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Showing 101 to 120 of 1456 Records
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2024 (1) TMI 1356
Proceeding with the appeal after giving opportunity of hearing to the petitioner without insisting for pre-deposit as no tax amount is demanded from the petitioner - HELD THAT:- Without entering into the merits of the matter, the petition is disposed of. The Appellate Authority to hear the pending appeal after giving opportunity of hearing to the petitioner within a period of two weeks from the date of submission of documents and decide the same in accordance with law within four weeks thereafter.
The petition is disposed of as not pressed at this stage.
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2024 (1) TMI 1355
Maintainability of petition - availability of alternative remedy - Petitioner submits that since the amount as assessed had to be deposited by 01.01.2024, the requisite appeal has been filed along with the pre-deposit - Challenge to order passed u/s 73 of the Central Goods & Services Tax Act, 2017 along with the order in Form GST DRC-07 - HELD THAT:- Keeping in view the fact that alternate remedy available to the petitioner has been availed, it is opined that the present writ petition has become infructuous regarding the said aspect. However, the petitioner is left open to raise the other questions which he has sought to raise in the appropriate proceedings, if so required.
The present writ petition stands disposed of.
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2024 (1) TMI 1354
Seeking quashing of the impugned Adjudication Notice - It is the grievance of the petitioner that due to bonafide reasons, unavoidable circumstances and sufficient cause, it was not possible for the petitioner to collect and collate all relevant documents and submit the reply to the respondent - violation of principles of natural justice - HELD THAT:- As rightly contended by the learned counsel for petitioner, though the respondent had issued audit notice on 07.01.2021, the impugned proceedings command only on Adjudication Notice dated 31.01.2023 when the Adjudication Notice was issued to which, the petitioner expressed his inability to submit his reply on the ground that certain documents were not available and requested for extension of time. Under these circumstances, the respondent clearly fell in error in coming to the incorrect conclusion that there was a long lapse of 768 days in the petitioner submitting his reply to the audit notice, which was not the subject matter of the adjudication proceedings under the notice dated 31.01.2023 issued by the respondent.
It is clear that sufficient and reasonable opportunity has not been provided to the petitioner. Under these circumstances, in view of the submission of the petitioner that if one more opportunity is provided, the petitioner would appear before the respondent and submit its reply, documents etc., it is deemed just and proper to set aside the impugned order and remit the matter back to the respondent for reconsideration afresh in accordance with law.
The impugned Adjudication Order dated 19.04.2023 [Annexure-K] is hereby set aside - The matter is remitted back to the respondent for reconsideration afresh in accordance with law - The petition is hereby partly allowed.
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2024 (1) TMI 1353
Challenge to impugned order passed under Section 130 of the Central Goods and Service Tax Act, 2017 in Form GST MOV-11 - HELD THAT:- Respondent prays for time to take instructions from the respondent, whether the respondent would proceed with the appeal or the petitioner should proceed with this petition.
Stand over to 18th January, 2024.
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2024 (1) TMI 1352
Seeking consideration of the representation to release the vehicle - Revenue submits that the petitioner may seek release of the seized vehicle either by making payment in terms of Section 129(1)(b) of the CGST Act or by furnishing security in terms of clause (c) of sub-section (1) of Section 129 - HELD THAT:- The petition is disposed of by leaving it open to the petitioner to seek release in terms of Section 129(1).
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2024 (1) TMI 1351
Violation of principles of natural justice - challenge to SCN - specific contention of the petitioner is that the pre-consultation as mandated by the CBDT circulars was not carried out in the proper manner - HELD THAT:- It is not required to countenance the argument so raised by the learned ASG, especially when a pre-consultation show-cause notice was issued by the authorities.
The show-cause notice set aside, not on merits, but only on no proper opportunity having been given to the petitioner for reply and consultation - the show-cause notice at Annexure-4 will stand set aside. The petitioner is directed to file a detailed reply to the pre consultation notice within a period of three weeks from today - petition allowed.
