|
Advanced Search Options
GST - Case Laws
Showing 61 to 80 of 11448 Records
-
2024 (5) TMI 183 - MADRAS HIGH COURT
Violation of principles of natural justice - Officer merely rejected the submissions of the petitioner without any reasoning - tax confirmed on the petitioner in terms of the proposals contained in DRC-01 issued to the petitioner, which preceded a notice in DRC-01A for the respective Assessment Years - HELD THAT:- The impugned orders set aside by giving the petitioner a fresh opportunity to substantiate the case afresh by filing a detailed reply to the respective notices issued to him in DRC-01.
The impugned order, which stands quashed shall be treated as Corrigendum to the notice issued to the petitioner for the respective Assessment Years under DRC-01. The petitioner shall file reply within a period of 30 days from the date of receipt of a copy of this order. The petitioner shall also pay 10% of the disputed tax for the respective Assessment Years. For the Assessment Year 2017-2018, while arriving at 10% of the disputed tax, the amount paid by the petitioner as tax for the Assessment Year 2017-2018, shall be excluded and on the balance amount, the petitioner shall pay 10% of the disputed tax within a period of 30 days.
Petition allowed.
-
2024 (5) TMI 182 - MADRAS HIGH COURT
Failure to reply to SCN - alleged non reversal of Input Tax Credit (ITC) in respect of credit notes issued by the supplier - case of petitioner is that reply in Form ASMT 11 should have been taken into account - HELD THAT:- On perusal of the impugned order, it is noticeable that the notice in Form ASMT 10 is recorded therein. However, the reply of the petitioner thereto was not taken into account. Consequently, as is evident from paragraph 12 of the impugned order, the tax proposal was confirmed on the ground that the petitioner did not respond to the notices or attend personal hearing. Since the petitioner's reply to the notice in Form ASMT 10 was not taken into consideration in the impugned order, such order is unsustainable.
The impugned order dated 20.11.2023 is set aside and the matter is remanded for reconsideration. The petitioner is permitted to submit a reply to the show cause notice within 15 days from the date of receipt of a copy of this order.
Petition disposed off by way of remand.
-
2024 (5) TMI 181 - GUJARAT HIGH COURT
Violation of principles of natural justice (audi alterem partem) - non-grant of opportunity of hearing to the petitioner as per provisions of Section 75(4) of the Central Goods and Service Tax Act, 2017 - rejection of refund without assigning any reason - HELD THAT:- It appears that impugned order of rejection of refund is passed without assigning any reason also. In such circumstances, the impugned order dated 01.12.2023 passed in Form-GST-RFD-06 under Rule 92(1), 92(3), 92(4), 92(5), 92(7), 92(5), 92(6) read with Sections 73 and 74 of the Gujarat Goods and Service Tax Act, 2017 (‘GST Act’, for short) is hereby quashed and set aside and the matter is remanded back to the Respondent No.2 for passing fresh order after de novo adjudication after giving opportunity of hearing and after assigning reasons for passing the order in accordance with law.
The present petition is disposed off.
-
2024 (5) TMI 180 - ALLAHABAD HIGH COURT
Levy of maximum penalty - penalty imposed on the basis of technical error - non downloading of E-way Bill-01 was not done with intention to evade tax - HELD THAT:- Upon perusal of the record, it appears that the invoice contained the address, the goods matched the description in the invoice and all other materials were intact. The imposition of tax is only on the basis of a technical error. Furthermore, neither in the show cause notice nor in the order under Section 129(3) there was any allegation that non downloading of E-way Bill-01 was done with intention to evade tax. In spite of the same, the respondent authorities have chosen to impose maximum penalty whereas the law provides for lesser penalty under Section 122 of the Act.
The issue in the present petition is covered by Division Bench judgment of this Court in Harley Foods Products Ltd. vs. State of U.P. [2018 (11) TMI 704 - ALLAHABAD HIGH COURT], where it was held that 'Goods were accompanied with all the requisite documents including Gujarat e-way bill dated 21.03.2018, therefore, there was no ground to hold that the goods were coming in contravention of the provision of GST Act/Rule and the intention of the petitioner was to evade the payment of Tax' and thus no case made out with regard to evasion of tax.
