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Showing 81 to 100 of 1441 Records
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2025 (5) TMI 1361
Issuance of Form III B without mentioning the rate of tax - no column prescribed for mentioning the rate of tax to be leviable - Failure to adhere Binding nature of circulars issued by the Commissioners on the authorities - variance of rate of tax - Liability on issuing false certificates - demand created under Section 3B of the UP Trade Tax Act - duly registered dealer and is entitled for purchase of goods as prescribed under Section 4 B of the Act - HELD THAT:- On bare reading of the section 3 B, it shows that on issuing of false or wrong certificates to another person by reasons of which tax leviable under the Act on the transaction of purchase or sale made with or by such other person ceases to be leviable or becomes leviable at a concessional rate, shall be liable to pay on such transaction an amount which would have been payable as tax on such transaction, had such certificate or declaration not been issued.
In other words, if the registered dealer in a particular transaction issued a certificate on the intent on which no tax is levied or concessional tax was levied then for the balance amount, if found to be paid, can be realized on such certificate or declaration. The word ‘such certificate or declaration’ clearly shows that every certificate or declaration has to be looked into independently and for each default, if any, separate order has to be passed. For the complete assessment year, no common order can be passed. The legislature in its wisdom has not used the word ‘certificates or declarations’ for such transaction to which only one order can be passed.
Further the record shows that the circular dated 15.4.1986 and 24.4.1987 have not given due weightage though it was binding upon the authorities.
Thus, the matter requires reconsideration by the assessing authority and for that purpose, the impugned order passed by the Commercial Tax Tribunal is hereby set aside.
The matter is remanded to the assessing authority, who shall decide the case, de novo, in accordance with law.
The revisionist is directed to submit a certified copy of this order within ten days from today before the assessing authority and on receipt of the same, notice will be issued to the revisionist within a week thereafter.
Accordingly, the revision is allowed. The questions of law are answered accordingly.
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2025 (5) TMI 1360
Entitlement to claim input tax credit on the purchase of capital goods as per Section 19(2)(iv) of the TNVAT Act, 2006 - job work of manufacture for others - failed to consider the clause(e) in sub rule (4) of Rule 10 of the TNVAT Rules, 2007 - HELD THAT:- As per the job work agreement entered by the appellant with DCL, they only manufactured the refractory products by using the material supplied by DCL. The said components are further used in the manufacturing of final product of DCL. Thereafter, DCL would produce the final products by using the said components. Therefore, job work entrusted with the appellant by DCL can not be treated as manufactuing of capital goods in order to claim themselves as a dealer. They were only doing a job work by using the materials supplied by DCL. In the said circumstances, both the authorities correctly rejected the appellant's claim that they are not entitled to claim the benefit of the input tax credit. It is well settled principle as per Section 17 of the TNVAT Act, the burden of proving claim of input tax credit would always lie on the dealer.
In view of the above discussion, the appellant has not discharged the same.
The further plea of the respondent is that manufacturing of some of the additional material by the appellant would not make any difference in the above said reasoning. The Hon'ble Supreme Court in the case of Prestige Engineering (India) Ltd., and Others Vs. Collector of Central Excise, Meerut and Others (1994 (9) TMI 66 - SUPREME COURT), has made an elaborate discussion on this aspect and the ratio laid down by the Hon'ble Supreme Court is applicable to the present case.
Another submission of the learned counsel for the assessee on the basis of the Clause (e) in Sub Rule (4) of Rule 10 of the TNVAT, 2007, is misconceived one for the reason that the same was incorporated in the Rule on 03.12.2008 i.e., much after the assessment made in this case.
In the result, all the questions of law framed by this Court were answered against the appellant/assessee and answered in favour of the respondent/Revenue.
In light of the abovesaid detailed discussion and the overwhelming reasons for the conclusion arrived at by the Courts in the judgment cited and discussed, the impugned order is perfectly valid in the eye of law and the present Appeal fails and the same is dismissed.
The substantial questions raised are answered against the appellant/assessee and answered in favour of the respondent/Revenue.
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2025 (5) TMI 1359
Seeking rectification of error in the assessment order - mistakenly availed revision remedy instead of the appellate remedy under Section 77 of the OVAT Act - preferred due to inadvertence and on account of wrong advice - mistake of counsel - petition filled under Section 81 of the OVAT Act - Jurisdiction to entertain petitions under Section 79(2) - HELD THAT:- Faced with such situation, this Court deems it appropriate to hold that order dated 07.03.2019 passed by the Additional Commissioner of Sales Tax, Territorial Range, Cuttack-II, Cuttack and order dated 11.12.2014 passed by the Commissioner of Sales Tax, Odisha, Cuttack are nullity, inoperative and ineffective inasmuch as the said orders are passed without jurisdiction and authority under the statute. Therefore, this Court quashes the orders dated 07.03.2019 and 11.12.2014.
