Contempt case - willful violation of the order passed - HELD THAT:- The learned counsel for the petitioner, on instructions, submits that in view of the subsequent developments the present contempt case has been rendered infructuous.
Contempt Case stands disposed of as such.
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2024 (3) TMI 625 - APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL
Classification of JAC OLIVOL BODY OIL - classifiable under HSN 3004 as a medicament Or under HSN 3304 (cosmetic) - GST at the rate of 12% (6% CGST & 6% WBGST) - twin tests of classification - ''the Common Parlance test and the Ingredients test-to-determine whether a product qualifies as a medicament under Chapter 30'' - Difference Of opinion between members - HELD THAT:- In this particular instance, the appellant accompanied their additional written submission with a certificate from the Directorate of ISM Drugs Control, Government of West Bengal, which granted approval for the drug formulation of "JAC OLIVOL" Herbal Body Oil. The certificate detailed the constituents of the product, including their respective quantities and names, and included Haridra, Manjistha, Arjuna, Daruharidra, Karpoor, Nimba Oil, Badam Oil, and Oilve Oil, among others. The assertion that all of these constituents possess medicinal properties has not been contested by WBAAR.
Therefore, it appears that the instant product satisfies the second criterion of the twin test that is "the Ingredients test".
The judgment in the case of The Commissioner Commercial Tax Uttarakhand Vs Perfetti Van Melle India Pvt Ltd [2008 (7) TMI 870 - UTTARAKHAND HIGH COURT] holding that only for the reasons these items (Chlormint, Happydent) are also purchased by some customers for taste also, does not make them confectionary items particularly when the same are manufactured under a valid drug licence. Based on this decision, it can be deduced that the perceived utility of a product does not necessarily serve as a determining factor in its classification.
WBAAR's classification of the product, which was predicated primarily on the Common Parlance test and neglected a number of previously discussed factors and cited decisions of the Honourable Courts, is therefore rejected.
Thus, it is held that the product JAC OLIVOL BODY OIL intended to be manufactured & sold by the applicant would be covered under Heading 3004 of THE FIRST SCHEDULE TO THE CUSTOMS TARIFF ACT and would be taxed accordingly under the GST Act.
As per Mr. Devi Prasad Karanam, Member - Whether the instant product is to be classified as a cosmetic or a medicine mainly rests on the twin tests - HELD THAT:- Appellant has stated that the instant product can be used for treating minor burns and prevents blisters. Now, in light of 'common parlance', if we ask - what will be the requirement of someone in case of treating a minor burn - an anti-burn ointment or the instant product, the answer would tend to the former option.
Now, the issue of therapeutic i.e. relating to the healing of disease or prophylactic i.e. intended to prevent disease of the product comes in question. Also, a valid question comes regarding the issue of cure vs. care. As submitted by the appellant, Jac Olivol Body Oil has certain skin care properties. It can be used in winter for curing dry skin and also has its use for curing body ache. Now, dry skin can occur normally due to loss of skin moisture in winter season or misuse of external agents like soap. At the same time it can occur due to skin diseases like atopic dermatitis (eczema) or psoriasis. Now, as we all know any body-oil like mustard oil, coconut oil or olive oil has a natural property to retain skin moisture resulting in minimization of dry skin. But that does not necessary imply that mustard oil, coconut oil or olive oil can cure skin diseases like eczema or psoriasis. In the same way, as claimed by the appellant, the product Jac Olivol Body Oil can be used to relieve body ache, joint & knee pains. It is a well-accepted fact that a body massage using any body-oil like mustard oil, coconut oil or olive oil can give relief to body spasm and ache. But at the same time, pain and ache arising out of arthritis, tendinitis, gout, spondylitis etc demand specified medical treatment with medicines. Thus, there is a wide gap between the word 'cure' and 'care' so far as the instant product is concerned.
Thus, it can be opined that the product Jac Olivol Body Oil intended to be manufactured & sold by the applicant shall not be covered under Heading 3004 of the First Schedule to the Customs Tariff Act as appealed for. Instead, it would get covered under Heading 3304 of the First Schedule to the Customs Tariff Act and would be taxed accordingly under the GST Act.
