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Showing 161 to 180 of 1445 Records
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2024 (3) TMI 1285
Classification of services - Business Auxiliary Services (BAS) or Goods Transport Agency Services (GTA) - extra amount collected from the clients over and above the amounts actually paid to the vehicle owners on back-to-back basis - HELD THAT:- The undisputed fact in the present case is that the appellant renders service of transporting goods of their customers in exchange for a ‘consideration’ and for this purpose, the appellant hires vehicles from third party owners under the agreement. Further, the appellant’s customers are not privy to the agreement for hiring vehicles and the ‘Margin Money’ collected and retained by the appellant is nothing but the surplus of transportation income, over and above the hire charges paid, on which service tax is paid after availment of 75% abatement.
In the appellant’s own case M/S. ASPINWALL & CO. LTD. VERSUS COMMISSIONER OF GST & CENTRAL EXCISE TIRUNELVELI [2019 (4) TMI 182 - CESTAT CHENNAI] for the previous period, this Tribunal allowed the appeal of the appellant by holding On perusal of the order as well as records, we do not find any element that would attract the activity or the amount collected by the appellant in relation to hiring of vehicles or transportation of goods to be falling under BAS.
The impugned order is not sustainable in law and the same is set aside - appeal allowed.
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2024 (3) TMI 1284
CENVAT Credit - input services - erection and commissioning of machines carried out in China and Italy based on invoices / debit notes raised by M/s.Voltas Ltd., Coimbatore - HELD THAT:- The appellant has availed credit in regard to services only upto 01.04.2011. As rightly argued by the learned counsel for appellant that during the period prior to 01.04.2011, the definition of ‘input services’ was wide enough as it included the words “activities relating to business”. Undeniably, the services are related to the business of manufacture of the appellant. For this sole reason, the appellant is eligible for credit. Further, as argued by the appellant, the erection and commissioning has been outsourced by appellant through M/s.Voltas Ltd., Coimbatore. The agreement between the appellant as well as the foreign buyer shows that the appellant has to do erection and commissioning of the machines sold at the buyer’s premises. Therefore, the cost incurred by the appellant to M/s.Voltas Ltd. has gone into the cost of the machines sold/exported by the appellant.
For this reason also, the appellant is eligible for credit - the denial of credit is not justified - impugned order is set aside - Appeal allowed.
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2024 (3) TMI 1283
Levy of service tax - collection of excess amount from customers over and above the actual ocean freight paid to the shipping lines - period from April 2012 to September 2012 - HELD THAT:- The Adjudicating Authority has considered in Paragraphs 10.4 and 10.5 that the amount collected during the course of providing the Steamer Agent Service is subject to levy of Service Tax. However, he has not stated under which category and how this amount is an excess amount collected as freight would be consideration and the appellant has paid the Service Tax on the commission received as Steamer Agent. The amount collected is some excess of ocean freight as they were not able to quantify the exact freight to be paid to shipping lines. The ocean freight cannot be subjected to levy of Service Tax as it is not a consideration for Steamer Agency Services. The Department itself admits that these are amounts collected in excess of ocean freight. There is no provision for levy of Service Tax on ocean freight.
Further, as per the decision in the case of MESSRS SAL STEEL LTD. & 1 OTHER (S) VERSUS UNION OF INDIA [2019 (9) TMI 1315 - GUJARAT HIGH COURT], the Hon’ble High Court has held that the demand of Service Tax on ocean freight cannot sustain.
It is found that though Department alleges that the appellant has collected excess amount towards freight, the Show Cause Notice does not say as to which category of service the said amount would be liable to Service Tax. So also, it is not stated whether the amount is consideration for Steamer Agency Service. The Show Cause Notice does not propose to include the amount under particular category of service and demand the Service Tax under any category. The Adjudicating Authority has not made any finding as to whether the excess amount collected would be consideration for service. The Show Cause Notice is the foundation of the litigation. When the Show Cause is insufficient as to clarify the category of service, the demand cannot sustain and requires to be set aside.
