|
Advanced Search Options
Case Laws
Showing 441 to 460 of 1574 Records
-
2024 (12) TMI 1134
Liability of appellant to pay interest u/s 11AA of the Central Excise Act, 1994 when neither the show cause notice nor the adjudication order therein propose levy of interest - principles of natural justice - HELD THAT:- When, admittedly, the said provision was not there in the statute at the time of issuance of show cause notice nor specified in the Order-in-Original therein. Admittedly the said provision were inserted w.e.f. 26.5.1995 vide Section 73 of the Finance Act, 1995 which provides that “Where a person chargeable with duty determined under sub-section (2) of Section 11A, fails to pay such duty within three months from the date of such determination, he shall pay in addition to the duty, interest at the rate not below 18% and not exceeding 36% per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette, on such duty from the date immediately after the expiry of the said period of three months till date of payment of such duty.”
On identical issue, a co-ordinate Bench of the Tribunal in the matter of Excel Tyre & Rubber Products vs. CCE, Mangalore [2016 (8) TMI 1070 - CESTAT BANGALORE] after going through various decisions cited by the revenue in support of their submission for charging interest, including the decision of Prabhat Zarda Factory Ltd. [2002 (2) TMI 228 - CEGAT, NEW DELHI], has held that interest cannot be demanded from the appellant therein which was never resorted to either in the show cause notice or in the Order-in- Original - the views taken therein agreed upon.
The department cannot deduct and adjust or charge any interest which was neither proposed in the show cause notice nor imposed in the Order-in-Original by the Adjudicating Authority - the impugned order is set aside - Appeal allowed.
-
2024 (12) TMI 1133
Availment of MODVAT/CENVAT Credit - Suppression of manufacturing details - separate financial records were not maintained in respect of exempted products and dutiable products - violation of various provisions contained in Rule, 57 of the then Central Excise Rules, 1944 read with Rule, 12 of the CENVAT Credit Rules, 2001 and proviso of Section 11A of the Central Excise Act - HELD THAT:- Modified Value Added Tax (MODVAT) was introduced in 1986 in India that has taxed the value addition to a product and not to the product itself. A manufacturer pays duties on the inputs procured by it and capital goods purchased by it for the purpose of manufacturing final product(s) on which he pays the duty and the duty paid by him on its inputs and capital goods are credited to its account so as to enable him to adjust the said amount at the time of payment of duty on the final product, so that the ultimate consumer will not suffer the burden of duty liability again & again on the product purchased by him/her and also on all its components, those were used to manufacture the final product.
Appellant had already paid more than ₹11 lakhs for the relevant period in addition to what was taken in total towards accumulated CENVAT Credit, which of course is not due to it legally, as per provision of law but judicial decision is consistent on this issue starting from what is being relied on by this Tribunal in its final order dated 21.11.2005 namely the case of Narayan Polyplast (Respondent) [2004 (11) TMI 112 - SUPREME COURT], Punjab Tractors Ltd. [2005 (2) TMI 141 - SUPREME COURT] and Narmada Chematur Pharmaceuticals Ltd. [2004 (12) TMI 93 - SUPREME COURT] and the one passed in CENVAT regime namely Commissioner of Central Excise Vs. Ajinkya Enterprises [2012 (7) TMI 141 - BOMBAY HIGH COURT], as relied upon by learned Counsel for the Appellant, wherein it had been consistently held that once duty on final product has been accepted by the Department, CENVAT Credit availed need not be reversed even if the activity does not amount to manufacture.
In the order passed by Hon'ble Bombay High Court reservation was expressed on the ground that Revenue neutral situation were discussed in Narmada Chematur Pharmaceuticals Ltd. case but this judgment is cryptic in which discussion on the same was missing.
