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Showing 361 to 380 of 1551 Records
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2024 (2) TMI 1191
Condonation of delay - delay of 206 days - assessee had not moved any condonation application explaining the reasons - HELD THAT:- Though there is a substantial delay of 206 days involved in filing of the appeal, but the assessee had not moved any condonation application explaining the reasons leading to same. As observed by us hereinabove, as the assessee had not only remained negligent regarding the process of law and had filed the appeal before us after 206 days but had also failed to come forth with any explanation as regards the reasons leading to the said delay, therefore, there appears to be no reason to adopt a liberal view and condone the same.
Also, we may observe at this juncture that the law of limitation has to be construed strictly as it has an effect of vesting with one and taking away the right from the other party. The delay in filing of the appeals cannot be condoned in a mechanical or a routine manner since that would undoubtedly jeopardize the legislative intent behind Section 5 of the Limitation Act.
The expression “sufficient cause” will always have relevancy to reasonableness. The action which can be condoned by the court should fall within the realm of normal human conduct or normal conduct of a litigant. However, as observed by us hereinabove, as the assessee appellant in the present case had not filed any condonation application explaining the reasons leading to the delay in filing the present appeal, and had adopted a lackadaisical approach, therefore, there can be no reason to condone the delay of 206 days involved in preferring of the captioned appeal.
We observe that though there is an inordinate delay of 206 days involved in filing of the present appeal but the assessee had not filed any application seeking condonation of delay and this kind of conduct should be deprecated. Decided against assessee.
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2024 (2) TMI 1190
Addition u/s 40(a)(i) - Royalties and fees for technical services - non-deduction of TDS on the commission payment - scope of MFN clause available in the protocol of Indo-Belgium DTAA - HELD THAT:- As decided by the Coordinate Bench of the Tribunal for assessment year 2007-08 [2018 (10) TMI 2024 - ITAT CHENNAI] CIT(A) held that the payment made to SG Exprover cannot be considered to partake of the nature of “fees for technical services” and allowed the ground raised by the assessee without obtaining any comments from the AO. Under the above facts and circumstances, we direct the Assessing Officer to examine the MFN clause available in the Protocol of Indo-Belgium DTAA as to whether the same shall override the specific provisions laid down under Article 12 and decide the issue afresh in accordance with law. Thus we direct the Assessing Officer to re-examine and decide the issue afresh in accordance law. Thus, the ground raised by the Revenue is allowed for statistical purposes.
Disallowance u/s 14A - investments which yield exempt income during the year under consideration - HELD THAT:- As perused the decision of Vireet Investment (P) Ltd [2017 (6) TMI 1124 - ITAT DELHI] wherein, it has been held that while computing the disallowance under section 14A of the Act read with Rule 8D(2)(ii)/(iii) of Income Tax Rules, 1962, only the investments which yielded exempt income during the year under consideration are to be included for the purpose of average value of investments. DR could not controvert the above decision of the Delhi Special Bench. Thus, we find no infirmity in the order of the ld. CIT(A) on this issue and dismiss the ground raised by the Revenue.
Disallowance u/s 14A added in the book profit u/s 115JB - HELD THAT:- As decided in Beach Minerals Company P. Ltd [2015 (8) TMI 1031 - ITAT CHENNAI] and Vireet Investment (P) Ltd [2017 (6) TMI 1124 - ITAT DELHI] computation under clause (f) of Explanation 1 to Section 115JB(2) is to be made without resorting to the computation as contemplated under section 14A read with Rule 8D of the Income Tax Rules. Hence, we are of the opinion that the ld. CIT(A) has rightly directed the Assessing Officer to delete the addition made to book profits with respect to the disallowance made under section 14A r.w.s. Rule 8D.
Nature of receipt - investment promotion subsidy - revenue receipt or capital receipt - HELD THAT:- We find that in the case of Shree Balaji Alloys [2011 (1) TMI 394 - JAMMU AND KASHMIR HIGH COURT] by considering its own judgement in the case of CIT v. Ponni Sugars & Chemicals Ltd. [2008 (9) TMI 14 - SUPREME COURT] dismissed the appeal of the Department and upheld the judgement of Hon’ble High Court of Jammu & Kashmir in the case of Shree Balaji Alloys & Others v. CIT, [2011 (1) TMI 394 - JAMMU AND KASHMIR HIGH COURT] wherein has held Excise refund and interest subsidy received by the assessee in pursuance to the incentives announced and sanctioned are capital receipts.