The impugned order is set aside - The appeal is allowed
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2024 (3) TMI 1282
Service or not - levy of service tax - collection of liquidated damages for supply of goods and services beyond the due date as per the agreement entered into with various suppliers and service providers - HELD THAT:- The issue is squarely covered by the judgement of the Principal Bench of this Tribunal in appellant’s own case for Bhopal / Dehradun Unit. Referring to the earlier judgment of the Tribunal on the same issue, it is observed The amount cannot be made liable to tax in the name of it being consideration for providing deemed service.
The judgment have been accepted by the Board vide Circular No.214/2023-S.T. dated 28.02.2023.
The impugned order is set aside and the appeal is allowed.
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2024 (3) TMI 1281
Levy of service tax - Life Insurance Service - premium collected by the appellant for providing life insurance service to its employees - Renting of Immovable Property Service or not - amount received towards renting of immovable property - HELD THAT:- Undisputedly, the appellant is a department of Karnataka State Government and not an insurance company and in pursuance to the Karnataka Government Servant’s (Compulsory Life Insurance) Rules, 1958 under the welfare scheme applicable to all Government employees irrespective of their status, collected contribution of 6.5% of mean pay as monthly premium towards the policy. The Service Tax Department proposed to levy service tax on the premium so collected by the appellant. On the said issue, this Tribunal in appellant own case, considering the Circular dt. 18/12/2006 issued by the Board, held that the amount of premium collected in rendering life insurance service is in the nature of sovereign function and not leviable to service tax - there are no reason not to follow the aforesaid finding of the Tribunal as no contrary decisions have been placed by the Revenue.
Levy of service tax on renting of immovable property - HELD THAT:- The appellant is not contesting the same and also covered by the judgment of the Hon’ble Supreme Court in the case of KRISHI UPAJ MANDI SAMITI, NEW MANDI YARD, ALWAR VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, ALWAR [2022 (2) TMI 1113 - SUPREME COURT]. Since the issue relates to interpretation of law relating to applicability of service tax on ‘Renting of Immovable Property Service’ during the period in question and conflicting opinions on the subject expressed, levy of penalty for non-payment of service tax on the said service cannot be sustained.
The demands relating to service tax on life insurance service provided to the employees are hereby dropped and service tax on renting of immovable property in both the appeals are confirmed with interest. However, penalties imposed for failure to discharge service tax on renting of immovable property are hereby dropped. The impugned orders are modified - Appeal disposed off.
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2024 (3) TMI 1280
Demand of service tax - SSI exemption - Construction of boundary and main gate at the sub-station at Dhaka and Gopalganj - time limitation - demand alongwith interest and penalty - HELD THAT:- The impugned order has confirmed the demand of service tax of Rs.78,341/- on the amount of Rs.21,60,967/- received by the Appellant from PGCIL. Out of this Rs.14,78,589/- was shown to have been received by the Appellant on 10.05.2008, but the Appellant submitted that this amount has been received on various dates in the year 2004-05 - the submission of the Appellant is agreed upon, that the amount of Rs.14,78,589/- was not received on 10.05.2008, but on various dates in the year 2004-05. Hence, the Notice issued on 30.09.2011 demanding service tax on these amounts received in 2004-05 is barred by limitation. Accordingly, the demand confirmed on this amount is set aside.
It is observed that the amount of Rs.1,27,505/- and Rs. 2,05,234/-, totally amounting to Rs. 3,32,739/-, was received by the Appellant in the Financial Year 2006-07 and the amount of Rs.3,49,639/- was received in the Financial Year 2007-08. In both the Financial years 2006-07 and 2007-08, their turnover was below the threshold limit of Rs.10 lakhs. Accordingly, no service tax is payable by the Appellant on these receipts.
Interest and penalty - HELD THAT:- The demand of service tax confirmed in the impugned order is not sustainable. Since the demand of service tax is not sustainable, the question of demanding interest and penalties under sections 77 and 78 does not arise.
The impugned order set aside - appeal allowed.