The WBAAR Ruling is confirmed and the Appeal stands rejected.
As the members of the West Bengal Appellate Authority for Advance Ruling differ on the classification of the instant product i.e. 'JAC OILVOL BODY OIL', it is deemed that no Advance Ruling can be issued in respect of the questions under appeal as per the provisions of Section 101 sub-section (3) of the GST Act. Thus the Advance Ruling No. 19/WBAAR/2023-24 dated 10.08.2023 is deemed to be not in operation.
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2024 (3) TMI 624 - APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL
Liability to charge GST - Public Distribution System (PDS) - Fair Price Shop - Supply of goods i.e. S. K. Oil to ration card holders - license issued by the Government of West Bengal, authorizing as a “Dealer” as defined under Kerosene Control Order, 1968 - composite supply - HELD THAT:- The appellant purchases S.K. Oil from agents of the Oil Companies who have an agreement with the concerned Oil Marketing Company. The agents have been granted a licence authorizing him/her to carry on trade in Kerosene as Agent. Also, the appellant is obligated as a Dealer to comply with the provision of the West Bengal Kerosene Control Order, 1968, Notification No. 2567/FS/FS/Sectt/Sup/4M-16/2014 dated 03/11/2014 issued by the Department of Food and Supply, Government of West Bengal. Memorandum No. DCG-16016(99)/l/2022-SEC(DCG)-DCG-Part(l)/711 dated 13.05.2022 fixes the price of S. K. Oil at which the agent will sell S. K. Oil to the dealers and the retail price of S. K. Oil at which the Dealers will sell S. K. Oil to the consumers, i.e. the Ration Card holders.
(i) Whether the applicant being a Fair Price Shop as defined under the Notification No. 2565/FS/FS/Sectt/Sup/4M-16/2014 dated 3rd November 2014 issued by the Government of West Bengal, is liable to charge GST from the State Government against the supply made by them? - The appellant in the present case, is a Fair Price Shop and is providing service to the State Government by way of distributing of S. K. Oil as agent, it decided that the afore-mentioned notification is applicable for the appellant and the appellant is entitled for the benefit extended by the said notification. Since, in terms of the said Notification, the Tax liability of the appellant while providing service to the State Government is ‘NIL’ the question of charging GST from the State Government becomes inapplicable.
(ii) Whether the other charges like Dealer’s commission, Dealers Transport Charges, Stationery Charges, H&E Loss etc. would be chargeable to GST or treated as exempt? - Appellant’s sale price included components such as dealer’s commission, dealer’s transport charges, stationery charges, Compensation for Handling and Evaporation loss, among others, in order to guarantee a reasonable return on the capital invested and are actually Commission received by the appellant from the State Government. The government is able to regulate the price of S. K. Oil disseminated via PDS by granting these terms in this manner. In terms of Chapter 4 of the GST Rules, The value of supply of goods between the principal and his agent
(iii) Whether the supply of “S.K. Oil” along with charges would be treated as a composite supply wherein the principal supply would be the supply of “S.K. Oil”? - Supply of “S.K. Oil” along with charges shall not be treated as a composite supply. The supply made by the appellant in the instant case, is supply of Service to the State Government.
The appellant makes a single supply of service as an agent to the State Government by way of distributing S. K. Oil to the ration card holders. As a result, we conclude that no additional discussion is necessary, and this case does not qualify as “Composite Supply” under the GST Act of 2017.
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2024 (3) TMI 580 - MADRAS HIGH COURT
Demand of GST - Discrepancy between the GSTR-3B returns and the auto populated GSTR-2A returns - No opportunity to contest the tax demand - Breach of principles of natural justice - Not adhered the circulars - Petitioner unable to respond Show cause notice issued - Not aware of the same since the petitioner was entirely dependent on his accountant -business of supply of base metals - HELD THAT:- From the impugned assessment order, it is evident that the entire tax demand pertains to the disparity between the ITC claimed in the GSTR-3B return and that reflected in the auto populated GSTR-2A returns. The impugned assessment order does not indicate that the transaction was not genuine. Learned counsel for the petitioner also contended that applicable circulars were not adhered to in this regard. Thus, albeit by putting the petitioner on terms, I am of the view that the petitioner should be provided an opportunity to contest the tax demand.