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2024 (1) TMI 1350
Exemption from GST - services in relation to admission to foreign universities - Applicability of N/N. 12/2017 amended vide notification 2/2018 - whether the courses provided by the applicant's foreign clients are part of a curriculum for obtaining a qualification recognised by any law for the time being in force? - HELD THAT:- As the Australian Universities are approved by Association of Indian Universities the courses offered by them are also acceptable by law for the time being in force in India. In this regard it is observed that the claim of the applicant that Association of Indian Universities have recognised the courses conducted by foreign universities to which the applicant is providing admission related services is factually incorrect since the Association of Indian Universities do not recognise the courses conducted by the foreign universities. They only Issue Equivalence Certificate for the courses of foreign University to individual students. As per the AIU website (https://aiu.ac.in/evaluation.php) “AIU is vested with the power of according academic equivalence to the degrees obtained from the accredited foreign Boards/universities). Issuance of equivalence Certificate does not amount to recognising the course.
Further, the Association of Indian Universities is not a statutory body. It is only a society constituted under Indian Societies Act, 1860. The same is the case with Association of Common Wealth Universities.
The ratio of the judgment in ANKITA THAKUR AND ORS. VERSUS THE H.P. STAFF SELECTION AND ORS. [2023 (11) TMI 1304 - SUPREME COURT] is squarely applicable in the instant case and recognition for a course is based on an act of the Central or State Government. Issuance of equivalence certificate cannot be considered as recognition given to the course. In view of the ruling by the apex court, the precedents cited by the applicant, being that of lower fora are not applicable.
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2024 (1) TMI 1349
Maintainability of petition - availability of statutory remedy of appeal against the impugned order before the Appellate Tribunal - non-constitution of the Tribunal - HELD THAT:- The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act, which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the B.G.S.T Act, enters office.
This Court is, therefore, inclined to dispose of the instant writ petition subject to fulfilment of conditions imposed - Subject to deposit of a sum equal to 20 per cent of the remaining amount of tax in dispute, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section 107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act.
Petition disposed off.
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2024 (1) TMI 1348
Maintainability of petition - availability of statutory remedy of appeal against the impugned order before the Appellate Tribunal - non-constitution of the Tribunal - HELD THAT:- The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act, which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the B.G.S.T Act, enters office.
This Court is, therefore, inclined to dispose of the instant writ petition subject to fulfilment of conditions imposed - Subject to deposit of a sum equal to 20 per cent of the remaining amount of tax in dispute, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section 107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act.
Petition disposed off.
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2024 (1) TMI 1347
Seeking to set off input tax credit of IGST, which was wrongly claimed under the heads of CGST and SGST for the period July, 2017 to March, 2018 against the output tax liability of the petitioner for the said period - HELD THAT:- The present writ petition is disposed of with direction to the 6th respondent to consider Ext.P4 application filed by the petitioner/assessee and pass necessary orders thereon expeditiously, in accordance with law. Needless to say that the petitioner could be afforded an opportunity of hearing before final order is passed on Ext.P4 application. Until final order is passed on Ext.P4 application, no coercive measures shall be taken against the petitioner for realisation of the tax amount assessed in Ext.P1 order.
Petition dismissed.
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2024 (1) TMI 1346
Rejection of delayed appeal - rejection of appeal having not been filed within the period of limitation - HELD THAT:- In the present case, the appeal was filed and was dismissed by the first Appellate Authority. In such circumstances, it is only proper that the appeal be restored to the files of the Authority subject to the conditions under paragraph no. 3 being satisfied.
Hence the petitioner would be entitled to satisfy the Notification by paying up the deficient amounts as would be required to maintain the appeal under the notification.
The impugned order dated 25.05.2023 at Annexure-6 set aside on condition of the assessee satisfying the aforesaid conditions before the time stipulated in Notification; i.e. 31.01.2024, in which event, the appeal would be taken up and considered on merits - petition allowed.
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2024 (1) TMI 1345
Issuance of two SCNs for the same period - petitioner has approached this Court on the ground that for the same tax period, there cannot be 2 [two] such show cause notices - HELD THAT:- Having regard to the projections made, it is observed that till the next date of listing, there shall not be any coercive action in terms of the impugned Show Cause Notice.