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2024 (3) TMI 1279
Valuation - it is alleged that appellant is receiving Nutrient Based Subsidy, treating the same as additional consideration and thus form part of the assessable for the levy of Central Excise Duty - suppression of facts or not - HELD THAT:- The issue is covered in favour of appellant in the case of COMMISSIONER OF CENTRAL EXCISE, BANGALORE VERSUS MAZAGON DOCK LTD. [2005 (7) TMI 105 - SUPREME COURT] and M/S CORAMANDEL INTERNATIONAL LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, VISAKHAPATNAM-I [2014 (8) TMI 775 - CESTAT BANGALORE] where it was held that Subsidy paid by the Government cannot be considered as an additional consideration includable for excise duty in accordance with statute.
As the issue is apparently covered in the favour of the appellant in view of the precedent rulings, the impugned order is set aside - this appeal is allowed.
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2024 (3) TMI 1278
Cancellation of allotment of land on the basis of an alleged false affidavit - whether the petitioner had submitted a bona fide and genuine affidavit at the time of submission of his application seeking allotment of alternate plot of land in lieu of the compulsory land acquisition of his property? - HELD THAT:- The Allahabad High Court in IN RE : RAM KUMAR RAMNIWAS OF NANPARA [1952 (8) TMI 32 - HIGH COURT OF ALLAHABAD] had held that the HUF is not like a corporation or a limited concern and it cannot, therefore, be said that it had a legal entity quite distinct and separate from that of those who constituted it. It further observed that HUF is a status which can only be acquired by birth or adoption and the head or karta of that family has certain rights by which he can bind every member of the family though, the property may not belong to him and belongs to all. In another words, it appears to this Court that though the HUF may be a legal entity for the purposes of Income Tax and may hold a property in its own name, yet it cannot be said that the individual members constituting it, do not have any share in the said property. The share in such property on devolution may change or vary in proportions with the increase or decrease in the members constituting the HUF. This surely cannot mean that the individual members do not have any rights whatsoever over the HUF property.
It is clear that the HUF under the Income Tax Act, 1961 is a juridical person. However, the right or entitlement of the individual members constituting such HUF in respect of any property owned by it, has also been accepted. The role of karta in respect of such property is also clearly delineated - All the analysis leads this Court to the firm conclusion that the property belonging to the HUF also belongs to each of the individual constituents in the proportionate share. In another words, every member of the HUF has some share in the said property.
Thus, it is clear that though the Defence Colony Property was placed in the common hotchpotch of the HUF in the year 1962, yet the shares of the petitioner as also his wife and two minor children, as they then were, in the said property cannot be undisputed. As to what were the proportion of shares, is irrelevant to consider in the present dispute - this Court needs to examine as to whether the petitioner can now be said to have violated the eligibility conditions at the time of filing the affidavit in support of the application for allotment of alternate plot of land.
As on that date, not only the petitioner but also the family members, who individually constituted the HUF had a proportionate share in the Defence Colony Property. This fact was not disclosed. In the considered view of this Court, this was a concealment of material fact, which would have otherwise disentitled the petitioner from allotment of alternate plot of land as per the 1961 Scheme - The argument that the petitioner had thrown the self-acquired Defence Colony Property in the common hotchpotch of the HUF in the year 1962 even before the compulsory acquisition of his lands in the year 1964, and as such, had not committed any concealment is concerned, the same is recorded only to be rejected. The said rejection is on the basis of the aforesaid reasons in the preceding paragraphs, holding that each of the individual members of the HUF had proportionate share in such property.
The sanctity of the declaration and solemn affirmation was to be maintained at all times. In case an applicant furnished a false declaration or concealed material facts, it would be direct violation/contravention of mandatory condition of allotment. Since the petitioner had not disclosed the existence of a HUF property of which the petitioner himself was the karta and his wife and two minor children were the remaining members, in the considered opinion of this Court, that sanctity was broken.
Though the Defence Colony property was claimed to have been thrown in the common hotchpotch of the HUF in the year 1962, there was no reason furnished by the petitioner as to why the mutation of the said property in the name of HUF was not applied for till the month of January, 1979 which was finally carried out by the authority on 26.10.1979. Admittedly, the said property was leased out on rent indicating that the petitioner was not in dire need of an alternate plot of land.