Thus we find that the subsidy received by the assessee has close proximity with the industrial policy of the Government of Tamil Nadu as notified vide GO No. 43 and in addition, GO No. 80 also states that the incentive is given towards Investment Promotion Subsidy. Therefore, the incentive subsidy has to be considered as capital receipt.
As in the present case, the assessee has invested more than ₹. 300 crores in pursuance of GO issued by the Tamil Nadu Government and therefore, the subsidy received by the assessee has close proximity with the State Government policy. Thus the ground raised by the Revenue is dismissed.
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2024 (2) TMI 1189
Penalty imposed u/s 112(a) - Import confectionary items from Dubai - immunity from prosecution and fine/penalty - Tribunal held that since the appellant was a co-noticee along with M/s. A.K.S. Apparels and Mr. Nitin Gupta, appellant was also entitled to immunity granted by the Settlement Commission to the main noticee - HELD THAT:- We are informed that a Special Leave Petition impugning the said judgment in M/s. Seville Products [2024 (1) TMI 686 - SC ORDER] has been dismissed by the Hon’ble Supreme Court.
Thus, the impugned order passed by the Tribunal granting immunity to the respondent is set aside. The appeal of the respondent is restored on the records of the Tribunal. The matter is remitted to the Tribunal to decide the appeal filed by the respondent on merits in accordance with law.
The appeal is accordingly disposed of in view of the above.
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2024 (2) TMI 1188
Violation of principles of natural justice - Interim Demand Notice demanding stamp duty issued without adequately scrutinizing the case, and without going into the details along with all the supporting documents in the matter - HELD THAT:- The Petitioner had filed an Appeal challenging the Order dated 14th September 2021 on 2nd November 2021. A hearing was held in the said Appeal on 7th June 2023 and Petitioner filed its written submissions on 7th August 2023. Despite the same, and despite a period of more than 2 years having elapsed, Respondent No. 2 has not passed any order on the said Appeal. It is informed that the Presiding Officer of Respondent No. 2, who heard the said Appeal on 7th June 2023, has changed. In these circumstances, it would be in the interests of justice that Respondent No. 2 is directed to re-hear the Appeal and pass an order in the said Appeal filed by the Petitioner, in accordance with law, within a period of four months from the date of intimation of this Order.
Further, since, the said Demand Notice dated 16th March 2022 and the letter dated 23rd January 2024 had been issued by Respondent No. 3, pursuant to the said Order dated 14th September 2021, which is the subject matter of the aforesaid Appeal, it would also be in the interests of justice that, till the said Appeal is re-heard and an order is passed on the said Appeal, the said Demand Notice dated 16th March 2022 and the said letter dated 23rd January 2024 remains stayed.
Respondent No. 2 is directed to re-hear Appeal No. 227 of 2021 filed by the Petitioner and pass an Order, in accordance with law, expeditiously and, in any case, within a period of four months from the date of intimation of this Order - Till the said Order is passed by Respondent No. 2 on the said Appeal, the Demand Notice dated 16th March 2022 and the letter dated 23rd January 2024 issued by Respondent No. 3 shall remain stayed and the Petitioner shall be permitted to operate its ICICI Bank Account.
Writ petition disposed off.
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2024 (2) TMI 1187
Liquidation of the Corporate Debtor under Section 33 of the IBC - whether the statutory provisions of IBC provides scope for the CoC to consider approval of liquidation of the Corporate Debtor before inviting resolution plans? - HELD THAT:- The statutory provisions of IBC allow the CoC to consider approval of liquidation of the Corporate Debtor before inviting resolution plans. However, it depends on the facts of each case as to whether the decision to liquidate is in conformity with the provisions of the IBC and to that extent open to judicial review by the Adjudicating Authority and this Appellate Tribunal.