Considering the nature of transactions reflected in the assessment order dated 16.01.2017 passed under Section 42 of the OVAT Act and having regard to high stake demand of tax with imposition of penalty, the petitioner is entitled to avail opportunity to ventilate its grievance before the forum provided under the OVAT Act. Therefore, liberty is reserved to the petitioner to avail appropriate alternative remedy as available under the OVAT Act, if it is so advised.
Thus, the writ petition stands disposed of.
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2025 (5) TMI 1358
Dishonor of cheques - plea of cessation of partnership - Liability of partner u/s 138 of the NI Act - the cheques were signed by another partner - statutory requirements under the Indian Partnership Act, 1932, particularly Sections 32, 62, 63, and 72 - Dishonour of cheques due to ‘stop payment’ instructions issued by the drawee - complaint filled under Section 200 CrPC for an offence punishable under Section 138 of the NI Act - HELD THAT:- Since the Partnership Firm (Accused No.1) is a Firm registered with the Registrars of Firms, the provisions of the Partnership Act need to be referred to. A perusal of Section 72 of the Partnership Act would show that notice of retirement must be given to the Registrar of Firms under Section 63 and by publication in the Official Gazette, and in at least one vernacular newspaper circulated in the district where the Firm to which it relates has its place or principal place of business, such notice needs to be published. This should relate to the retirement of a partner, which includes admission, expulsion, or resignation from the Firm in any manner that is including or excluding a partner in a partnership Firm. Section 32 of the Partnership Act deals with the retirement of a partner.
In addition, Section 62 of the Partnership Act deals with the information to be submitted with regard to the change in the names and addresses of the partners to the Registrar of Firms. What, therefore, is mandated under the Statute is that if any registered Firm intends to include or exclude by way of resignation, expulsion or addition of any partner in the Firm, an intimation to the said effect has to be forwarded and conveyed to the Registrar of Firms. As per Section 63, the Registrar shall make a record of the notice in the entry relating to the Firm in the Register of Firms and shall file a notice along with a statement relating to the Firm as provided for under Section 59 of the Partnership Act.
None of these requirements as provided and mandated for under the Statute, have been adhered to by Respondent No.1. Merely putting forth a resignation or the partners entering into an agreement or drafting a deed or/and accepting the resignation of a partner of the Firm is insufficient for discharging the liability of a partner of the Firm unless a proper entry to the said effect after the publication has been given effect to with the same, having been recorded in the Register of Firms in the office of the Registrar of Firms as provided for in Section 63 of Partnership Act.
Further, simply because the cheques were signed by S. Yuvaraju (Accused No.2), who was the authorized signatory of the Partnership Firm (Accused No.1), does not discharge the liability of the Respondent. This is especially so when in the complaint filed under Section 200 of the CrPC by the Appellant, a categorical averment is made that the Respondent along with the other two partners of the Partnership Firm (Accused No.1) is involved in day-to-day affairs of the said Firm. In the complaint, it has clearly been pleaded that the Respondent-Accused No.4 was present at the residence of Accused No.2 when the cheques were signed. Further allegations are there to the effect that Accused No.3 and Respondent Accused No.4 had stated that they would ensure that the money is repaid. These facts collectively demonstrate that the requirements under Section 141 of the NI Act have been satisfied. Therefore, the Respondent cannot escape from the liability concerning the cheques which were issued by the Respondent.
The findings, therefore, with regard to the Respondent being no longer a partner of Partnership Firm (Accused No. 1) on the date of the issuance of the cheques is unsustainable, as it is contrary to the mandate of the Statute and prima facie the factual aspect.
Without further going into the details of the pleadings relatable to the facts, we are of the view that the High Court has erred in law by exceeding its jurisdiction while exercising its powers under Section 482 CrPC.
Thus, the present appeal is allowed.
The order passed by the High Court is hereby set aside. Proceedings before ACMM, Bengaluru in CC are restored. Trial Court is directed to proceed in accordance with the law.
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2025 (5) TMI 1357
Validity of consolidated Show Cause Notice (SCN) u/s 74 or Consolidated Adjudicating Order for different financial year - Petitioner contended that the notice under Section 74 of the Act can, at some stage, even get converted as a notice under Section 73 of the Act and therefore, the consolidation of either the Show Cause or Final order could not be permissible.
HELD THAT:- Matter listed for 29th April, 2025 in the Supplementary list.