Therefore, the impugned assessment order is quashed subject to the condition that the petitioner remits 10% of the disputed tax demand as agreed to within a maximum period of two weeks from the date of receipt of a copy of this order. The petitioner is also permitted to file a reply to the show cause notice within the aforesaid period.
Writ Petition is disposed of on the above terms.
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2024 (3) TMI 579 - MADRAS HIGH COURT
Validity of the assessment orders passed - Tax (GST) demand - No opportunity of personal hearing on request - civil contractor - registered person under applicable GST - HELD THAT:- The documents on record include the petitioner's reply in July 2023. By such reply, the petitioner requested for time to respond to the show cause notice and also expressly requested for a personal hearing. Although the respondent cannot be faulted because the petitioner failed to reply on merits to the show cause notices, the assessment orders were admittedly issued without hearing the petitioner and without considering the objections or explanation of the petitioner. The entire tax demand across the relevant assessment years was recovered in this manner. Thus, at this juncture, revenue interest stands fully secured.
Thus, to interfere with the impugned assessment orders so as to provide an opportunity to the petitioner to contest the tax claims. Therefore, the impugned assessment orders are quashed and these matters are remanded for re-consideration.
Writ Petitions are disposed of.
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2024 (3) TMI 578 - MADRAS HIGH COURT
Cash logistics business - For assessment year 2017-2018 - Notice in Form ASMT-10 issued for discrepancies found in returns - proceedings initiated pursuant to notice in Form ASMT-10, dropped by issuing an order in Form ASMT-12 - demand towards IGST, SGST and CGST - whether the same demand was resurrected - HELD THAT:- On examining the impugned assessment order, I find that the confirmation of demand relates to the same assessment period and the same amounts towards SGST, CGST and IGST. The only difference is that interest and penalty has been imposed thereon to arrive at the aggregate sum indicated therein. Upon issuance of an order in Form ASMT-12 recording that no further action is required, the continuation of proceedings culminating in the impugned assessment order is undoubtedly unsustainable.
Thus, the impugned assessment order is quashed. W.P.No.2981 is allowed and connected miscellaneous petitions are closed.
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2024 (3) TMI 577 - MADRAS HIGH COURT
Power to condone delay u/s 107 of the GST Act - show cause notice issued threatening cancellation of GSTIN registration for non filing of returns - returns filled - Withdrawal from suspension of registration - fresh order of cancellation issued - failed to file GSTR-3B returns for a continuous period of six months - HELD THAT:- The petitioner has placed on record the order dated 02.03.2023, which indicates that the petitioner filed pending tax returns. The said order also indicates that the suspension of registration was revoked with effect from 02.03.2023. The subsequent order dated 06.04.2023 was issued on the basis that the petitioner failed to file GSTR-3B returns for a continuous period of six months. The said order also discloses that there are no tax dues as on the date of issuance thereof. Thus, it appears prima facie that the petitioner has a good case on merits.
The impugned appellate order sets out the relevant dates. If the appeal had been filed on or before 05.08.2023, the appellate authority had power to condone delay u/s 107 of the GST Act. The appeal was filed on 01.09.2023 and the delay is less than 30 days. Hence, it is an appropriate case to direct the appellate authority to receive and dispose of the appeal on merits.
Thus, the order impugned herein is quashed and the matter is remanded to the appellate authority.
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2024 (3) TMI 551 - DELHI HIGH COURT
Cancellation Of GST registration retrospectively - Defective Show Cause Notice - SCN does not put the petitioner to notice that the registration is liable to be cancelled retrospectively - trading of ferrous and non-ferrous metals - HELD THAT:- We notice that the Show Cause Notice and the impugned order are bereft of any details accordingly the same cannot be sustained. Neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation.