SBI had failed to gain possession of the Assets of the Corporate Debtor inspite of filing SARFAESI proceedings. It was also pointed out that though the IRP had sent several mails to the suspended management to be present and assist in the handover of the assets of the Corporate Debtor no such assistance was given in handing over the assets of the Corporate Debtor. Therefore, the CoC in the exercise of its powers endowed upon it by Section 33(2) of the IBC was entitled to liquidate the Corporate Debtor.
Whether in the present facts of the case there were good reasons for the CoC to initiate liquidation of the Corporate Debtor in the exercise of its commercial wisdom? - whether there existed any cogent ground for the Adjudicating Authority to reject the recommendation made by the CoC to initiate liquidation of the present Corporate Debtor? - HELD THAT:- From the CoC minutes it is also clear that the RP had noticed that Corporate Debtor is not a going concern for 3 years prior to CIRP. This fact has not been contested by the Appellants either. In the present case, when the Corporate Debtor has not been functioning for three years prior to admission into CIRP, the objection raised by the Appellant to the decision of the CoC to liquidate the Corporate Debtor as arbitrary therefore lacks merit. Moreover, the IRP did not have requisite and certain information to draw up proper information memorandum. The CoC had also noted that the IRP had not provided requisite documents like Information Memorandum, Evaluation Matrix, RFRP to the PRAs to facilitate submission of plans. Hence the CoC rightly felt that in the given circumstances it was unlikely that a viable and feasible resolution plan would come around. Continuation of CIRP would only have enhanced the CIRP cost without corresponding advantage.
In the present case, the CoC took a decision for liquidation of the Corporate Debtor after holding 5 meetings. This decision was taken by 100% vote share. Thus, this decision of the CoC conforms to the requirements laid down in terms of Section 33(2) of the IBC - The Adjudicating Authority has therefore not committed any error in approving the recommendation of the CoC to liquidate the Corporate Debtor in such circumstances.
Furthermore, the decision of the CoC to liquidate could not have been interfered with by the Adjudicating Authority because of the limited powers of judicial review. It is a well settled proposition of law that the Adjudicating Authority has been bestowed with limited jurisdiction as specified in the IBC while dealing with matters relating to liquidation of the Corporate Debtor and cannot enter upon adjudicating into the merits of a business decision taken by the CoC with requisite majority in its commercial wisdom to liquidate a corporate debtor. In the present case too, the Adjudicating Authority has abided by the discipline of the statutory provisions of the IBC.
This decision of the CoC to liquidate having been approved by the Adjudicating Authority, the same is not open to judicial review when no grounds have been made out as provided under Section 61(4) of the IBC of material irregularity or fraud committed in relation to such an order. As both these grounds do not arise in the facts in this case, hence the objections of the Appellants to set aside the resolution passed by the CoC to initiate liquidation has no merit. No infirmity is found in the order of the Adjudicating Authority approving the decision of the CoC to liquidate the Corporate Debtor.
There are no good ground to interfere with the impugned order passed by the Adjudicating Authority. There is no merit in both the appeals - appeal dismissed.
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2024 (2) TMI 1186
Exemption from service tax - Cleaning Services - Manpower Recruitment or Supply Agency Services - Housekeeping services - Rent-a-cab service - Solid Waste Management services to various government offices, government hospitals, community health centers, medical colleges, municipal corporation, Government Educational Institutes - failure to show the amount of taxable value and Service tax payable thereon in their ST-3 returns filed with the department - Sr. No. 25(a) of Notification No. 25/2012-ST dated 20.06.2012 - Time Limitation.
Service tax demand of service tax dropped by the Ld. Commissioner in impugned order - it has been alleged in the show cause notice dated 20.11.2017 that the respondent has collected the Service tax but not paid to the Government ex-chequer - HELD THAT:- The Ld. Commissioner after verifying the CA Certificate dated 09.07.2019, ledger of Service tax liability, ST-3 returns and other documents etc., found that the difference of Service tax collected and not paid is of Rs. 2,15,195/- only. Ld. Commissioner has therefore held the demand of Rs. 2,15,195/- is sustainable and remaining amount is not sustainable - as regard the said dropped demand revenue in the present appeal nowhere rely upon any details/ documents or any evidence by which it can be concluded that the demand dropped by the Ld. Adjudicating authority is not correct.