Concurring with the findings of the Commissioner that not a single final product was dutiable, invocation of extended period would result in the same situation as that of a duty assessment for normal period but having regard to the fact that there is a clear observation of Hon'ble Bombay High Court that specific finding concerning allegation of suppression of material fact was available in the order passed by the Commissioner, that has not been dealt with properly by the Tribunal, it is considered worthwhile to reiterate that at no point of time for the entire extended period covering calendar month from March 1997 to August 2001, final products manufactured by Appellant were dutiable and after analysing with reference to judicial precedent on the legality of availment of inadmissible credit that was adjusted against payment of tax on non dutiable products, nothing survived to confirm any liability of dues of any kind on the Appellant, who though had not mentioned while registering under Excise Act about its plan to manufacture vegetable edible oil that was subjected to nil rate of duty had filed periodical intimation under Rule, 173B of the Central Excise Rules, 1944 since 24.11.1997 after started manufacturing after March 1997, in which event for irregularity in applying for registration Appellant could have been prosecuted but that would never justify invocation of extended period.
The order passed by the Commissioner of Central Excise, Pune-III is hereby set aside - Appeal allowed.
-
2024 (12) TMI 1132
Rejection of appeal on the ground of time limitation - appeal appears to be filed after 3 years from the date of the order - HELD THAT:- As per the fact, the order was first sent by registered AD post which was returned as the factory was closed, thereafter the order was affixed on the notice board of the Assistant Commissioner following the clause (c) of Section 37C. By plain reading of Section 37C (1) sequentially from clause the (a) to (c), first the department is supposed to send the order by registered post and if it is not possible to be delivered thereafter the order should be affixed to some conspicuous part of the factory, warehouse or other place of business or usual place of residence of the person for whom such decision, order is intended and in case the order cannot be served in the manner prescribed under 37C(1) (a) and (b) then only the order should be affixed on the notice board of the office of the department. Therefore, it is found that instead of affixing a copy on the notice board, and since the order was returned which was sent by post, the department was supposed to affix copy of the order at the factory, which was not complied by the department. Therefore, the affixing tge order copy on the notice board is not the proper service of the order. In this fact only when the appellant have received the order copy on 27.03.2015 it is that which is correct date of communication of the order to the appellant, and if this be so, the appeal was filed well within the stipulated time period of two months. Hence, there is no delay.
However, since the commissioner (Appeals) has decided the appeal only on the time bar, the matter needs to be reconsidered by Commissioner (Appeals) on merit.
The impugned order is set aside - Appeal is allowed by way of remand to the Commissioner ( Appeals ), for deciding a fresh, only on merit without visiting again on the issue of time bar.
-
2024 (12) TMI 1131
Liability to pay excise duty on tools and fixtures manufactured and used captively for the manufacture of parts of motor vehicles - Applicability of exemption Notification No. 67/95-CE on tools and fixtures - Demand of excise duty on tools and fixtures cleared to the appellant's own unit at PuneRevenue neutrality - extended period of limitation.
Liability to pay excise duty on tools and fixtures manufactured and used captively for the manufacture of parts of motor vehicles - Applicability of exemption Notification No. 67/95-CE on tools and fixtures - HELD THAT:- The contention of the revenue is that since for these tools and fixtures sale invoices were raised by the appellant they are liable to pay excise duty. This contention of the revenue cannot be agreed upon for the reason that firstly the excise duty is payable only at the time of clearance of the goods secondly in the present case the tools and fixtures manufactured by the appellant is used within the factory as captive consumption for manufacture of other excisable goods that is parts of motor vehicle which are cleared on payment of duty to M/s. General Motors India Pvt Ltd. The said captive consumption is clearly covered by exemption Notification No. 67/95-CE dated 16.03.1995 therefore no excise duty is payable on tools and fixtures manufactured and captively used even though the sale invoice in favour of M/s. General Motors India Pvt Ltd were issued.
Demand of excise duty on tools and fixtures cleared to the appellant's own unit at Pune - HELD THAT:- As regard the demand of duty on tools and fixtures cleared by the appellant to their Pune unit, it is found that the Pune unit is also engaged in manufacture of parts of vehicle for General Motor India Pvt Ltd and the same is cleared on payment of duty, therefore they are eligible for Cenvat Credit of duty, if any payable by the appellant.