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. Merely, because a taxpayer has not filed the returns for some period does not mean that the taxpayer’s registration is required to be cancelled with retrospective date also covering the period when the returns were filed and the taxpayer was compliant.
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, we do not consider it 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.
Thus, Order dated 29.02.2024 cannot be sustained and is accordingly set aside. The GST registration of the petitioner is restored - The petition is accordingly disposed of in the above terms.
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2024 (3) TMI 550 - DELHI HIGH COURT
Cancellation Of GST registration retrospectively - Show Cause Notice issued without giving reasons of cancellation - HELD THAT:- We notice that the Show Cause Notice 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. Merely, because a taxpayer has not filed the returns for some period does not mean that the taxpayer’s registration is required to be cancelled with retrospective date also covering the period when the returns were filed and the taxpayer was compliant.
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, we do not consider it apposite to examine this aspect but assuming that the respondent’s contention is 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.
It may be further noted that both the Petitioner and the department want cancellation of the GST registration of the Petitioner, though for different reasons. In view of the fact that Petitioner does not seek to carry on business or continue the registration, the impugned order dated 15.12.2022 is modified to the limited extent that registration shall now be treated as cancelled with effect from 02.12.2021 i.e., the date when the Show Cause Notice was issued.
Petition is accordingly disposed of in the above terms.
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2024 (3) TMI 549 - KARNATAKA HIGH COURT
Determining the tax and penalty - Vehicle transporting consignment without Original Tax Invoice - manner of issuing the Invoice - HELD THAT:- Rule 48 of the CGST, deals with the manner of issuing the Invoice. Accordingly, to which the Invoice shall be prepared in triplicate in case of supply of goods. The original copy marked as such is meant for recipient or the purchaser and therefore, same will not be carried by transporter. As per Section 48(1)(b) of the CGST, it is only the duplicate copy is meant for transporter and the triplicate copy is for the supplier as per clause-C. Therefore, it is clear that the transporter is not required to carry Original Tax Invoice but law mandates him to carry the duplicate copy.
Thus, the contention taken by the respondents that the petitioner is liable for tax and penalty as the transporter had not carried Original Tax Invoice cannot be accepted. It is stated that the petitioner is levied with double tax as he has already paid the tax as required to be paid and once again he paid the tax with penalty and therefore, same is liable to be refunded.
The writ petition is allowed.
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2024 (3) TMI 548 - MADRAS HIGH COURT
Levy of Penalty u/s 73 - non willful mis-statement - discrepancies found on the returns - Validity of notice uploaded in the common portal and not communicated physically - Works contractor registered with the GST Act, 2017 - HELD THAT:- The petitioner's contention is that he is having all the required documents to substantiate that there is no discrepancy and he is ready to submit the same. The learned counsel has relied on the order of the Division Bench of the Gujrat High Court, wherein, it was held that show-case notice and other related orders in physical form shall be dispatched to the dealers by RPAD, till the technical glitches are cured. Since the petitioner is ready to produce all the necessary documents, the respondent is also inclined to provide one more opportunity to the petitioner.
Thus, this writ petition is allowed. The order impugned in this writ petition is set aside and the issue is remanded back to the respondent for fresh consideration.
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2024 (3) TMI 547 - MADRAS HIGH COURT
Liability on the head of IGST and interest with a penalty - issued show cause notice pointing out defects - Sundry Credit - Dealer of plywood registered under the GST Act - application u/s 161 of GST Act - HELD THAT:- Petitioner claims that he has paid the tax amount and he has also enclosed the Bank Statement. However, the respondent has passed an order treating the entire purchase value of sundry credit as tax liability, instead of deducting the ITC Tax element involved on the sundry creditors. According to him, the total sundry credit as per the IT returns is Rs.3,14,65,707/- and the tax component for this purchase value is 18%. However, the assessing authority, without considering the same, has considered the entire value of purchase as a tax amount as ITC and wrongly reversed the entire purchase credit value to the tune of Rs.3,14,65,707/-.
Additional Government Pleader, who takes notice for the respondent, submits that the petitioner is having a right of filing an application u/s 161 of GST Act to correct the error before the concerned authority within a period of 90 days. If the petitioner is having any grievance as against the amount arrived in the assessment order, he can very well file an application u/s 161 of GST Act, within a period of 90 days.