Services provided by the respondent to the Government Hospitals, Medical Colleges, Primary Health Centres, Community Health centres, etc. - manpower recruitment or supply agency services or not - Sr. No. 25(a) of Notification No. 25/2012-ST dated 20.06.2012 as amended by Notification No. 6/2014-ST dated 11.07.2014 - HELD THAT:- In the impugned matter revenue nowhere dispute the fact that Government Hospital, Health Centres are engaged in providing services related to public health. The para–medic personnel, etc. provided by the respondent to said Hospitals / Health Centre have worked under the supervision of authorized Medical Practitioner i.e Medical Superintendent, Medical Officers of the Hospital, health centres etc. Thus the Medical Superintendent, Medical Officers of the Hospital and Health centres have provided service by way of public health to the said government hospital and health centre run by the government in the capacity of government employee. The para-medics, etc., who worked in the same hospitals/ health centres are their subordinates and carried out their instructions in connection with public health and they were all providing the services to government with a common goal of public health. From the above exemption entry it is clear that the intention of the legislature is clear that services contributing in the public health is required to be exempted from payment of Service tax. Further the said entry of above Notification supra is for providing public health services “to Government” and not “by government”.
There are strength in the finding of Ld. Adjudicating authority that any services provided to government in relation to water supply, public health, sanitation conservancy solid waste management or slum improvement etc, are exempted from payment of service tax in terms of above mentioned Notification - no reason exist for interfering in the conclusion reached by the Ld. Commissioner in the impugned order. The impugned order is correct, legal and does not suffer from any infirmity.
The revenue for denying the claim of above exemption also take the ground that the para–medics and other staff provided by the respondent do not have any direct contract with the patients and do not raise any invoices on the patients and also do not have any legal responsibility to provide public health services on his own account - There is no requirement that such para-medics and personnel must issue invoices in the name of patients. In such circumstance, it is not permissible to insert such a requirement with a view to deny the exemption. The requirement of the said above exemption entry is only that services must be provided to Government in relation to public health. Once it is the requirements of exemption only, any further condition of contract or invoice between the service provider and patients that is nowhere specified in the above notification cannot be read into it - the services provided by the respondent to Government Hospitals/ Medical offices/ Health Centres etc. for providing public health related services are eligible for exemption under Sr. No. 25(a) of Notification No. 25/2012-ST dated 20.06.2012 as amended vide Notification No. 06/2012-ST dated 11.07.2014.
Demand dropped by the Ld. Commissioner on services provided to the Education Institution i.e Government Arts & Commerce College, Government Medical College, Government college, Nursing College, Gujarat Secondary and Higher Secondary Education Board, Gujarat Vidhyapith Ashram Road, training Centers, etc. - HELD THAT:- In the impugned matter there is no dispute on the facts that the service recipients are educational institutions. As per the revenue the activity of respondent are not covered under the Sr. No. 9 of Notification No. 25/2012-ST - Serial No. 9 of the Mega Exemption Notification No. 25/2012-S.T., dated 20-06-2012 exempted from service tax the services by way of “(a) auxiliary education services to an educational institution”. Further, vide Notification No. 06/2014, dated 11-07-2014 , Entry 9 came to be substituted.
From the above Notification and Clarification issued by the Board in Circular No. 172/7/2013-S.T., dated 19-9-2013, it is clear that all the Services provided to education institution such a transport services, hostels, housekeeping, security, canteen services and any other type of services provided to education institution are covered under the above entry of exemption notification and exempted from payment of service tax. In the disputed matter it is on record that respondent supply the manpower to educational institutions and said staff supplied by the respondent have supported the educational institutions for performing their works/activities related to education. Therefore, respondent is eligible for exemption from payment of Service Tax for supply of manpower to above mentioned educational institutions under Sr. No. 9 of Notification No. 25/2012-ST dated 20.06.2012.