Revenue neutrality - extended period of limitation - HELD THAT:- Since the entire exercise of duty if any payable by the appellant which is available as Cenvat Credit to their Pune unit this amount to revenue neutrality accordingly, as per the settled law in case of the revenue neutrality malafide intention cannot be attributed to the appellant, consequently extended period is not invokable. Therefore, in the facts and circumstances in the present case and as per the settled legal position, the duty payable on the clearance of the tools and fixtures to the Pune unit is hit by limitation for the reason that the demand was raised after the normal period.
The impugned order is set aside - The appeal is allowed.
-
2024 (12) TMI 1130
Taxability - supply of PSC sleepers would amount to execution of a works contract or not - HELD THAT:- In K. Raheja Development Corporation vs. State of Karnataka [2005 (5) TMI 7 - SUPREME COURT], the Hon’ble Supreme Court was considering the taxability of a development agreement between land owners who had offered the land for construction of a multi-storied apartments and Commercial Complexes and the developer who took up construction, under this agreement. The Hon’ble Supreme Court after considering the definition of ‘works contract’, contained in the Karnataka Sales Tax Act, which is in pari materia with the definition contained in APGST Act, had held that an agreement for construction of apartments, for a valuable consideration or in installments would amount to a works contract.
In the present case, the petitioner is in regular manufacture of these sleepers which are supplied not only to Indian Railways but also to other dealers. Though the fact that the PSC Sleepers are made according to the specifications of Indian Railways, may be a significant factor which has to be taken into account, the fact remains that these sleepers are manufactured in the regular course of manufacture by the petitioner. In such circumstances, it may not be appropriate to conclude that the contract in question was a works contract and not a contract of sale.
In view of the non-exclusive nature of supply and in view of the facts mentioned above, this Writ Petition is allowed setting aside the Assessment Order dated 28.05.2009, passed by the Assessing Authority.
-
2024 (12) TMI 1129
Dismissal of the application for discharge u/s 227 of the Cr.P.C. - commission of offences like supply of narcotics - whether the dismissal of the application for discharge filed by the appellant calls for interference in view of the nature of the charge framed against him and the materials on record to support the same? - HELD THAT:- The alleged offence is consumption of narcotic drug or psychotropic substance other than those specified in or under clause (a) of Section 27, NDPS Act, and therefore, the question is whether any material is available to charge the appellant thereunder. The contention of the appellant is that he has been arraigned as accused No.13 based on the confession statement of co-accused viz., accused No.1. Certainly, in the absence of any other material on record to connect the appellant with the crime, the confession statement of the co-accused by itself cannot be the reason for his implication in the crime.
This view has been fortified by the law laid down in Suresh Budharmal Kalani v. State of Maharashtra [1998 (9) TMI 656 - SUPREME COURT], wherein it was stated that a co-accused’s confession containing incriminating matter against a person would not by itself suffice to frame charge against him. The materials on record would reveal that the investigating agency had not subjected him to medical examination and instead, going by complaint Witness No.23, he smelt the accused.
The sole material available against the appellant is the confession statement of the co-accused viz., accused No.1, which undoubtedly cannot translate into admissible evidence at the stage of trial and against the appellant. When that be the position, how can it be said that a prima facie case is made out to make the appellant to stand the trial. There can be no doubt with respect to the position that standing the trial is an ordeal and, therefore, in a case where there is no material at all which could be translated into evidence at the trial stage it would be a miscarriage of justice to make the person concerned to stand the trial.
In view of the settled position of law stated and reiterated by this Court, the impugned judgment is liable to be interfered with and the appeal is liable to be allowed - Appeal allowed.