The impugned order is set aside - petition allowed.
-
2024 (5) TMI 179 - MADRAS HIGH COURT
Reopening of completed assessment - Difference in output tax liability between GSTR-1 and GSTR-3B returns - the tax proposal in respect of the said discrepancy was confirmed by an earlier order and that the petitioner intends to challenge such order by separate proceedings - under declaration of ineligible ITC and invalid ITC under Section 16(4) - HELD THAT:- On examining earlier order and the impugned show cause notice, it is clear that they pertain to assessment period 2018-19. The first issue in the impugned show cause notice is the same issue determined under order dated 23.12.2023. Undoubtedly, it is not open to the respondent to reopen the same issue after issuing the earlier order.
Petition is disposed of by directing the petitioner to respond to the show cause notice only insofar as it pertains to the issues of under declaration of ineligible ITC and invalid ITC under Section 16(4) - As regards the issue relating to reconciliation of GSTR-1 and GSTR-3B, the impugned show cause notice is set aside to that extent.
Petition disposed off.
-
2024 (5) TMI 178 - MADRAS HIGH COURT
Violation of principles of natural justice - non-service of SCN - petitioner unable to reply to the show cause notice or participate in proceedings because such notice and order were only uploaded on the “view additional notices and order” tab of the GST portal, and not communicated to the petitioner through any other mode - HELD THAT:- The documents on record disclose that the petitioner replied to the notice in Form GST ASMT 10, but failed to respond to the intimation and show cause notice that followed. As is evident from the impugned order, tax liability was confirmed because the petitioner did not reply to the show cause notice. It is also noticeable that the petitioner's reply to the notice in Form GST ASMT 10 was not taken into consideration. In these circumstances, albeit by putting the petitioner on terms, it is just and appropriate that the petitioner be provided an opportunity.
The impugned order dated 08.12.2023 is set aside on condition that the petitioner remits 10% of the disputed tax demand within two weeks from the date of receipt of a copy of this order - petition allowed.
-
2024 (5) TMI 177 - DELHI HIGH COURT
Benefit of exemption from GST - educational institution or not - Rejection of refund of the Goods and Services Tax (GST) in respect of the part of the Financial Year 2020-21 – April, 2020 to August, 2020 - tax paid under a mistaken understanding of the law - contradiction between Circular No. 151/07/2021-GST dated 17.06.2021 and N/N. 12/2017 – Central Tax (Rate) dated 28.06.2017 - scope of examination of services in terms of the 2017 Notification.
Scope of examination of services in terms of the 2017 Notification - whether the provision of any services is exempted (chargeable at Nil rate) from payment of GST? - National Eligibility-cum-Entrance Test (NEET) for admission to any medical institution in India - Degrees of Diploma of National Board (DNB) and Fellow of National Board (FNB) after conducting the examination - Conducts Screening Tests - Accreditation of Medical Institutions.
NEET EXAMINATION - HELD THAT:- The question whether the petitioner is an educational institution for the purposes of Clause (aa) of Serial No. 66 of 2017 Notification was expressly clarified by introduction of Clause (iv) in Paragraph 3 of the 2017 Notification. The said explanation clarified that the Central and the State Educational Boards would be treated as educational institutions for the limited purposes of providing services by way of conduct of examination to the students. The opening words of Paragraph 3(iv) of the 2017 Notification are “for removal of doubts”. The said Explanation is clearly clarificatory.
The question whether educational boards are to be exempted from services provided in conduct of examination was considered by the GST Council at its 28th Meeting held on 21.07.2018. The Fitment Committee had noted that the definition of educational institutions as contained in Paragraph 2(y) of the 2017 Notification did not cover State Educational Boards, Central Government Boards and autonomous organizations responsible for administration of education in India - Most of the State Boards and Central Boards were either boards set up by the Act of Parliament or State Legislatures or registered under the Societies Registration Act, 1860. Therefore, all examination boards except a few were Government entities. Any grant received by educational boards for providing services to government or any other person was also exempt.