Thus, this writ petition is disposed of with a liberty to the petitioner to file an application u/s 161 of GST Act along with the required documents.
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2024 (3) TMI 541 - RAJASTHAN HIGH COURT
Seeking grant of bail - creation and operation of 294 fake firms and has evaded a tax - impleadment on the basis of confessional statement recorded under Section 70 of the Goods and Services Tax Act, 2017 - maximum punishment for the offence - offence triable by the Court of Magistrate (First Class) - HELD THAT:- This Court finds no substance in the arguments of the counsel for the petitioner that the petitioner is entitled to get bail merely because the alleged offence under Section 132 of the CGST Act, 2017 is punishable with an imprisonment of five years and the same is triable by the Court of Magistrate First Class. There cannot be any straight jacket formula to decide the bail applications in favour to the accused merely because the alleged offence is triable by the Court of Judicial Magistrate First Class and the same is punishable with an imprisonment of five years only. Every bail application is required to be decided on its own facts and circumstances and the merits of the case.
Every case has different facts and allegations and while deciding the bail applications, the Court has to keep the nature of evidence and accusation in mind and then decide the bail applications accordingly.
Hon’ble Apex Court in the case of Nimmagadda Prasad vs. Central Bureau of Investigation [2013 (5) TMI 920 - SUPREME COURT] has held While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.
Considering the facts and circumstances of the case, the nature of allegations levelled against the petitioner and evidence collected by DGGI, seriousness of the offence and further considering the fact that the bail application of the similarly placed accused Anil Kumar has been rejected by the Co-ordinate Bench of this Court, this Court is not inclined to release the petitioner on bail.
Bail application dismissed.
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2024 (3) TMI 483 - TELANGANA HIGH COURT
Issuance of provisional attachment order - benefit of Input Tax Credit availed from invoices issued from non-existing firms - no further proceedings drawn by the respondents either by issuance of show cause notice or by any proceedings drawn under Section 73 or for that matter under Section 74 of the CGST Act - HELD THAT:- Except for the words “in order to protect the interest of revenue” there does not appear to be any reflection of the grounds/reasons/circumstances that compelled the Principal Commissioner to pass the order of provisional attachment. On looking at section 83, what is envisaged is upon initiation of any proceedings under Chapter XII, Chapter XIV or Chapter XV, the Commissioner has to make up an opinion that opinion is to be formed on the basis of the reasons which formed in the course of proceedings from the circumstances that prevailed in between etc., etc. If the opinions were not to be revealed and reflected in the order, the framers of law would have simply held that the Principal Commissioner had the power to issue orders of provisional attachment, protecting the interest of the government revenue.
It has been emphatically held by Gujarat High Court in the case of M/S ANJANI IMPEX VERSUS STATE OF GUJARAT [2020 (10) TMI 760 - GUJARAT HIGH COURT] and Andhra Pradesh High Court also in the case of M/S ARHAAN FERROUS AND NON FERROUS SOLUTIONS PVT LTD VERSUS THE SENIOR INTELLIGENCE OFFICER [2022 (5) TMI 560 - ANDHRA PRADESH HIGH COURT] that once when Rule 159(5) provides for filing an objection, the person who intends to file an objection must know the reasons and grounds under which the order was passed, so that he can effectively file his objection and made the objections and grounds on the basis of which, the order of provisional attachment was passed. There are no doubt for the aforesaid reasons that the impugned order is un-sustainable and the same deserves to be and is accordingly set aside. Nonetheless, the right of the respondents stands reserved if they so want to pass a fresh order under Section 83 after framing of an opinion which may not be spell out in the order enabling the petitioner to avail the remedy available to him under Rule 159(5) of the CGST Rules.
Petition allowed.