Cleaning and housekeeping services provided by the respondent to Government offices, Courts, government undertakings - HELD THAT:- As per Sr. No. 25(a) of Notification No. 25/2012-ST dated 20.06.2012 as amended vide Notification No. 6/2014-ST dated 11.07.2014, service provided to Government, Local Authority or a Government authority by way of carrying out any activity in relation to public health, sanitation conservancy, solid waste management etc. are exempted from service tax - in the present matter revenue demanded the services tax from the respondent for providing cleaning services to Government Hospitals, courts, local authorities, government undertakings etc. The cleaning and housekeeping services are an essential parts of sanitation conservancy and waste management and respondent are eligible for exemption under Sr. No. 25(a) of the Mega Notification No. 25/2012-ST dated 20.06.2012 for cleaning and Housekeeping service provided to Government Hospitals and other government entities. Accordingly the demand of service tax with respect to cleaning services provided to Government entities cannot be sustained and rightly dropped by the Ld. Adjudicating authority.
Time Limitation - HELD THAT:- There are no proof of “intent to evade” either from the show cause notice or from the grounds of appeals of revenue in the present matter. The department nowhere allege that respondent had deliberately interpreted the Exemption Notification and its clause in a wrongly manner with intent to evade payment of Service tax. In the instant case, there are no wilful or deliberate suppression of the fact with intent to evade payment of service tax. It is opined that whether the respondent is entitled for the benefit of the exemption notification or not depends on the interpretation of the exemption notification and on the contrary, to a very large extent, their interpretation is found correct. Thus, it is evident that there is not even an iota of evidence to even suggest that there was any willful misstatement or suppression of facts on the part of the Respondent. Consequently, extended period is not invokable in this case.
The impugned order is upheld. Revenue's appeal is dismissed.
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2024 (2) TMI 1185
Maintainability of appeal - all the issue related to question of fact - Clandestine removal - Whether CESTAT has erred in not appreciating the suppression of production arisen on calculating annual electricity consumption which shows that there was excess production of excisable goods as compared to the productions reflected in their statutory records?
HELD THAT:- All the questions which the appellant has raised in the present appeal, are essentially questions of fact and there is no question of law as such which is required to be adjudicated by this Court.
Taking into consideration the concurrent findings of fact, this appeal need not be entertained.
The appeal stands dismissed.
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2024 (2) TMI 1184
Exemption from payment of property tax under the provisions of the UP Municipal Corporation Adhiniyam, 1959 - Whether statutory vesting of property termed as enemy property under the provisions of the Enemy Property Act, 1968 amounts to expropriation which leads to the change of its status inasmuch as its ownership is transferred to the Union of India?
HELD THAT:- Following conclusion have been arrived at:
1) That the Custodian for Enemy Property in India, in whom the enemy properties vest including the subject property, does not acquire ownership of the said properties. The enemy properties vest in the Custodian as a trustee only for the management and administration of such properties.
2) That the Central Government may, on a reference or complaint or on its own motion initiate a process of divestment of enemy property vested in the Custodian to the owner thereof or to such other person vide Rule 15 of the Rules. Hence, the vesting of the enemy property in the Custodian is only as a temporary measure and he acts as a trustee of the said properties.
3) That in view of the above conclusion, Union of India cannot assume ownership of the enemy properties once the said property is vested in the Custodian. This is because, there is no transfer of ownership from the owner of the enemy property to the Custodian and consequently, there is no ownership rights transferred to the Union of India. Therefore, the enemy properties which vest in the Custodian are not Union properties.
4) As the enemy properties are not Union properties, clause (1) of Article 285 does not apply to enemy properties. Clause (2) of Article 285 is an exception to clause (1) and would apply only if the enemy properties are Union properties and not otherwise.
5) In view of the above, the High Court was not right in holding that the respondent as occupier of the subject property, is not liable to pay any property tax or other local taxes to the appellant. In the result, the impugned order of the High Court dated 29.03.2017 passed in Misc. Bench No.2317 of 2012 is liable to be set aside and is accordingly set aside.
6) Consequently, any demand for payment of taxes under the Act of 1959 made and thereby paid by the respondent to the appellant-authority shall not be refunded. However, if no demand notices have been issued till date, the same shall not be issued but from the current fiscal year onwards (2024-2025), the appellant shall be entitled to levy and collect the property tax as well as water tax and sewerage charges and any other local taxes in accordance with law.
Appeal allowed.