There is no doubt that there was a delay however, keeping in view the ratio down by the Supreme Court in SP CHENGALVARAYA NAIDU VERSUS JAGANNATH [1993 (10) TMI 315 - SUPREME COURT], whereby it was categorically laid down that ‘fraud vitiates all solemn acts’. On the strength of this, this Court is of the considered opinion that the petitioner had obtained the allotment of an alternate plot by concealment of material facts amounting to fraud and as such cannot be heard to say that the respondents have delayed adjudication of the show cause notice. In that view of the matter, the said argument has no substance.
There is no merit in the writ petition and the same is dismissed.
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2024 (3) TMI 1277
Jurisdiction to issue SCN - Levy of penalty equivalent to the tax - wrongful utilization of Input Tax Credit - Section 122(1A) and Section 137 of the CGST Act - whether the invocation of the provisions of Section 122 (1-A) of the CGST Act as also Section 137(1) and 137(2) would stand attracted in their applicability to the petitioner, so as to confer jurisdiction on respondent no. 3, to issue the impugned show cause notice against the petitioner, who is merely an employee of MLIPL and a power of attorney of Maersk? - HELD THAT:- A plain reading of section 122 clearly implies that it provides for levy of penalty for “certain offences” by taxable person. Such taxable person would render himself liable for a penalty for acts provided in clauses (i) to (xxi) of sub-section (1). Insofar as sub-section (1-A) of Section 122 is concerned, it provides that any person (who would necessarily be a taxable person), retains the benefit of the transactions covered under clauses (i), (ii), (vii) or clause (ix) of sub-section (1), and at whose instance, such transaction is conducted, “shall be liable to a penalty of an amount equal to the tax evaded or input tax credit availed of or passed on”. This necessarily implies that sub-section (1-A) applies to a taxable person, as it specifically speaks about the applicability of the provisions of clauses (i), (ii), (vii) or clause (ix) of sub-section (1), with a further emphasis added by the words - This clearly depicts the intention of the legislature that a person who would fall within the purview of sub-section(1-A) of Section 122 is necessarily a taxable person as defined under section 2(107) of the CGST Act read with the provisions of section 2( 94) of the CGST Act and a person who retains the benefits of transactions covered under clauses (i), (ii), (vii) or clause (ix) of sub-section (1) of Section 122.
Section 122 (1-A) also cannot be attracted qua the person, in a situation when any person does not retain the benefit of a transaction covered under clauses (i), (ii), (vii) or clause (ix) of sub-section (1) and/or it is applicable at whose instance such transactions are conducted, could be the only person, who shall be liable to a penalty of an amount equivalent to the tax evaded or input tax credit, wrongly availed of or passed on.
There is no material to support that any of the ingredients as specified in sub-section (1-A) of Section 122 would stand attracted so as to confer jurisdiction on respondent no. 3 to adjudicate any allegations/charges as made under sub-section (1-A) of Section 122. This is abundantly clear from the bare contents of paragraphs 20 and 5.19.1 of the show cause notice.
It is clear from the relevant contents of the show cause notice that the basic jurisdictional requirements / ingredients, are not attracted for issuance of the show cause notice under Section 74 of the CGST Act so as to inter alia invoke Section 122 (1-A) and Section 137 against the petitioner. Even otherwise, it is ill-conceivable to read and recognize into the provisions of Section 122 and Section 137, of the CGST Act any principle of vicarious liability being attracted. There could be none. Thus, Respondent no. 3 clearly lacks jurisdiction to adjudicate the show cause notice in its applicability to the petitioner. Thus qua the petitioner, the impugned show cause notice is rendered bad and illegal, deserving it to be quashed and set aside.
It is highly unconscionable and disproportionate for the concerned officer of the Revenue to demand from the petitioner an amount of Rs. 3731 crores, which in fact is clearly alleged to be the liability of Maersk, as the contents of the show cause notice itself would demonstrate. The petitioner would not be incorrect in contending that the purpose of issuing the show cause notice to the petitioner who is merely an employee, was designed to threaten and pressurize the petitioner.
Petition allowed.