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2024 (1) TMI 1344
Supply or not - transfer of business by the Airport Authority of India to M/s. Adani Thiruvananthapuram International Airport Limited - section 7 of the Central Goods and Service Tax Act, 2017 (CGST) viz-a-viz Kerela State Goods and Service Tax Act, 2017 - supply as going concern or not - applicability of Entry No. 2 of the exemption notification No. 12/2017-Central Tax (Rate) dated 28-06-2017 issued u/s Section 11 of CGST Act 2017 - GST on the transfer of Existing assets (RAB), Aeronautical Assets, non-aeronautical assets and Capital work in progress by M/s. Airport Authority of India to the M/s. Adani Thiruvananthapuram International Airport Limited - transfer of asset be treated as services or not - concession fees paid by M/s. Adani Thiruvananthapuram International Airport Limited to M/s. Airports Authority of India be treated as consideration for transfer of business or not - GST on Monthly/Annual concession fees charged by the Applicant on the M/s. Adani Thiruvananthapuram International Airport Limited - GST on the invoice raised by the Applicant for reimbursement of the salary/ staff cost on M/s. Adani Thiruvananthapuram International Airport Limited - GST on the reimbursement claimed of Municipal tax, Property Tax and Water Charges by the Applicant from M/s. Adani Thiruvananthapuram International Airport Limited - reversal in accordance with section 17 (2)/(3) of CGST Act viz-a-viz KSGST Act.
Whether the transfer of business by the Airport Authority of India to the M/s. Adani Thiruvananthapuram International Airport Limited be treated as Supply u/s. 7 of the Central Goods and Service Tax Act, 2017 (“CGST”) viz-a-viz Kerela State Goods and Service Tax Act, 2017 (KGST)? - HELD THAT:- The transaction involved herein is not the transfer of business by the applicant to the concessionaire. However, the concessionaire is supplying the service of developing the airport of the applicant and applicant is supplying the service of manpower, leasing etc., to the concessionaire and both constitutes supply under Section 7 of the GST Act.
Whether the transfer of business by Airports Authority of India to M/s. Adani Thiruvananthapuram International Airport Limited is treated as supply as going concern and covered in clause 4 of schedule II of CGST Act viz-a-viz. KGST? - HELD THAT:- There is no concept of ‘Supply as going concern’ in Schedule 4 of the CGST Act, 2017. The concept therein is that of Transfer as going concern’. The transaction involved herein cannot be treated as a transfer as going concern.
Whether the transfer of business by M/s. Airports Authority of India to M/s. Adani Thiruvananthapuram International Airport Limited is covered under the Entry No. 2 of the exemption notification No. 12/2017-Central Tax (Rate) dated 28-06-2017 issued u/s Section 11 of CGST Act 2017? - HELD THAT:- No. The said exemption does not cover the activity involved herein. The said entry covers ‘Services by way of transfer of a going concern’.
If the answer is negative, then whether GST is leviable on the transfer of Existing assets (“RAB”), Aeronautical Assets, non-aeronautical assets and Capital work in progress by M/s. Airport Authority of India to the M/s. Adani Thiruvananthapuram International Airport Limited? - HELD THAT:- Since the assets mentioned have not been transferred to the concessionaire, the question per se is void-ab-initio. However, since the amounts are received as a consideration for leasing/supplying the assets to the concessionaire, GST is payable on the same.
Whether the aforesaid transfer of asset be treated as services and the classification for the same? - HELD THAT:- There is no transfer of asset and the question is void-ab-initio
Whether the concession fees paid by M/s. Adani Thiruvananthapuram International Airport Limited to M/s. Airports Authority of India be treated as consideration for transfer of business? - HELD THAT:- No. It is not consideration for transfer of business.
Whether GST is applicable on Monthly/Annual concession fees charged by the Applicant on the M/s. Adani Thiruvananthapuram International Airport Limited? - HELD THAT:- Yes. GST is applicable on annual concession fees charged by the applicant on the concessionaire.
Whether GST is leviable on the invoice raised by the Applicant for reimbursement of the salary/ staff cost on M/s. Adani Thiruvananthapuram International Airport Limited? If yes, at what rate? - HELD THAT:- Yes. GST is leviable on the invoices raised by the applicant for reimbursement of salary/staff cost on the concessionaire. It is to be paid at 9% each towards CGST and SGST or 18% IGST as may be applicable under SAC ‘998519’.