Undisputedly, the question whether a provision is clarificatory or declaratory would not be dispositive of the question whether the same is applicable retrospectively. However, the fact that the language of the statute clearly reflects that it is for removal of doubts and to clarify doubts is a relevant indicator to determine whether the provision in fact intended to clarify and not intended to bring a prospective change. It is also relevant to determine whether the pre-amended law would admit such a clarification.
The service of holding an examination for aspirants to medical colleges, to provide a standard basis for entrance in medical institutions, the same would not fall within the ambit of Serial No. 66(a) of the 2017 Notification, as the same covers services provided by an educational institution to its students, faculty and staff. The candidates appearing for NEET examination are not students of the petitioner - More importantly, the Central Government has introduced a separate entry for exempting the services provided by an entrance examination – at Serial No. 66(a) of the 2017 Notification. Since, NEET examinations are in the nature of an entrance examination, the petitioner would be entitled to the benefit of an exemption by virtue of Serial No. 66(aa) of the 2017 Notification, which came into effect on 25.01.2018.
DEGREES OF DIPLOMATE OF NATIONAL BOARD (DNB) AND FELLOW OF NATIONAL BOARD (FNB) - HELD THAT:- Undeniably, the State Boards and educational boards are educational institutions. In the case of Secondary Board of Education, Orissa v. Income Tax Officer, Ward ‘E’, Cuttack [1972 (1) TMI 16 - ORISSA HIGH COURT], the Orissa High Court had observed that the Board of Secondary Education is not a university but it is indisputably an educational institution. ‘Education’ is included within the definition of charitable purpose under Section 2(15) of the Income Tax Act, 1961 and the said expression has been read in an expansive manner.
The course of DNB and FNB is a structured course. Although the students conduct their training with accredited medical institutions, the course is structured and managed by the petitioner. There is also no doubt that the students undergoing the said course are enrolled with the petitioner. Thus, although there is no classroom teaching by the petitioner; it is, undoubtedly, involved in imparting education to the students enrolled with it as a part of a curriculum. The course fee collected by the petitioner is forwarded to various accredited hospitals - for the purposes of DNB and FNB courses and conduct of Fellow Entrance Examinations, DNB-PDCET exam, FAT, DNB and FNB final examination (theory and practical) and the Fellowship Exit Exam, the petitioner clearly falls within the scope of an educational institution imparting education to students enrolled with, it as a part of a curriculum.
There can be no dispute that no GST is chargeable in respect of the services rendered by the petitioner in connection with DNB and FNB courses. The petitioner is indisputably involved in conduct of DNB and FNB courses and therefore, squarely falls within the definition of an educational institution in respect of the services rendered to its students in connection with and as a part the said courses.
SCREENING TEST AND ACCREDITATION OF MEDICAL INSTITUTIONS - HELD THAT:- The services provided by the petitioner for conducting screening test and the fees charged for accrediting medical institutions does not fall within the scope of Serial No. 66(a) and Serial No. 66(aa) of the 2017 Notification - The screening tests are not conducted as a part of the curriculum. The said tests are also not in the nature of entrance examinations but are for the purposes of recognising primary medical qualifications secured by candidates from institutions abroad. The accreditation fee is charged from medical institutions for accrediting them. These services are also not covered under the relevant entries of the 2017 Notification. The candidates appearing for the screening tests are not students of the petitioner. Thus, the petitioner’s contention that it is exempt from payment of GST in respect of such services, is unmerited.
The orders rejecting the petitioner’s application for refund, which are impugned in this petition, are set aside. The matter is remanded to the appropriate authority for considering afresh - Petition disposed off by way of remand.