-
2024 (12) TMI 1128
Validity and conditions of the oral gift executed in 1953 - gift for past services - onerous gifts - Applicability of the Transfer of Property Act, 1882, to the case - delay in filing suit - HELD THAT:- As far back as 1870, the Privy Council in Forbes v. Meer Mahomed Tuquee, had an occasion to consider broadly a similar case, where the appellant/plaintiff sought resumption of land granted to the defendants. The land was originally granted on the condition of rendering services, which were to keep off the incursion of wild elephants and attend to the safety of tenants in nearby areas. It was the appellants case that since the services are not required any more as the incursion of elephants has itself ceased, the land should revert to him as part of their zamindari. Lower Court decreed the suit in favour of the plaintiff on the grounds, inter alia, that since the defendants therein have ceased to render the services, the land must revert to the plaintiff therein. This decree of the lower court was reversed by the High Court and the matter finally reached the Privy Council where defendants/grantees argued that they had rendered the services till they were required to do so and since the elephant incursion has stopped on its own, they are no longer bound by the condition.
Similarly in the present case, the gift was for past services but even if it is assumed that it was for some past and some future services, there was no occasion for the defendants to render the services as the appellants had left the village and now, when defendants have been enjoying peaceful possession of land for long, resumption of land in favour of appellants will not be justified. The defendants had produced their witness DW-1 before the Court who gave the evidence that the plaintiffs had left the village long ago, immediately after the death of the Donor, which would be only a few years after the gift deed was executed in 1953 and therefore, there was no question of rendering any further service.
On a perusal of the material on record, both the plaint and PW-1’s deposition are conspicuously silent regarding any specific instances where services were denied by the defendants or their predecessors-in-interest. There was only a vague and conclusory allegation that services have been refused, without any evidence in support of the same.
Now all conditions for a valid gift deed were in existence when it was made on 13.12.1953. The subject matter of transfer was an immovable property (land), and it was without any consideration. There was also an acceptance of this gift deed by the donees, when the donor was alive, as possession of this land was given the very same day to the donees and this undisputed fact is on record - Under TPA a valid gift can be made without giving immediate possession to the donee as has been held by this Court in Renikuntla Rajamma v. K. Sarwanamma [2014 (7) TMI 1284 - SUPREME COURT] where it was held that section 123 of TPA supersedes Hindu Law and delivery of possession is not an essential requirement for the gift to be valid under provisions of TPA.
Section 127 of TPA, which permits onerous gifts, was not in force in present day Haryana which was earlier part of Punjab, as TPA was not applicable there. Nor can we say that such a condition being based on equity, justice & good conscience can be read into the gift deed as a valid condition - The stipulated condition of “services” and the continuation of the rendering of such services has to be read in the context when the deed was executed. Thus, services shall be understood only as ‘past services’ rendered, or at most, the services which had to be rendered by the original donees to the original donor during his lifetime.
There are no doubt that the plaintiffs had absolutely no case. Hence, the impugned judgment calls for no interference - appeal dismissed.
-
2024 (12) TMI 1127
Civil dispute or criminal offence? - petitioner expresses a grievance that in the absence of any order of stay passed by the High Court, the proceedings against the petitioner which continued have reached the stage of charges being framed, thereby effectively rendering the petition before the High Court infructuous - HELD THAT:- The exact reason is not known as to why the learned Judge of the High Court, despite lapse of 14 (fourteen) months since judgment was reserved, could not deliver the judgment and dispose of the petition one way or the other.
Be that as it may, without expressing any further comment on the matter of keeping a reserved judgment pending for 14 (fourteen) months and then not delivering the same, we request the roster bench of the High Court to dispose of the petition in accordance with law as early as possible, preferably within three months from date upon hearing all the parties. Should there be any lack of cooperation from any party, the High Court may proceed according to law.
Till such time, the matter is considered next by the High Court, there shall be stay of proceedings before the trial court, i.e., the court of the Additional Chief Judicial Magistrate-IV, Varanasi, in Case No. 330 of 2019 - appeal disposed off.