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2024 (3) TMI 1276
Imposition of GST on trade payables - challenge on the ground that the impugned order travelled beyond the scope of the show cause notice and the entire trade payables of the petitioner were subject to GST - Violation of principles of natural justice - HELD THAT:- It appears that the petitioner operates across India and the total trade payables were taken by the respondents from the financial statements of the petitioner. In the reply to the show cause notice, the petitioner had explained that the statutory requirements with regard to availment of ITC had been fulfilled by making payments for goods or services received by the petitioner within the time limit specified in that regard. The petitioner also adverted to returns filed in Form GSTR 1 and GSTR 3B in that regard - the conclusion in the impugned order that GST is payable on the total taxable supply as per the financial statements of the petitioner appears prima facie to be untenable.
Since it was concluded earlier that the findings with regard to imposition of GST on trade payables by treating the total tax payables as taxable supplies is prima facie untenable, the petitioner shall remit 10% of the disputed tax demand pertaining to all the other heads of demand under the impugned order as a condition for remand.
The impugned order is quashed subject to the condition that the petitioner remits 10% of the disputed tax demand under all heads, except trade payables, within two weeks from the date of receipt of a copy of this order - Petition disposed off.
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2024 (3) TMI 1275
Disregard to petitioner's reply to the intimation - it is alleged that the petitioner had not submitted documents to establish the movement of goods - HELD THAT:- The reply dated 07.05.2023 of the petitioner is on record. In such reply, the petitioner refuted the liability and enclosed copies of the invoice, weighment slips, e-way bills, ledger copy and payment details relating to the relevant supplies. The petitioner also placed on record the evidence that the said reply was uploaded along with attachments.
The impugned order is quashed and the matter is remanded to the respondent for reconsideration. The petitioner is permitted to file a reply to the show cause notice dated 14.06.2023 within a period of 15 days from the date of receipt of a copy of this order by annexing all relevant documents once again.
Petition disposed off.
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2024 (3) TMI 1274
Validity of garnishee orders - shortfall in amount to fulfil the entire pre-deposit requirement of 30% of the disputed tax demand - HELD THAT:- As regards amounts payable as per the order in original, the documents on record disclose that the entire tax liability was discharged and all that remains is interest and penalty. As regards the order in original corresponding to W.P.No.8178 of 2024, an aggregate sum of Rs. 1,87,374/- has been remitted towards the disputed tax demand leaving a balance of Rs. 1,72,989/- to fulfil the 30% pre-deposit requirement under Section 112(8) of applicable GST enactments. If 30% of the disputed tax demand is remitted, the statute provides for a stay of any recovery or coercive action until the statutory appeal is disposed of.
The petitioner is directed to deposit a sum of Rs. 1,72,989/- towards fulfilment of pre-deposit requirements in terms of Section 112(8) of applicable GST enactments. Such remittance shall be made within a maximum period of two (2) days from the date of receipt of a copy of this order - Petition disposed off.
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2024 (3) TMI 1273
Quantum of penalty - Demand of penalty at the higher rate being 100 percent of the value of the goods under Section 129(1)(b) of the U.P. G.S.T. Act, 2017 - HELD THAT:- On query made, learned counsel for the revenue has made a fair statement, it cannot be doubted, the petitioner is the bona-fide owner of the goods.
Accordingly, the penalty order is modified to the extent penalty imposed. Quantum is reduced in terms of provisions of Section 129(1)(a) of the Act i.e. equal to twice the amount of tax imposed on the value of the goods, as estimated by the revenue authorities.
The writ petition stands disposed of.
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2024 (3) TMI 1272
Short payment of GST on unreconciled sales turnover - non-reversal of Input Tax Credit (ITC) on account of rejection - reversal of ITC as regards the disparity between the GSTR 3B and GSTR 2A returns - short payment of GST on unreconciled sales turnover as declared in Form GSTR 3B - non reversal of ITC on account of rejection of goods received as inputs - HELD THAT:- The impugned order warrants interference albeit by putting the petitioner on terms. By taking note of the heads of tax demand in the impugned order and the submissions made in respect thereof, it is found that a liability of Rs. 64,34,49,053/- was imposed merely on the finding that the petitioner was lethargic in rectifying the error committed while filing the GSTR 3B returns. If this amount is excluded and some allowance is made for the ITC reversal against the head relating to excess availment of ITC, the remittance of a sum of Rs. 5 crore as a condition for remand would safeguard revenue interest pending adjudication of remanded proceedings since it would be equivalent to approximately 10% of the remaining disputed tax demand.