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2024 (2) TMI 1183
Jurisdiction of Superintendent to pass the order - Monetary limit - jurisdiction to various authorities in relation to the maximum amount of Central Tax not paid or short paid or erroneously refunded or input tax credit of central tax wrongly availed or utilized - HELD THAT:- It is stated that according to the circular dated 09.02.2018, power of the Superintendent, Central Goods and Service Tax & Central Excise is limited to the matter not exceeding Rs. 10,00,000/- and in the present case the amount involved is more than Rs. 16,00,000/- and consequently, the impugned order passed by it is without jurisdiction.
Evidently the impugned order dated 20.11.2023, as contained in Annexure No.1 to the writ petition, is without jurisdiction and is accordingly set aside. Liberty is granted to the respondents to proceed afresh in accordance with law.
Petition allowed.
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2024 (2) TMI 1182
Validity of assessment order - proceedings were initiated against the petitioner by issuing an intimation and show cause notice - exercise of discretionary jurisdiction - HELD THAT:- The assessing officer had dropped proceedings in respect of the tax liability arising out of alleged discrepancy between the GSTR-1 and GSTR-3B returns and RCM on inward supply, whereas the revenue abstract at the foot of the order specifies liability in respect of these heads. Thus, the impugned assessment order suffers from non application of mind resulting in patent errors. For such reason, the impugned assessment order warrants interference.
The impugned assessment order is quashed and the matter is remanded for re-consideration. The respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh assessment order within a maximum period of two months from the date of receipt of a copy of this order.
Petition allowed by way of remand.
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2024 (2) TMI 1181
Levy of penalty - e-way bill had expired four days prior to the date of detention - existence of mens rea - HELD THAT:- This Court in M/S. HINDUSTAN HERBAL COSMETICS VERSUS STATE OF U.P. AND 2 OTHERS [2024 (1) TMI 282 - ALLAHABAD HIGH COURT] held that mens rea to evade tax is essential for imposition of penalty. The factual aspect in the present case clearly does not indicate any mens rea whatsoever for evasion of tax. The goods were accompanied by the relevant documents and the explanation of the petitioner with regard to slow movement of the goods coupled with GPS tracking system clearly indicate that the truck was moving slowly due to mechanical fault in the engine of the vehicle. This factual aspect should be considered by the authorities below. The breach committed by the petitioner with respect to not extending time period of the e-way bill is only a technical breach and it cannot be the sole ground for penalty order being passed under Section 129(3) of Act.
The finding of the authorities with regard to intention to evade tax is not supported by the factual matrix of the case, and accordingly, the impugned orders dated April 6, 2022 and June 22, 2022 are quashed and set aside - This Court directs the respondents to refund the amount of tax and penalty deposited by the petitioner within a period of four weeks from date.
Petition allowed.
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2024 (2) TMI 1180
Violation of principles of natural justice - further opportunity of hearing not provided - ex-parte order - HELD THAT:- Whatever be the correct fact as to the status of proceedings conducted on 06.11.2023, the order does not make any mention of the same. It is equally true that the assessing authority did not pass any order on the date fixed i.e. 06.11.2023. Instead he has chosen to pass the order on 20.11.2023, 14 days thereafter. Neither the impugned order nor the instructions of the learned Standing Counsel indicate that any date was fixed for 20.11.2023. Without fixing any further date and without giving petitioner any further opportunity the impugned order has been passed.
Rules of natural justice ensure fairness in proceedings. Once the authority had fixed the matter for hearing on 06.11.2023 it was incumbent on that authority either to pass the order or to fix another date and communicate the same to the petitioner. Communication of the other date was necessary as according to the assessing authority the petitioner failed to appear before it on the date fixed on 06.11.2023 - In absence of any provision under the Act to allow for ex-parte proceedings to arise in such facts, it is found that the breach of natural justice pressed by the petitioner is real.
The short time of five days granted by the notice dated 13.06.2023 itself suggests the unnecessary hurry in which the proceedings were sought to be concluded. In any case since no order was passed on 06.11.2023 and no notice was issued for the next date 20.11.2023, we find that the proceedings had been wrongly concluded ex-parte against the petitioner.
The order dated 20.11.2023 is set aside. The petitioner may treat the said order to be the final notice issued to him. It may file its reply together with all supporting documents within a period of two weeks from today - petition disposed off.