-
2024 (5) TMI 176 - MADRAS HIGH COURT
Validity of assessment order - failure to provide a reasonable opportunity to the petitioner - violation of principles of natural justice (audi alterem partem) - HELD THAT:- On perusal of the orders impugned herein, it is evident that the tax demand pertains entirely to the discrepancy between the petitioner's GSTR 3B returns and the auto populated GSTR 2A. Learned counsel for the petitioner asserts that the petitioner is in a position to produce necessary documents in compliance with Circular No.183. In these circumstances, albeit by putting the petitioner on terms, it is just and necessary to provide another opportunity to the petitioner.
The orders impugned herein are set aside subject to the condition that the petitioner remits 10% of the disputed tax demand in respect of each assessment period as agreed to within a period of two weeks from the date of receipt of a copy of this order - Petition disposed off.
-
2024 (5) TMI 175 - MADRAS HIGH COURT
Breach of principles of natural justice - Petition was unaware of proceedings culminating in the impugned assessment order on account of the fact that GST compliances had been entrusted to a consultant, who had not informed the petitioner of such proceeding - discrepancy between the petitioner's GSTR-3B and auto-populated GSTR-2A - HELD THAT:- On perusal of the impugned order, it is evident that such order relates to the discrepancy between the GSTR 3B and GSTR – 2A returns. The petitioner has placed on record several documents to establish that the petitioner was entitled to avail of ITC. Since the petitioner was not heard before the impugned order was issued, principles of natural justice warrant interference so as to provide an opportunity to the petitioner. It should be noticed that the petitioner remitted 10% of the disputed tax demand, before filing this writ petition.
Therefore, the impugned order dated 03.03.2023 is set aside and the matter is remanded for reconsideration. The petitioner is also permitted to file a reply to the show cause notice within 15 days from the date of receipt of a copy of this order - Petition disposed off.
-
2024 (5) TMI 174 - ANDHRA PRADESH HIGH COURT
Levy of GST on the value of the by-products i.e., broken rice, bran and husk - HELD THAT:- When the matter is listed, both the learned counsel for petitioner as well as learned Government Pleader for Commercial Taxes would admit that the subject matter of this Writ Petition iin SHIRIDI SAINATH INDUSTRIES VERSUS DEPUTY COMMISSIONER OF SERVICES TAX (INTERNATIONAL TAXATION) [2021 (1) TMI 175 - ANDHRA PRADESH HIGH COURT], where it was held that 'the impugned Assessment Order passed by the 1st respondent in so far as it relates to the levy of GST on the value of by-products i.e., broken rice, bran and husk treating them as part of the consideration paid to the petitioner for milling of the paddy, is set aside'.
This Writ Petition is allowed and the impugned Assessment Order dated 24.09.2019 passed by the 1st respondent in so far its relates to levy of GST on the value of the by-products i.e., broken rice, bran and husk treating them as part of the consideration paid to the petitioner for milling of the paddy is set aside.
-
2024 (5) TMI 173 - MADRAS HIGH COURT
Validity of assessment order - non-speaking assessment order - non-application of mind - violation of principles of natural justice - reversal of ITC - HELD THAT:- On examining the impugned order, it is evident that the tax liability of the petitioner under about '7' heads was determined therein. As regards turnover mismatch, the assessing officer set out the particulars provided by the petitioner, recorded that the petitioner had produced the balance sheet and profit and loss account for the year 2017-2018 and thereafter recorded the following conclusion: “The reply of the dealer is not acceptable”. Thus, the assessing officer has merely recorded a conclusion in the nature of ipse dixit without any reasoning to support such conclusion.
Reversal of ITC - HELD THAT:- The assessing officer has recorded the conclusion that ITC was used partly for effecting taxable supplies and partly for effecting exempt supplies. The latter conclusion appears to be clearly contrary to the submissions made by the assessee. As regards tax liability under the head 'sundry creditors', the petitioner/assessee stated that the payments to creditors are below 180 days and Rule 37 was not contravened. It was further stated that no ITC was involved. The reply of the assessee dated 09.10.2023 clearly discloses that the sundry creditors' list, payment date, bank date and bank statement were enclosed. Without considering these documents, a finding that bank statement was not provided is recorded in the impugned order.
It appears that the impugned order was issued without taking into account the relevant material placed on record by the assessee. Consequently, the said order calls for interference and is hereby quashed.