The impugned order dated 21.12.2023 is quashed and the matter is remanded for reconsideration subject to the condition that the petitioner remits a sum of Rs. 5 crore towards the disputed tax demand within a period of three weeks from the date of receipt of a copy of this order. Subject to being satisfied that the said sum of Rs. 5 crore was received, the assessing officer is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within three months from the date of receipt of the above amount.
Petition disposed off.
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2024 (3) TMI 1271
Exemption from GST - hostel and residential accommodation extended by the the Applicant hostel - specific tariff entry is applicable to hostels under the Tariff Notification, in the event of requirement of registration - in the event of the hostel accommodation being an exempt activity, whether the incidental activity of supply of in-house food to the inmates of the hostel would also be exempt being in the nature of a composite exempt supply or not - applicability of decision in the case of Taghar Vasudeva Ambrish -vs- Appellate Authority for Advanced Ruling, Karnataka [2022 (2) TMI 780 - KARNATAKA HIGH COURT] - Entry 12 of Exemption Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 dated 28.06.2017.
HELD THAT:- In the present case, it is not in dispute that the inmates of the respective hostels run by the petitioners are the girl students and the working women who are not registered persons and using the premises as their residence, for which, they are paying fee, which can be termed as rent and it is not the case of the respondents that the inmates are carrying on any commercial activities in the rented premises or using the same for commercial purpose. That apart, the inmates of the room also using the common kitchen and sharing the foods as their own. Admittedly, GST is not applicable if a residential property is rented out to any persons in their personal capacity and for use as their own residence.
The hostel rooms are the residential dwelling units for the girl student and working women, etc. The residential dwelling varies from person to person. As far as the homeless people are concerned, the residential dwelling will be wherever they are residing such as public roads, streets or in any other places and except the same, no other places can be provided, unless and otherwise if the Government has accommodated those people in a home, where they are maintaining the same for homeless. Therefore, when for the homeless persons, the residential dwelling will be the places wherever they are residing, where, even they do not have cooking, washing and toilet, etc., facilities by itself it does not mean that their place is not a residential dwelling - Merely because the persons are staying in hostel rooms due to their financial condition, the same will not take away the status of the said hostel room as residential dwelling for the inmates of the room, because after their avocation, they have been staying, sleeping, eating, washing, etc in the hostel rooms alone.
This Court is of the considered view that the 'hostel services' provided by the petitioners to the girl students and working women will squarely amount to the 'residential dwelling' and accordingly, the same will be squarely covered under the Entry No.12 of Exemption Notification No.12 of 2017.
The Hon'ble Supreme Court, in the case of Collector of Central Excise v. Parle Exports (P) Ltd., [1988 (11) TMI 108 - SUPREME COURT] has suggested that in interpreting the scope of any notification, the authority has first to keep in mind the object and purpose of the notification and all parts of it should be read harmoniously in aid of, and not in derogation, of that purpose.
In the present case, the imposition of GST on the Hostel accommodation should be viewed from the perspective of the recipient of service and not from the perspective of service provider. However, the 2nd respondent has dealt with the entire issue as if GST is going to be imposed on the revenue of the service provider and he is going to pay the same from and out of his pocket - the imposition of GST is only on the recipient of service and the GST is going to be collected only from the recipient of the service and not from the service provider. As far as service provider is concerned, he is collecting the GST from the recipient of the service and making deposit with the Central Government.
Imposition of GST on hostel accommodation - HELD THAT:- In order to claim exemption of GST, the nature of the end-use should be 'residential' and it cannot be decided by the nature of the property or the nature of the business of the service provider, but by the purpose for which it is used i.e. 'resident dwelling' which is exempted from GST. Therefore, this Court is of the considered view that the issue of levy of GST on residential accommodation should be viewed from the perspective of recipient of service and not from the perspective of service provider, who offers the premises on rental basis.