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2024 (2) TMI 1179
Cancellation of registration has been passed without any application of mind - time limitation - 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 order in original dated December 22, 2022 and the appellate order dated December 27, 2023 are quashed and set aside - Petition allowed.
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2024 (2) TMI 1178
Cancellation of GST registration of the Petitioner with retrospective effect - Death of the assessee - Refund of the amount standing to the credit of the predecessor / assessee - failure to furnish returns for a continuous period of six months - SCN fails to specify any cogent reason for cancellation - violation of principles of natural justice - HELD THAT:- In terms of Section 29(2) of the Act, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, it is not considered apposite to examine this aspect but assuming that the respondent’s contention in required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer's registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
In view of the above facts that Petitioner does not seek to carry on business or continue with the registration, the impugned order dated 14.03.2023 is modified to the limited extent that registration shall now be treated as cancelled with effect from 15.08.2021 i.e., the date when Sh. Pawan Kumar passed away. Petitioner shall furnish the details as required by Section 29 of the Act.
Petition disposed off.
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2024 (2) TMI 1177
Cancellation of GST registration of the petitioner with retrospective effect - show cause notice is ex facie defective as the same does not contain any details or quantum of wrongful availment of Input Tax Credit or any refund claimed on the said account or reasons - violation of principles of natural justice - HELD THAT:- In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period - Thus, a taxpayer’s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
It is clear that both the petitioner and the respondent want the GST registration to be cancelled, though for different reasons.
The order of cancellation is modified to the extent that the same shall operate with effect from 01.02.2021, i.e., the date on which the petitioner discontinued business - Petition disposed off.
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2024 (2) TMI 1176
Availment of wrongful input tax credit - case of petitioner is that he had applied for cancellation of his DVAT Act Registration and never applied for migration to the GST Scheme - HELD THAT:- Respondent No.3 prays for some more time to take instructions. Respondent No.3 shall place on record the documents and material available in their record with regard to the alleged migration of the petitioner from DVAT to GST Scheme.
At request, list on 21.02.2024. In the meantime further proceedings on the Show Cause Notice shall remain stayed.
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2024 (2) TMI 1175
Rectification of DRC-3 - Entitlement to concessional rate of tax without ITC for new projects and unsold units of existing projects post 1st April 2019 - requirement to reverse ITC, in terms of the said Notification No. 3/2019, pertaining to unsold units as on 31st March 2019 as per Rule 42 of the CGST Rules - it is the case of Petitioner No. 1 that it would be immaterial as to for which period Petitioner No. 1 had reversed the ITC or made payment of GST for such ITC utilised on unsold units as on 31st March 2019 - HELD THAT:- Petitioner No. 1 has made a bona fide mistake in Form DRC 03 dated 26th August 2022 and 1st September 2022. Petitioner No. 1 had inadvertently shown the year as Financial Year 2019-20 instead of Financial Year 2018-19. As correctly submitted by Petitioner No. 1, the fact, that the there was a bona fide mistake, was clear from the narration in the said Form DRC 03. Further, as rightly submitted by Petitioner No. 1, in Financial Year 2019-2020, Petitioner No. 1 was not entitled to avail of any ITC and had not availed of any ITC, and, consequently, there was no question of ITC for Financial Year 2019-20 being reversed by Petitioner No. 1.
The Division Bench of this Court, in STAR ENGINEERS (I) PVT. LTD. VERSUS UNION OF INDIA, STATE OF MAHARASHTRA AND DEPUTY COMMISSIONER OF STATE TAX-GST [2023 (12) TMI 729 - BOMBAY HIGH COURT], has held that a bona fide inadvertent error in furnishing details in a GST return need to be recognised, and ought to be permitted to be corrected by the Department, when, in such cases, the Department is aware that there is no loss of revenue to the Government. This Court further held that such free play in the joints requires an eminent recognition and that the Department needs to avoid unwarranted litigation on such issues, and make the system more assessee friendly.
Applying the ratio of the aforesaid judgment, in the present case also, since the error made by the Petitioner No. 1 is a bona fide error, the Department is required to be directed to permit Petitioner No. 1 to rectify the said error. In these circumstances, there are no doubt that this Petition is required to be allowed - petition allowed.