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2025 (5) TMI 1356
Failure to comply with the mandatory requirement of communication of details of tax, interest and penalty in terms of subrule (1A) of Rule 142 of the CGST Rules, 2017 before service of notice - illegal assumption of jurisdiction to impose penalty under Section 122(2)(b) of the GST Act, 2017 -retrospective operation - determination of tax liability pertaining to the tax periods from July, 2017 to March, 2019 fell in error of law - invoking provisions of Articles 226 and 227 of the Constitution of India - sustainability of the Order-in-Original - HELD THAT:- Since Mr. Avinash Kedia, learned Junior Standing Counsel appears and waives issue of notice on behalf of Opposite Parties, learned counsel appearing for the Petitioner is requested to serve adequate number of copies of the writ petition on him within three working days to enable him to obtain instructions.
Since the learned Junior Standing Counsel has requested for obtaining instruction with respect to imposition of penalty in the context of amendment in sub-section (1A) of Section 122 of the CGST Act and consequences of non-communication of GST DRC-01A under Rule142(1A), as an interim measure, it is directed that the Petitioner shall deposit 20% of the amount of tax as determined in Order-in- Original dated 31.01.2025 under Annexure-3 within a period of two weeks hence and furnish evidence thereof before the authority concerned. If such deposit is made within said period stipulated, the Opposite Parties shall be restrained from taking coercive measure to enforce the demand raised in the impugned Order-in-Original (Annexure-3) till the next date.
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2025 (5) TMI 1355
Extension of time limit of issuance of SCN u/s 73 / 74 - Validity of Notification No. 56/2023-Central Tax -procedural requirements under Section 168A for prior to the issuance of notifications - No opportunity to file a reply to the SCN - Challenging the SCN and impugned order - HELD THAT:- In view of the peculiar circumstances and bearing in mind the period that has lapsed between the assessment years and the issuance of the SCN, the impugned order is set aside.
Considering the fact that the Petitioner did not get a proper opportunity to be heard and no reply to the SCN has been filed by the Petitioner, the matter deserves to be remanded back to the concerned Adjudicating Authority.
The Petitioner is granted time till 10th July 2025, to file the reply to SCN. Upon filing of the reply, the Adjudicating Authority shall issue a notice for personal hearing to the Petitioner.
The reply filed by the Petitioner to the SCN along with the submissions made in the personal hearing proceedings shall be duly considered by the Adjudicating Authority and fresh order with respect to the SCN shall be passed accordingly.
The present writ petition is disposed of in above terms.
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2025 (5) TMI 1354
Limitation for filing an appeal under Section 107 - No opportunity to file a reply of SCN or participate in the proceedings - Cancellation of the GST registration retrospectively violation of principles of natural justice - HELD THAT:- Following the decision of this Court on similar facts, in the Ms Blackmelonadvance Technology Company Pvt Ltd V. Commissioner Of State Goods And Services Tax Delhi & Anr. [2025 (4) TMI 1511 - DELHI HIGH COURT]
Accordingly, exercising writ jurisdiction under Article 226 of the Constitution of India, the Petitioner’s appeal is directed to be heard on merits, subject to payment of Rs. 20,000/- as costs with the Department of Trade & Taxes, Government of National Capital Territory of Delhi.
The proof of costs shall be placed before the Appellate Authority and the appeal shall be restored to its original number. The appeal shall be heard by the Appellate Authority on merits in accordance with law.
The petition is disposed of.
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2025 (5) TMI 1353
Cancellation of the GST registration retrospectively - principal place of business not found/available at the field visit - No opportunity to be heard and no reply to the SCN - principles of natural justice - Validity of SCN and impugned order - HELD THAT:- Considering the fact that the Petitioner did not get a proper opportunity to be heard and no reply to the SCN has been filed by the Petitioner, the matter deserves to be remanded back to the concerned Adjudicating Authority.
Accordingly, the impugned order is set aside. The Petitioner is granted time till 10th July 2025, to file the reply to SCN. Upon filing of the reply, the Adjudicating Authority shall issue a notice for personal hearing to the Petitioner.
The reply filed by the Petitioner to the SCN along with the submissions made in the personal hearing proceedings shall be duly considered by the Adjudicating Authority and a fresh order with respect to the SCN shall be passed accordingly.
The present writ petition is disposed of in above terms.
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2025 (5) TMI 1352
Disallowance of input tax credit (ITC) - bogus input tax credit - non-existent supplier - Availment of the alternative remedy - seeking withdrawal of the writ petition - HELD THAT:- Faced with such situation, this Court grants liberty to the petitioner to approach the appropriate authority as available under the CGST/OGST Act.
Thus, the writ petition stands disposed of as withdrawn with the aforesaid liberty.
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2025 (5) TMI 1351
Rejection of an appeal on grounds of a 37-day delay - Show Cause Notice alleging discrepancy between GSTR-3B and GSTR-7 - delay resulted from efforts to remit tax through the Block Development Officer (BDO) - HELD THAT:- Considering the fact the delay of 37 days has been satisfactorily explained, this Court is of the view that the order of the 1st respondent warrants interference by this Court.