Thus, the renting out the hostel rooms to the girl students and working women by the petitioners is exclusively for residential purpose, this Court is of the considered view that the condition prescribed in the Notification in order to claim exemption, viz., 'residential dwelling for use as residence' has been fulfilled by the petitioners and thus the said services are covered under Entry Nos.12 and 14 of the Notification No. 12/2017-Central Tax (Rate) dated June 28, 2017, the petitioners are entitled to be exempted from levy of GST.
The impugned orders passed by the 2nd respondent are hereby set aside - Petition allowed.
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2024 (3) TMI 1270
Refund / Reversal of excess input tax credit availed - bonafide mistake - petitioner submits that the petitioner instead of claiming the CGST/SGST claimed IGST and it was not a bonafide mistake committed by the petitioner - HELD THAT:- Section 54 read with Section 49 prescribes for refund of excess tax etc., paid by the registered dealer by moving an application within the period of two years from the last date of filing the returns for the relevant year. In the present case, the financial year is of 2017- 18 for which the due date for filing the application for correcting the mistake or claiming the refund of the IGST was 23.04.2019 - Admittedly, the petitioner did not move any application within the time prescribed and even the extended time. This Court, in exercise of its limited jurisdiction cannot amend the statute, prescribes different time limit for moving such an application and, therefore, there are no substance in this writ petition.
So far as the Judgment of the Karnataka High Court in M/s. Orient Traders v. The Deputy Commissioner of Commercial Taxes & Another [2023 (1) TMI 838 - KARNATAKA HIGH COURT] relied on by the learned Counsel for the petitioner is concerned, in the said Judgment, the statutory provisions have not been taken - The said Judgment does not have any binding precedent.
The present writ petition is hereby dismissed.
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2024 (3) TMI 1269
Violation of principles of natural justice - challenge to Summary Order passed without issuance and service of DRC-01 - opportunity of hearing to the Petitioner not afforded - HELD THAT:- Having regard to the materials produced by the petitioner, the objection raised by Mr. Ashok Kumar Yadav, the learned Senior SC-I as to maintainability of this writ petition must be rejected. This is quite a well-settled preposition that the jurisdiction of the writ petition under Article 226 of the Constitution of India is plenary in nature and without any fetters, much less any technical objection.
In WHIRLPOOL CORPORATION VERSUS REGISTRAR OF TRADE MARKS, MUMBAI & ORS. [1998 (10) TMI 510 - SUPREME COURT], the Hon’ble Supreme Court clearly indicated that in cases where the order has been passed in breach of natural justice or the Authority passing the order lacks jurisdiction the writ petition is maintainable. Even so, statutory remedy to the aggrieved party is not always a ground not to entertain the writ petition.
Having regard to the materials on record, it is opined that the matter needs to be remitted back to the State Tax Officer who shall pass an appropriate order after affording an opportunity to the petitioner-Firm to place its defence by filing his reply to the notice dated 20th September 2021. Therefore, summary order dated 9th April 2022 is quashed. The petitioner-Firm shall be at liberty to produce the materials which form part of this writ petition and any other material in support of its defence.
Petition disposed off by way of remand.
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2024 (3) TMI 1268
Reversal of ineligible ITC under Section 74 of CGST Act, 2017 - mismatch between GSTR-2A and GSTR-3B submitted by the petitioner for the period 01.09.2023 till 13.09.2023 - HELD THAT:- Whether the transactions were bona fide or not and whether the selling dealer i.e. respondent No. 4 whose registration has been subsequently cancelled is responsible for non-deposit of tax leading to availment of ineligible ITC by the petitioner is not to be gone into by this Court at this stage. The scheme of the GST Act contemplates a pre-adjudication notice for which intimation under Section 74(5) of the Act of 2017 is issued in Form GST DRC-01A read with Rule 142(1A) upon the assessee/taxpayer containing the communication of details of any tax, interest and penalty chargeable upon the person under sub-section (1) of Section 73 or sub-section (1) of Section 74. This intimation is in Part A of Form GST DRC-01A.