Whether GST is applicable on the reimbursement claimed of Municipal tax, Property Tax and Water Charges by the Applicant from M/s. Adani Thiruvananthapuram International Airport Limited? - If yes, at what rate? - HELD THAT:- It is opined that reimbursement of such taxes, being reimbursement of expenses, do not attract GST and therefore, GST is not applicable on the reimbursement of such charges. This ruling is applicable only if such taxes are ‘reimbursed’ by the concessionaire to the applicant. If such taxes are embedded in the consideration for lease and cannot be identified, this ruling does not hold good.
Whether any reversal is required in accordance with section 17 (2)/(3) of CGST Act viz-a-viz KSGST Act? - HELD THAT:- This ruling is requested without specifying the context or situation in which the same is put. Therefore, only a general ruling can be offered. If the applicant has inward supply of goods or services or both are used by the registered person partly for effecting taxable supplies including zero-rated supplies under this Act or under the Integrated Goods and Services Tax Act and partly for effecting exempt supplies under the said Acts, then reversal is to be made as per Section 17 (2). There is no reversal to be made under Section 17 (3) since 17 (3) only explains about the value of exempt supply.
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2024 (1) TMI 1343
Reopening of assessment u/s 147 - notices were issued against the dead person - HELD THAT:- The issue with regard to issuance of notice for reassessment under Section 148 of the Act is no more res integra in view of the decision of this Court in the case of Bhupendra Bhikhalal Desai [2021 (3) TMI 892 - GUJARAT HIGH COURT] wherein the notice issued under Section 153C of the Act against a dead person is held to be defective and consequently quashed and set aside. Decided in favour of assessee.
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2024 (1) TMI 1342
Non-payment of service tax - Challenge to assessment order - contract was awarded in Pre-GST regime but the work was executed in Post-GST regime which resulted in liability to Goods and Service Tax but the concerned Government department (Contractee) has not paid the GST - whether non-payment of tax by Government department (Contractee) absolve an assessee from his obligation and liability to pay tax? - HELD THAT:- Event of taxation under the GST Act is the supply of goods or services. Undisputedly, the event of taxation has occurred resulting in liability to tax and accordingly assessing officer has assessed the liability to tax of the appellant.
The appellant has stated that there is no illegality in the assessment order in so far as the determination of liability to the tax is concerned, but the grievance of the appellant is that since tax has not been paid by the contractee, therefore, the tax imposed to the extent of nonpayment by the contractee, be not recovered from the appellant - the submission of the appellant cannot be accepted in as much as the GST Act is a complete code in itself and payment of tax is not subject to realization of tax by an assessee. Under the circumstances, there are no manifest error of law in the impugned judgment and order passed by the learned Single Judge.
There are no merit in this appeal - appeal dismissed.
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2024 (1) TMI 1341
Validity of Revision u/s 263 - ITAT set aside revision order - Allowability of deduction for payment made to discharge mortgage debts - HELD THAT:- Assessee did not create any mortgage on the property but he had given a personal guarantee to Titco Ltd for discharge of the debt for which there was a charge over the property and for release of the mortgage on the personal guarantee of the assessee, the amount was paid by the buyer directly to the Titco Ltd. It is also not in dispute that the assessee did not avail any loan on mortgage of the property sold by him.
Tribunal has rightly held that the assessment order by the Assessing Officer is neither erroneous nor prejudicial to the interest of the Revenue. No substantial question of law.
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2024 (1) TMI 1340
Service Exports from India Scheme - challenge to provisions of Clause 3.08 (f) of the FTP 2015-20, the vires of which in relation to the Parent Act, i.e., the FTDR Act - repugnant to the Parent Act or not - requirement of obtaining IEC - it was held by High Court that 'In view of the amendment made in the FTP 2015-20, this Court does not deem it fit to venture further on individual facts of the present case' - HELD THAT:- 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.
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2024 (1) TMI 1339
Rejection of second refund claim for the third time - refund service tax which was paid on purchase of under construction residential property - violation of principles of natural justice - HELD THAT:- The respondent, while considering the discrepancies, did not even consider the findings of the CESTAT or the findings arrived at by the appellate authority in two Order-in- Appeals, and again rejected the second refund claim for the third time on the same grounds.