-
2024 (12) TMI 1126
Legality of freezing of bank account of the petitioner company by invoking the provisions of Section 11 (2) of the Excise Act - recovery with interest and penalty - HELD THAT:- As per the Excise Act, the authorities are empowered to conduct special audit in terms of Section 14A and in certain circumstances in terms of Section 14AA. Section 14 of the Excise Act empowers the Central Excise Officer to summon any person to give evidence and produce documents in inquiries under this Act - As far as the present case is concerned, the Central Government Audit was being conducted as the Superintendent has communicated about the records to be made available for the said purpose. He, therefore, cannot be said to be unauthorized for issuing letters. After the audit has been conducted, it is found that the petitioner company has voluntarily deposited the excise duty and it was also noticed that payment of duty was delayed.
Demand of interest and penalty - HELD THAT:- Admittedly, the petitioner has been demanded interest and penalty on the excise duty, which the petitioner company has already paid on the basis of an audit report. The same was admittedly paid after due date. While this Court notes that the amount was paid voluntarily before any interest or penalty could have been imposed, show cause notice was required to be given to it to explain the delay as Section 11AA as well as Section 11AC lay down different circumstances wherein the interest would be payable. If the petitioner would have been given an opportunity of hearing, the authorities would have reached to a conclusion whether the duty paid by the petitioner can be said to be delayed or not firstly and secondly whether the same was voluntarily deposited and the benefit was available to it.
As per the written submissions filed by the petitioner company, it is apparent that the financial implications identified in audit were required to be placed before the petitioner company and it should have been given an opportunity of hearing and put up its defence whereafter a speaking order was required to be passed. If such an order would have been passed, the petitioner would also have an opportunity to file an appeal against the same.
The action of demanding the amount from the petitioner and imposing penalty is not sustainable in law. The order dated 02.05.2024 and summons dated 17.09.2024 are quashed and set aside - Petition allowed.
-
2024 (12) TMI 1125
Challenge to tax liability imposed without pre-show cause notice - petitioner has already deposited 10% of tax liability at the stage of first appeal and given an opportunity shall deposit further 10% of tax liability - HELD THAT:- Matter requires consideration - Let counter affidavit by filed by learned Standing Counsel within four weeks'. Rejoinder affidavit, if any, may be filed within two weeks' thereafter.
List this case on 13th February, 2025.
-
2024 (12) TMI 1124
Levy of penalty - seizure of goods during transportation - opportunity of hearing was not provided - violation of principles of natural justice - HELD THAT:- In the present case, the show cause notice was issued on 29.10.2024, while the order of penalty was passed on 05.11.2024, within the aforesaid period of seven days provided under the notice issued to the Petitioner.
Form GST MOV 07 issued under Section 129(3) of the CGST Act stipulates that time of seven days is given for answering the show cause notice - there is a clear procedural violation prescribed under the Act. Apart from the same, it would also amount to violation of principles of natural justice as adequate opportunity has not been given to the petitioner.
The order of penalty, dated 05.11.2024, bearing GST MOV-07 passed by the 4th respondent is set aside and the matter is remanded back to the 4th respondent to pass necessary orders after due opportunity of hearing and opportunity of making out its case is given to the petitioner, in accordance with law.
Petition allowed by way of remand.
-
2024 (12) TMI 1123
Attachment and Appropriation of funds of amount from the petitioner’s Axis Bank, Bhayander Branch - non-compliance with the principles of natural justice and fair play - HELD THAT:- This is not a case where the petitioner should be allowed to deal with any of the amounts in the petitioner’s Axis Bank Account No. 918020073067221 at Bhayander Branch. At the same time, since the petitioner has a right to question the Order-in-Original dated 25 May 2023, it will not be proper if the petitioner is deprived of this valuable right on account of his not being able to arrange the pre-deposit amount of Rs.8,76,564/-. Without depositing this amount, the petitioner’s appeal against the order dated 25 May 2023 would not be entertained.