Petitioner has not enclosed any notice indicating initiation of proceedings under Section 74(1) for wrongful availment of ITC by the proper officer, if the petitioner has not paid or short paid or erroneously refunded or wrongly availed ITC or utilized it by reason of fraud, or any wilful-misstatement or suppression of facts to evade tax - as per the scheme of Section 74(1), particularly provisions of Section 74(5) read with Rule 142 (1A) and 142 (2A), petitioner being the person referred to in the impugned notice is required to either make partial payment of the amount communicated to him or if he desires to file any submission or objection against the proposed liability, he may do so in Part B of Form GST DRC-01A.
This Court is of the considered view that petitioner may either make the necessary deposit or reverse the ineligible ITC along with interest and penalty or file his objection(s) in Part B of Form GST DRC-01A - Petition disposed off.
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2024 (3) TMI 1267
Validity of assessment order - breach of principles of natural justice - failure to reply to the show cause notice and participating in assessment proceedings - HELD THAT:- The petitioner responded to each of the '15' discrepancies noticed during inspection. In particular, the petitioner responded to discrepancy '11' by providing an ageing report in respect of sundry creditors. In response to discrepancy '7', the petitioner stated that revenues from Telangana, Andhra Pradesh and Kerala had been included on the basis of the audited financial statement and that such inclusion is untenable. A trial balance was also submitted. Although the petitioner should have responded to the intimation and show cause notice and availed of the opportunity of personal hearing, in the above facts and circumstances, the impugned assessment order calls for interference albeit by putting the petitioner on terms.
The impugned assessment order is quashed subject to the condition that the petitioner remits a sum of Rs. 15,00,000/- as agreed to towards the disputed tax demand within a maximum period of two weeks from the date of receipt of a copy of this order. The petitioner is also permitted to submit a reply to the show cause notice within the aforesaid period. Subject to the receipt thereof and upon being satisfied that the above mentioned sum of Rs. 15,00,000/- was received, the assessing officer is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh assessment order within a period of two months from the date of receipt of the petitioner's reply.
Petition disposed off.
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2024 (3) TMI 1266
Maintainability of appeal - time limitation - appeal dismissed as barred by limitation since the same was filed beyond the prescribed period of four months - Cancellation of GST registration of petitioner - failure to submit GST returns for a continuous period of six months - HELD THAT:- A perusal of the material on record will indicate that it is no doubt true that the appeal preferred by the petitioner before the Appellate Authority was dismissed as barred by limitation, in this context a perusal of the order of the Appellate Authority at Annexure – F dated 27.12.2023 will indicate that the merits of the claim of the petitioner for revocation of the GST cancellation has not been examined by the Appellate Authority, which has proceeded to summarily dismiss the appeal as barred by limitation - if an appeal is dismissed as barred by limitation, the order of the original authority would still remain and would not merge with the order-in-appeal and order of the original authority would be capable of being challenged under Article 226 of the Constitution of India subject to all exceptions known in law.
Merely because appeal preferred by the petitioner was dismissed by the Appellate Authority vide impugned order at Annexure – F dated 27.12.2023, it cannot be said that this Court is denuded of its power and jurisdiction to examine the claim of the petitioner under Article 226 of the Constitution of India or to examine the legality, validity and correctness of the order of the original authority under Article 226 of the Constitution of India.
Whether any indulgence is to be shown to the petitioner in the facts and circumstances of the instant case so as to enable the petitioner to seek revocation of the GST cancellation in its favour? - HELD THAT:- The petitioner is supplying food supplements to Anganwadi Centres and schools and is a society registered under the Karnataka Societies Registration Act. It is also pertinent to note that the petitioner has specifically contended that its inability and omission to file its returns within the prescribed / stipulated period was due to bona fide reasons, unavoidable circumstances and sufficient cause - matter remitted back to respondent No. 2 for consideration of the claim of the petitioner for revocation of GST cancellation after providing sufficient and reasonable opportunity to the petitioner.
Petition allowed by way of remand.
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