The matter is remanded for reconsideration by the assessing officer. After providing a reasonable opportunity, including a personal hearing, to the assessee, the assessing officer is directed to issue a fresh assessment order within a maximum period of two months from the date of receipt of a copy of this order - petition disposed off by way of remand.
-
2024 (5) TMI 172 - RAJASTHAN HIGH COURT
Levy of GST on royalty paid to the respondent-Mining Department towards mining lease - challenge to SCN/assessment orders - HELD THAT:- In SUDERSHAN LAL GUPTA CONTRACTOR VERSUS UNION OF INDIA, STATE OF RAJASTHAN, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, DEPUTY COMMISSIONER OF STATE TAX, CIRCLE KARAULI, RAJASTHAN [2022 (10) TMI 43 - RAJASTHAN HIGH COURT] the Division Bench of this Court has held that the action of respondents with regard to imposition of GST on royalty is not liable to be interfered with.
This writ petition is dismissed in terms of the orders passed by this Court in Sudershan Lal Gupta’s case.
-
2024 (5) TMI 171 - ANDHRA PRADESH HIGH COURT
Maintainability of appeal - appeal dismissed at the admission stage on the ground that it was barred by limitation and beyond the condonable statutory period - sufficient cause for delay or not - cancellation of GST registration - HELD THAT:- Though the impugned order in view of Section 107 of APGST Act does not suffer from any illegality, as the appellate authority cannot condone the delay beyond statutory condonable period but considering that there was sufficient cause for not preferring appeal in time, the interest of justice requires condonation of the delay. The appeal is a valuable statutory right.
In exercise of writ jurisdiction to do complete justice and provide opportunity of hearing on merits of the appeal, the delay is condoned by imposing costs of Rs. 20,000/-. The appellate authority shall consider and decide the appeal on merits in accordance with law, expeditiously. The Costs shall be deposited in two (02) weeks from the date of receipt of copy of this order before the appellate authority.
Petition allowed.
-
2024 (5) TMI 119 - MADRAS HIGH COURT
Levy of interest and penalty - transition of amount wrongly claimed as input tax credit under the CENVAT Credit Rules, 2004 - HELD THAT:- Admittedly, the petitioner was not entitled to avail input tax credit on the Basic Customs Duty paid under the Customs Act, 1962, under the provisions of the CENVAT Credit Rules, 2004.
Under Section 140 of the CGST Act, 2017, only input tax credit lying un-utilised under the CENVAT Credit Rules, 2004 and TNVAT Act, 2006 in Tamil Nadu could be transitioned - Sub- Section (2) to Section 140 of the CGST Act, 2017 also makes it clear that the registered person shall not be allowed to take credit unless the said credit was admissible as CENVAT credit under the existing law i.e., CENVAT Credit Rules, 2004 and is also admissible as input tax credit under the CGST Act, 2017 - Therefore, the question of the petitioner transitioning the amount that was wrongly claimed as input tax credit under the CENVAT Credit Rules, 2004 did not arise. The Department however committed a mistake by sanctioning the refund to the petitioner on 17.07.2018 pursuant to refund claim filed by the petitioner.
There has to be restitution of the unjust benefit gained by a dealer/person. These provisions have been framed to ensure that there is proper restitution. Thus, no case is made out to interfere with the impugned order. Therefore, the impugned order is sustainable and this Writ Petition is liable to be dismissed.
Petition dismissed.
-
2024 (5) TMI 118 - ALLAHABAD HIGH COURT
Appeal barred by time limitation - Violation of principles of natural justice - order for cancellation of registration passed without any application of mind - 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 - Petition allowed.
-
2024 (5) TMI 117 - ALLAHABAD HIGH COURT
Principles of natural justice - Non-service of notice - demand u/s 73 (1) of Finance Act, 1994 read with Sections 142, 173 and 174 of the Central Goods and Service Tax Act, 2017 and the penalty of the same amount under Section 78 of the Act - HELD THAT:- Without going into any further details of the dispute, this court is of the opinion that the court's endeavour should be to decide the dispute on merits after giving adequate opportunity of hearing to the parties and opportunity of hearing should not be denied on hyper-technical reasons. As the petitioner is willing to cooperate in the proceedings, it would be in the interest of justice to remand the matter for being decided afresh, after giving an opportunity of hearing to the petitioner.