The Axis Bank, Bhayander Branch is directed to transfer the entire amount in the petitioner’s bank account to the Registrar of this Court within two weeks of the parties producing an authenticated copy of this order - Once the Bank deposits this amount in the Court, the Registrar of this Court must transfer an amount of Rs. 8,76,564/- to the 2nd respondent within two weeks of such deposit being made.
Appeal disposed off.
-
2024 (12) TMI 1122
Challenge to impugned ex-parte order passed by the respondent no.2 u/s 74 of the U.P. Goods and Services Tax Act, 2017/Central Goods and Services Tax Act, 2017 - requirement of granting opportunity of personal hearing - violation of principles of natural justice - HELD THAT:- Applying the ratio as laid down by the coordinate Bench of this Court in the case of Mahaveer Trading Company vs. Deputy Commissioner State Tax and another [2024 (3) TMI 334 - ALLAHABAD HIGH COURT], it is opined that opportunity of personal hearing should have been granted to the petitioner under Section 75(4) of the Uttar Pradesh Goods and Services Tax Act, 2017 before passing any adverse order against the petitioner.
The impugned orders dated 29.08.2024 passed by respondent no.2/Deputy Commissioner, State Tax, Kanpur Dehat, U.P. are quashed and set-aside with a direction given to the officer concerned to grant the petitioner another opportunity of filing a fresh reply and thereafter fix a date of hearing and pass a reasoned order - Petition disposed off.
-
2024 (12) TMI 1121
Blocking the electronic credit ledger under Rule 86A of the Central Goods & Services Tax Rules, 2017 - ITC was obtained from fake and non-existent suppliers - HELD THAT:- None of the proceedings and documents, produced by the petitioner, before this Court, makes out any such direction by the Commissioner, requiring the 2nd respondent to simply block ITC of the dealers, such as, the petitioner herein. The petitioner has produced a proceeding of the Joint Commissioner, in which the 2nd respondent was informed that the list of fake / suspicious units had been received and it is necessary to cause verification and blockage of recovery of inadmissible ITC. For this purpose, the 2nd respondent was directed to conduct a physical verification to be scheduled between 22.05.2024 to 29.05.2024. The direction, in these proceedings, was to ascertain facts and to take action accordingly. There is no direction to block, the credit ledger, without any exception. It may be noted that ITC of the petitioner was blocked in March, 2024 and this proceeding has no relevance. Accordingly this contention of the petitioner is also rejected.
The petitioner’s contention that the power under Rule 86A has been invoked without giving any reasons and without looking into the past conduct of the petitioner also requires to be rejected. Though the initial communication, dated 20.03.2024, had given a cryptic description of the reason for blocking ITC, the fact remains that the ground on which such ITC has been blocked can be made out. However, further details have also been given subsequently. In such circumstances, the contention, that no cogent reasons are given, cannot be accepted. It may also be noticed that the blocking of ITC does not amount to recovery of tax, but only stops the use of ineligible ITC. In such cases, the supply of reasons, initially in a cryptic manner, in the order, and subsequent elaboration, of those reasons, meets the requirement of principles of natural justice.
Rule 86A (1)(d) stipulates that the appropriate authority, after giving reasons to be recorded in writing, may disallow debit of an amount equivalent to such credit in the electronic credit ledger, either for discharge of any liability or for claim of any refund of an unused amount. The reasons, that need to be set out in the order of blockage, would have to indicate why the order of blockage is being issued. In the present case, the initial order carried only the basic ground - The reasons set out in the GST portal, barely pass muster. This appears to be a case where, technology, instead of assisting the cause of justice, is actually hindering it. It is time that the authorities took note of this fact, and made necessary changes to ensure that there is no space constraint, in the recording of reasons, passed in the GST portal.
The scheme of this Rule is to put aside such amount of input tax credit, which has been wrongfully utilized, whether it is actually available in the credit ledger or not, and to await an appropriate order of assessment and penalty, if any, either under Section 73 or Section 74 of the GST Act, read with Section 122 of the GST Act. In view of this interpretation, we are unable, with all due respect, to agree with the view taken by the Hon’ble High Court of Gujarat or the Hon’ble High Court of Telangana.