It is trite law that the orders passed by the higher forum is binding upon the subordinate authorities. Once the CESTAT has held that the petitioners are entitled to refund and refund could not have been rejected on the ground that service provider might have taken the CENVAT Credit and in such case whether the service provider has followed Rule 6 of the CENVAT Rules, 2004 in respect of the exempted services provided by it. As such, verification has to be done by the jurisdictional officer for non-compliance on part of the service provider, if any, and the refund claim of the petitioners could not have been denied by respondent No.3. After considering the facts and the documentary evidence, first refund claim was allowed by the respondent authority. Therefore, the second refund claim could not have been rejected on the same grounds as the orders passed by the CESTAT as well as appellate authority are binding upon the adjudicating authority being the subordinate authority.
The respondent authority has not taken into consideration any of the documents made available by the petitioners coupled with the fact that first refund claim has already been allowed after the CESTAT passed the order by the Assistant Commissioner, CGST Division-VI, Ahmedabad South.
The impugned orders are quashed and set aside. The respondents are directed to grant second refund claim passed by the adjudicating authority granting first refund claim along with statutory interest in terms of Section 11B of the Central Excise Act, 1944 as made applicable to the service tax vide Section 83 of the Finance Act, 1994 - Petition allowed.
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2024 (1) TMI 1338
Seeking grant of regular bail - commercial quantity of contraband - improper sampling procedure - HELD THAT:- The prosecution emptied all the packages that were recovered from the trolley bag of the accused persons into one composite whole and thereafter, samples from such composite whole were drawn before the learned Metropolitan Magistrate. Similar exercise was done for the packages recovered from the backpacks carried by the accused. This is clearly is not in compliance with the Standing Orders.
In Shaliender [2022 (8) TMI 1545 - DELHI HIGH COURT], this Court observed that the circumstances under which the sampling procedure could not be followed as per the mandate, needs to be duly considered after evidence has been led on record and the FSL Expert is examined. This Court held that at this stage, there is no reasonable ground to give a finding that the entire proceedings stand vitiated because of alleged sampling procedure adopted by the Investigating Agency. The Court also found the reason given by the learned Trial Court for rejecting the bail to the accused therein, which was that the quantity found even in one package was intermediatory in nature, to be relevant to refuse the bail. The said judgment may not be applicable in the facts of the present case inasmuch as the prosecution has made no endeavour to explain why the procedure set out in the Standing Orders was not followed.
In the present case, prima facie the sampling procedure followed by the prosecution was not in conformity with the terms of the Standing Orders no.1/88 and 1/89. There is also no prior history of any prosecution being pending against the accused persons herein. The accused have already been in custody for more than a year. Both the accused are aged around 20 years and the trial is likely to take long.
The applicants have been able to meet the test laid down in Section 37 of the NDPS Act and of being enlarged on bail - it is directed that the applicants be released on bail subject to fulfilment of conditions imposed - bail application allowed.
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2024 (1) TMI 1337
Validity of Reopening of assessment - order passed u/s 148A(d) - procedure for faceless assessment was not followed - as contended that the explanation offered by the assessee for the allegation against them was not considered by the AO - HELD THAT:- The assessee enclosed the ledger copy along with balance confirmation along with its reply. Therefore, the assessee submitted that the allegation that they have routed back their unaccounted income by way of unsecured loan is baseless and without any corroborative evidence.
If such was the explanation given by the assessee, it was the duty of the AO to consider the explanation and give reasons as to why it is not acceptable. However, the AO only states that the assessee has failed to substantiate the alleged amount of escaped income of Rs. 25,00,000/- is a genuine transaction.
The order passed u/s 148A(d) is a nonspeaking order, outcome of total non-application of mind and it also reveals that the Assessing Officer had no material to controvert the explanation offered by the assessee that Brightmoon Supply Pvt. Ltd. is a NBFC and loan was taken during the AY 2019-20 and repaid along with interest in the same year and this was substantiated by the assessee by producing the ledger copy of a loan account.
Thus, we find it is not a case where the power u/s 148 of the Act could have been invoked by the assessing officer. Accordingly, the appeal is allowed.
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