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2024 (3) TMI 440 - ALLAHABAD HIGH COURT
Levy of GST - royalty payment - petitioner has vehemently urged that the royalty payment is tax and not consideration in the context of the privilege parted by the State allowing the petitioner and others to mine sand - HELD THAT:- Reliance has been placed on a Constitution Bench decision of the Supreme Court in India Cement Ltd. and Others vs. State of Tamil Nadu and Others [1989 (10) TMI 53 - SUPREME COURT], wherein, nature of royalty payment was considered and it was opined to be in the nature of tax.
Also, it has been shown that a similar controversy is engaging the attention of the Supreme Court in M/s Lakhwinder Singh vs. Union of India & Ors. [2021 (11) TMI 336 - SC ORDER]. On 04.10.2021, the Supreme Court has held Until further orders, payment of GST for grant of mining lease/royalty by the petitioner shall remain stayed.
Until further orders, payment of GST for grant of mining lease/royalty by the petitioner shall remain stayed - List along with Writ Tax No.18 of 2024.
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2024 (3) TMI 439 - ALLAHABAD HIGH COURT
Seeking grant of anticipatory bail - ITC availed on forged and fictitious papers by registering bogus firms and without any business activity - GST registration of two fake firms obtained using the details of the informant - HELD THAT:- The argument although of learned Additional Advocate General is of not entertaining the anticipatory bail of the applicant on the count that non-bailable warrant has been issued against him on 10.08.2023 for which paragraphs 5 & 6 of the counter affidavit have been placed but the facts which transpires in the present matter are that the first information report was lodged on 04.05.2023 against unknown persons, the name of the applicant surfaced in the matter on 20.07.2023 in CD No. 41, the non-bailable warrant was issued on 10.08.2023 and the anticipatory bail of the applicant was rejected by the Sessions Judge concerned on 06.10.2023 and as such the non-bailable warrant was issued just after 20 days of his name surfacing in the matter and as such ignoring the question of issuance of non-bailable warrant against the applicant during investigation, as of now, the Court has considered the matter on its own merit.
In Pokar Ram v. State of Rajasthan and others [1985 (4) TMI 341 - SUPREME COURT] the Apex Court had observed that relevant considerations governing the court's decision in granting anticipatory bail under Section 438 Cr.P.C. are materially different from those when an application for bail by a person who is arrested in the course of investigation. It further held that courts must be cautious and circumspect in exercising powers of anticipatory bail as it intrudes the sphere of investigation.
In the case of Central Bureau of Investigation Vs. Santosh Karnani and another [2023 (4) TMI 1302 - SUPREME COURT] the law of anticipatory bail was reiterated. It was further held that corruption poses a serious threat to our society and must be dealt with iron hands. It not only leads to abysmal loss to the public exchequer but also tramples good governance. The common man stands deprived of the benefits percolating under social welfare schemes and is the worst hit. It is held that there is a need to be extra conscious.
Looking to the nature of the case, the gravity of offence, the fact that the present matter relates to an economic offence, the law laid down by the Apex Court in such matters, the magnitude of offence, the modus as adopted to swindle money from the Government exchequer and the fact that custodial interrogation may be required for further investigation in the matter which is a well organised crime to go to its root and thus this Court does not find it a fit case for grant of anticipatory bail.
The anticipatory bail application is rejected.
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2024 (3) TMI 438 - TELANGANA HIGH COURT
Subsequent initiation of the proceedings under Section 74(1) of the C.G.S.T Act - petitioner discharged his entire tax liability along with the accrued interest immediately upon the finding of the audit team having been made available to the petitioner - Irregular availment of Input Tax Credit - suppression of facts or not - Availability of a statutory alternative remedy of appeal - HELD THAT:- The fact which needs to be considered is that admittedly there was some wrongly availment of I.T.C. by the petitioner in respect of certain exempted tax. This fact was highlighted in the provisional audit report which has been made available to the petitioner by the audit team. The said provisional report was served upon the petitioner on 14.10.2021. The petitioner accepting the said finding immediately discharged the tax liability along with the accrued interest on 28.10.2021, i.e., within a span of around two weeks time, which was much thereafter that the petitioner’s audit report was published on 10.11.2021 and where in the audit report itself it has been highlighted that the petitioner has since cleared off all the tax liability and has also paid the relevant interest also up to date. Admittedly, the show cause notice was thereafter has been issued much thereafter on 20.04.2022.