There are no merit in the present writ petition - petition dismissed.
-
2024 (12) TMI 1120
Refund of unutilized input tax credit (ITC) - input tax credit accumulated in the electronic credit ledger for the said period could not be utilized - rejection of refund on the ground that as per Circular No. 125/44/2019-GST dated 18.11.2019, there is no provision for refund of unblocked ITC, as such the refund claim is inadmissible - HELD THAT:- It is not a case that petitioner has debited the tax dues for March, 2021 both through electronic credit ledger which was lying blocked during that period, and through electronic cash ledger through which he had actually paid. Therefore, there was no duplication or twice payment of the tax for the said tax period. The blocking and unblocking of ITC by the SGST authorities between 20.03.2021 and 07.07.2021 were not subject matter of any litigation where the issue of legality or correctness of such blocking was determined. Petitioner by making payment of tax dues through electronic cash ledger for the tax period March, 2021 had duly discharged his output tax liability as the input tax had already been deposited by his purchaser. The accumulated ITC in his electronic credit ledger in lieu thereof could well be utilized for future tax liability. However petitioner has not been undertaking business since March, 2021 as stated by learned counsel for the petitioner.
The accumulated ITC remains in his electronic credit ledger. In that case, the claim for refund is not made out in terms of Section 54 (3) of the CGST Act as none of the enumerated conditions are made out. Petitioner under a misconception of law has sought refund of the accumulated ITC in its electronic credit ledger when there has been no duplication of payment of tax for any tax period. It is up to the petitioner to utilize the unutilized ITC for future tax liabilities.
There are no illegality in the impugned order calling for interference in exercise of writ jurisdiction. Accordingly, the instant petition is dismissed.
-
2024 (12) TMI 1119
Challenge to final order passed by the Goods and Services Tax Officer, in terms of which the Show Cause Notice proceedings have come to be concluded against the petitioner/assessee - mismatch between the disclosures appearing in GSTR-3B and GSTR-01 - it is contended that the mere subsequent cancellation of registration of those suppliers would not have justified the passing of the final order - HELD THAT:- The respondents, submitted that rather than the matter being kept pending on the board of this Court, the ends of justice would warrant the impugned order being set aside, subject to liberty being reserved to the respondents to decide the matter afresh.
The final order dated 27 August 2024 is quashed. The GST Officer shall proceed to decide the SCN proceedings afresh bearing in mind the reply which has been submitted by the writ petitioner and by passing a reasoned and speaking order. All rights and contentions of respective parties on merits are kept open - petition allowed.
-
2024 (12) TMI 1118
Non-payment of IGST as recipient of services (RCM) on reverse charge mechanism - service of transportation of goods by vessel from the place outside India up to the customs station of clearance in India, relating service or import of goods in terms of Section 5(3) of IGST Act, 2017 read with Notification No.10/2017-Integrated Tax (Rate) - HELD THAT:- It is noticed that on the date of the impugned order, the Hon'ble Supreme Court had not pronounced its judgment in the case of UNION OF INDIA & ANR. VERSUS M/S MOHIT MINERALS PVT. LTD. THROUGH DIRECTOR [2022 (5) TMI 968 - SUPREME COURT]. The impugned order dated 23.03.2022, whereas, the Hon'ble Supreme Court in the case of Union of India and another Vs. Mohit Minerals Private limited had pronounced its order on 19.05.2022. The respondent had no occasion to consider the same.
Since the respondent had no occasion to deal with the same, the impugned order can be set aside and remitted back to the respondent to pass a fresh order in the light of the decision of the Hon'ble Supreme Court in the case of Union of India Vs. Mohit Minerals Private Limited - Writ Petition stands allowed by way of remand.