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2024 (2) TMI 1174
Cancellation of GST registration - non-furnishing of returns in compliance of the provisions of Section 39 of the CGST Act, 2017 for a continuous period of 6 [six] or more months - HELD THAT:- The GST registration of the petitioner has been cancelled under Section 29[2][c] of the CGST Act, 2017 for the reason that the petitioner did not submit returns for a period of 6 [six] months and more; the provisions contained in Rule 22 of the CGST Rules, 2017 which provides that if a noticee receiving a notice under Rule 22[1], furnishes all the pending returns and makes full payment of the tax dues, along with applicable interest and late fee, the proper officer is required to drop the proceedings; the undertaking given on behalf of the petitioner that he is ready and willing to comply such terms; and the orders passed by the coordinate benches of this Court as well as by this Court in similar matters whereby the writ petitions have been disposed of with a direction to the respondent authorities to revoke the cancellation of registration upon due payment of all statutory dues payable by the petitioners therein; this Court is of the considered view that no purpose will be served by keeping this writ petition pending and the present writ petition can be disposed of in similar terms, as had been passed in similar writ petitions.
The petitioner is directed to approach the concerned authority within a period of 1 [one] month from today, seeking revocation of cancellation and restoration of his GST registration. On such approach by the petitioner, the concerned authority will intimate the petitioner the total outstanding statutory dues, if any, standing in the name of the petitioner till the date of cancellation of registration and any other outstanding dues under the GST Act required to be paid by the petitioner.
The impugned Order is hereby interfered with and set aside - Petition allowed.
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2024 (2) TMI 1173
Condonation of delay in filing an appeal before the Appellate Authority - Assessment of unregistered person - Ignoring the Registration Certificate already assigned - Benefit of notification extended to the assessees who suffered with demand as a result of assessment under Section 73 and Section 74 of the GST Act. But despite the fact that the petitioner is a registered and has been assessed under Section 63 of the GST Act by way of erroneous exercise of jurisdiction, such benefit would not be extended to the petitioner. - HELD THAT:- There is patent error of jurisdictional fact as revealed from the records available. The Registration Certificate (Original as also Amended) granted with effect from 01.07.2017 much prior to issue of notice under Section 63 and the Assessment Order dated 29.03.2023 passed under Section 74 of the GST Act evince that the Assessing Authority was well aware of the fact that the petitioner does not fall within the scope of the expression “where a taxable person fails to obtain registration even though liable to do so” employed in Section 63, so as to invoke power to proceed with the assessment thereunder. This apart, it is not denied that the Assessing Authority is not authorized or competent to verify the status of the petitioner.
In view of settled legal position as set forth by way of enunciation of different Courts, this Court is inclined to issue writ of certiorari.
In TRIMBAK GANGADHAR TELANG VERSUS RAMCHANDRA GANESH BHIDE [1977 (1) TMI 161 - SUPREME COURT] the Hon’ble Supreme Court held that It is a well-settled rule of practice of this Court not to interfere with the exercise of discretionary power under articles 226 and 227 of the Constitution merely because two views are possible on the facts of a case.
Article 226 of the Constitution of India preserves to the High Court power to issue writ of certiorari amongst others. The principles on which the writ of certiorari is issued are well-settled.
This Court is of the considered view that the Order dated 09.08.2023 passed in Appeal bearing No. AD210223003708N by the Additional Commissioner of State Tax (Appeal), Central Zone-II, Odisha, is liable to be set aside - the matter is remitted to the Additional Commissioner of State Tax (Appeal), Central Zone-II, Odisha at Cuttack, for adjudication in accordance with law after due compliance of the principles of natural justice - Petition allowed by way of remand.
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2024 (2) TMI 1172
Recovery made from the petitioner in the matter of demand under various assessments - HELD THAT:- As taking into consideration the peculiar circumstances of the present case that the appeals are pending since 2016 and 2019 and recoveries have been made long back, instead of keeping this petition pending, in exercise of our discretionary jurisdiction, we are inclined to dispose off this petition with a direction to the respondent to decide the pending appeals within an outer limit of three months from the date of receipt of copy of this order.
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