The impugned order dated 08.01.2024, passed by the Principal Commissioner, CGST & Central Excise Commissionerate, Lucknow imposing tax liability and penalty on the petitioner is quashed.
The writ petition is allowed.
-
2024 (5) TMI 116 - ALLAHABAD HIGH COURT
Seeking enlargement on bail - evasion of GST - supply of clandestine goods without issuance of invoices - during investigation the statements of two employees were recorded in which the allegations against the applicant were found established - HELD THAT:- On perusal of record, the evidence on record and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Applicant is allowed to be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to the fulfilment of conditions imposed - bail application allowed.
-
2024 (5) TMI 115 - ALLAHABAD HIGH COURT
Appeal barred by time limitation - Violation of principles of natural justice - order for cancellation of registration passed without any application of mind - 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 - Petition allowed.
-
2024 (5) TMI 114 - CALCUTTA HIGH COURT
Levy of penalty @200% - e-way bill which was generated by the appellant had expired and at the time when the vehicle was intercepted four days had lapsed - intent to evade to tax or not - HELD THAT:- In the instant case, it is found that the order of adjudicating authority does not deal with the specific submission made by the appellant in the reply dated 13.09.2022 to the show cause notice. In other words, no reasons have been set out to record satisfaction of the authority that it is a fit case for imposition of penalty. Further, the adjudicating authority did not reject the stand taken by the appellant in their reply dated 13.09.2022.
In the absence of any allegation that there is an intention to evade payment of taxes and in the absence of any adverse inference drawn pursuant to the physical verification except that e-way bill had expired, the court if of the view that some lenience can be shown to the appellant. However, the conduct of the appellant in not extending the e-way bill for four days after its expiry cannot be absolutely condoned.
A transporter/owner of the goods is bound to carry certain documents as mentioned in the Act which are to accompany the goods. In the instant case, prior to the movement of the goods e-way bill was generated in which the tax invoice number was duly incorporated proof of payment of tax has also been established and e-way bill was valid till 05.09.2022 and mistake committed by the appellant is not extending the e-way bill after the expiry despite such liberty being granted under the Rules. The appellate authority in fact has accepted the contention of the appellant that the penalty amount has been computed on a higher value than the invoice value without proper evidence and reason.
Cnsidering the totality of the circumstances and the peculiar facts and circumstances of the case, the court is inclined to grant some indulgence to the appellant but will not completely exonerate the appellant - Considering the peculiarity of the facts, the appellant is liable to pay Rs. 1,00,000/- - appeal allowed in part.
-
2024 (5) TMI 113 - MADRAS HIGH COURT
Eligibility for Input Tax Credit - failure to report outward supply - discrepancy between the petitioner's GSTR 1 and GSTR 3B - items not notified for being taxed on reverse charge basis - HELD THAT:- The respondent proceeded on the basis that it was an outward supply of goods. Such conclusion indicates non application of mind.
The petitioner submitted an explanation that the discrepancy was rectified while filing subsequent returns or that the discrepancy occurred on account of lower payments being made. On examining the impugned order on this aspect, it is noticeable that the respondents were not fully satisfied with the documentary evidence placed on record by the petitioner. The failure of the petitioner to provide all relevant documents certainly contributed to the state of affairs. With regard to the findings on these issues, it is appropriate to put the petitioner on terms as a condition for reconsideration.
The impugned order is set aside subject to the condition that the petitioner remits 10% of the disputed tax demand, on the assumption that tax is leviable at 12% thereon. Such remittance shall be made within two weeks from the date of receipt of a copy of this order. Subject to receipt thereof, the 1st respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within a period of three months from the date of receipt of remittance from the petitioner.
The writ petition is disposed off.
........
|