-
2024 (12) TMI 1117
Challenge to assessment order - it is alleged that the proceedings did not contain a DIN number - no DIN number on the impugned assessment order - HELD THAT:- A Division Bench of this Court in the case of M/s. Cluster Enterprises Vs. The Deputy Assistant Commissioner (ST)-2, Kadapa [2024 (7) TMI 1512 - ANDHRA PRADESH HIGH COURT], on the basis of the circular, dated 23.12.2019, bearing No.128/47/2019-GST, issued by the C.B.I.C., had held that non-mention of a DIN number would mitigate against the validity of such proceedings. Another Division Bench of this Court in the case of Sai Manikanta Electrical Contractors Vs. The Deputy Commissioner, Special Circle, Visakhapatnam [2024 (6) TMI 1158 - ANDHRA PRADESH HIGH COURT], had also held that non-mention of a DIN number would require the order to be set aside.
In view of the aforesaid judgments and the circular issued by the C.B.I.C., the non-mention of a DIN number in the order, which was uploaded in the portal, requires the impugned order to be set aside.
The impugned proceedings set aside - petition allowed.
-
2024 (12) TMI 1116
Reassessment proceedings initiated against company insolvent - HELD THAT:-On perusal of the documents brought before the Court and considering the submissions made on behalf of the parties, this Court is of the view that the initiation of reassessment proceedings u/s 148A (b) and 148A (d) of the Income Tax Act, 1961 and the subsequent issuance of the notice u/s 148, were in violation of the statutory preconditions under the Act.
Section 14 of the IBC imposes a moratorium that prohibits proceedings against a company undergoing Corporate Insolvency Resolution Process (CIRP). Furthermore, the resolution plan approved by the National Company Law Tribunal (NCLT) has overriding authority, as per Section 238 of the IBC and expressly precludes reassessment or revision proceedings for the period prior to the effective date stipulated in the plan.
The Court holds that the reassessment proceedings initiated against the petitioner are without jurisdiction, arbitrary, and unsustainable in law. Consequently, the writ petition is allowed, and the impugned notices and orders issued under Sections 148A (b), 148A (d), and 148 of the Income Tax Act, along with all consequential proceedings, are quashed.
-
2024 (12) TMI 1115
Assessment appealable before the CIT (A) u/s 246A - hierarchy of different adjudicating authorities for redressal of grievances arising under the provisions of the Act - petitioner without exhausting the statutory remedies provided under the Act of 1961 has approached directly to this Court invoking extraordinary jurisdiction vested in this under Article 226 of the Constitution of India
HELD THAT:- We are aware that availability of alternative remedy is not a complete bar to entertain a petition under Article 226 of the Constitution of India and this Court may in its discretion entertain a petition directly against an order of Assessment provided it is demonstrated that the impugned order of Assessment is passed by the incompetent authority or that the same suffers from violation of principles of natural justice. The writ petition can also be entertained in case the vires of any statutory provision is subject matter of challenge in the petition.
We are of the considered opinion that the instant case does not fall under any of the exceptions enumerated hereinabove. The order impugned is passed by the Assessing Authority having jurisdiction in the matter.
Regarding principles of natural justice, serious dispute is raised by the parties with regard to the receipt of reply to the show-cause notice dated 16.09.2022 by the Assessing Authority as also the request for personal hearing from the petitioner. From the material on record, we are prima-facie convinced that the petitioner had failed to submit the reply to the show-cause notice dated 16.09.2022 well before the time given. The request for personal hearing was made after the time for submission of reply and seeking personal hearing was already over.
It is not a clear case of violation of principle of natural justice. We, however, leave this aspect also to be looked into and determined by the appellate authority should the petitioner prefer appeal under the Act of 1961.
We are not inclined to entertain the petition and relegate the petitioner to approach the appellate authority for challenging the impugned order of Assessment.
The petition is, therefore, dismissed with liberty to the petitioner to avail of the remedy of appeal provided under the Act of 1961. We, however, provide that in case the petitioner chooses to file statutory appeal before the appellate authority under the Act of 1961, the period spent by him in this Court shall be eschewed from the computation of limitation.
............
|
9911796707