Admittedly in the instant case, the show cause notice was issued on 20.04.2022, however, during the course of the audit itself certain discrepancies were pointed out by the audit team. Even much before of the final audit report being published, the petitioner is said to have paid the entire tax liability along with the updated interest on 28.10.2022. In the said circumstances, the case of the petitioner is one which that would fall strictly under Sub-Sections (5) and (6) of Section 73 where it has been emphatically laid down by the law makers that any person chargeable with tax, if he pays the amount of tax along with the interest payable there on, proper officer upon receipt of such information shall not initiate any further proceedings under Sub-Section (1) and all the proceedings shall have to deemed to be concluded.
Applicability of Section 74 would come into play only if the conditions stipulated in Section 73 has not been met with by the taxpayer i.e. to say in the event if the conditions stipulated in Sub-Section (5) of Section 73 is not honored by the taxpayer in spite of the tax liability being brought to his knowledge - Further, keeping in view the provisions of Sub-Sections (5) and (6), it will go to establish that once having discharged their tax liability also by paying interest on the said tax payable, then no further proceedings could be drawn for the same tax any further.
The attempt of the learned Senior Standing Counsel trying to bring the conduct of the petitioner within the purview of fraud, misstatement and suppression of fact would not be sustainable and the said contention stands negated by the Bench simply for the reason that Sub-Section (1) of Section 73 permits a taxpayer to even clear wrongly availed I.T.C. and also wrongly utilized I.T.C. and it is this what is alleged against the petitioner of having wrongfully and irregularly availed I.T.C.
The action on the part of the respondents in initiating the show cause proceedings under Section 74 and passing of the impugned order dated 15.11.2023 both would be in excess of their jurisdiction and the same therefore deserves to be and are accordingly set-aside / quashed.
Availability of a statutory alternative remedy of appeal - HELD THAT:- Since the challenge to the impugned order in original and the show cause notice at the first instance itself is not sustainable in the eye of law in terms of Sub-Sections (5) and (6) of Section 73. The petitioner cannot be forced to undergo the entire process of litigation under the statute once when the issuance of show cause notice itself was per se bad and since it is a case of excess of jurisdiction exercised by the respondents, the petitioner has a right to avail a Writ remedy rather than undergoing the process of appeal, revision etc. under the statute.
Petition allowed.
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2024 (3) TMI 437 - BOMBAY HIGH COURT
Condonation of delay in filing petition - whether the Petitioner has approached this Court only to evade the pre-deposit? - HELD THAT:- The Petitioner was served with a notice dated 16.08.2023 specifically granting 7 days time to file a reply and show cause on the point of delay. The Petitioner was also given an opportunity of hearing in person on 21.08.2023 at 11.00 a.m. and submit all documents alongwith evidences as may be desired. The Petitioner was put to notice that if it fails to avail of these opportunities of hearing, the Department would proceed to pass an order. As the Petitioner did not participate in the hearing and did not appear in person and did not submit reply, the impugned order dated 29.08.2023 was passed.
Since the Petitioner has preferred this Petition within limitation, though it has not approached the appellate authority which the Commissioner (GST-Appeal), it is found that it is an incorrect submissions of the Petitioner that it was not granted any opportunity of hearing. In this circumstance, the issue to the extent of violation of the principles of natural justice, is not in the picture.
This Petition is disposed off as withdrawn - Since the Petitioner has approached this Court within limitation, the Petitioner relegated to the Commissioner (GST Appeals) on the condition that the Petitioner would file the appeal within seven days from today.
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2024 (3) TMI 395 - DELHI HIGH COURT
Cancellation of GST registration of the petitioner with retrospective effect - SCN does not give reasons of cancellation - 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 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 is 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 13.02.2021 is modified to the limited extent that registration shall now be treated as cancelled with effect from 03.02.2021 i.e., the date when the Show Cause Notice was issued. Petitioner shall make the necessary compliances as required by Section 29 of the Central Goods and Services Tax Act, 2017.
Petition disposed off.
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