Accordingly, the impugned order dated of the first respondent dated 15.04.2025 is set aside and a direction is issued to the 1st respondent to entertain the petitioner's appeal without reference to the delay and pass appropriate orders on merits and in accordance with law as expeditiously as possible.
The Writ Petition is disposed of to the extent indicated above.
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2025 (5) TMI 1350
Application for amending the particulars in the GST registration - seeking to change the address of the principal place of business mentioned - Input Tax Credit has been blocked - HELD THAT:- The Court is of the opinion that the Petitioner should be afforded another opportunity to provide the details as requested. The Petitioner shall accordingly submit the documents through the portal within one month and seek a hearing. Personal hearing shall be given in this matter and the application for change in the address of the principal place of business shall be considered and an order shall be passed within a period of three months.
If any Input Tax Credit of the Petitioner has been blocked, the same shall be unblocked as well. It is clarified that this order would not affect any other proceedings, if any, pending against the Petitioner or in respect of the said GSTN number.
The present writ petition is disposed of in the above terms.
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2025 (5) TMI 1349
Challenge to SCN and consequent demand order - challenge to N/N. 9/2023-Central Tax dated 31st March, 2023 - extension of time limits for adjudication - HELD THAT:- This Court in Neelgiri Machinery through its Proprietor Mr. Anil Kumar V. Commissioner Delhi Goods And Service Tax And Others [2025 (3) TMI 1308 - DELHI HIGH COURT] under similar circumstances where the SCN was uploaded on ‘Additional Notices Tab’ had remanded the matter.
There is no doubt that after 16th January 2024, changes have been made to the GST portal and the ‘Additional Notices Tab’ has been made visible. However, in the present case, the writ petition was filed in the year 2024, raising issues as to the validity of the impugned notification. Under such circumstances, considering the fact that the Petitioner did not get a proper opportunity to be heard and no reply to the SCN has been filed by the Petitioner, the matter deserves to be remanded back to the concerned Adjudicating Authority.
The impugned order is set aside - petition disposed off by way of remand.
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2025 (5) TMI 1348
Challenge to SCN and consequent demand order - challenge to N/N. 56/2023-Central Tax dated 28th December, 2023 - extension of time limits for adjudication - HELD THAT:- This Court in Neelgiri Machinery through its Proprietor Mr. Anil Kumar V. Commissioner Delhi Goods And Service Tax And Others [2025 (3) TMI 1308 - DELHI HIGH COURT] under similar circumstances where the SCN was uploaded on ‘Additional Notices Tab’ had remanded the matter.
There is no doubt that after 16th January 2024, changes have been made to the GST portal and the ‘Additional Notices Tab’ has been made visible. However, in the present case, the writ petition was filed in the year 2024, raising issues as to the validity of the impugned notification. Under such circumstances, considering the fact that the Petitioner did not get a proper opportunity to be heard and no reply to the SCN has been filed by the Petitioner, the matter deserves to be remanded back to the concerned Adjudicating Authority.
The impugned order is set aside - petition disposed off by way of remand.
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2025 (5) TMI 1347
Challenge to SCN and consequent demand order - challenge to N/N. 56/2023-Central Tax dated 28th December, 2023 - extension of time limits for adjudication - HELD THAT:- This Court in Neelgiri Machinery through its Proprietor Mr. Anil Kumar V. Commissioner Delhi Goods And Service Tax And Others [2025 (3) TMI 1308 - DELHI HIGH COURT] under similar circumstances where the SCN was uploaded on ‘Additional Notices Tab’ had remanded the matter.
The impugned demand orders dated 23rd April, 2024 and 5th December, 2023 are accordingly set aside. In response to show cause notices dated 04th December, 2023 and 23th September, 2023, the Petitioner shall file its replies within thirty days. The hearing notices shall now not be merely uploaded on the portal but shall also be emailed to the Petitioner and upon the hearing notice being received, the Petitioner would appear before the Department and make its submissions. The show cause notices shall be adjudicated in accordance with law.
There is no doubt that after 16th January 2024, changes have been made to the portal and the Additional Notices Tab has been made visible. However, in the present case, the writ petition was filed in 2024 raising issues as to the validity of the impugned Notifications. Under such circumstances, considering the fact that the Petitioner did not get a proper opportunity to be heard and no reply to the SCN has been filed by the Petitioner the matter deserves to be remanded back to the concerned Adjudicating Authority.
The Petitioner is granted time till 10th July 2025, to file the reply to SCN. Upon filing of the reply, the Adjudicating Authority shall issue to the Petitioner, a notice for personal hearing.
The impugned order is set aside - petition disposed off.
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2025 (5) TMI 1346
Refund claim in FORM GST RFD-06 - Entitlement to interest on the Balance Refund - petitioner has not furnished material information - participation in the purchase and distribution of LPG empty cylinders and LPG gas - HELD THAT:- We have noticed from the pleadings of the petitioner before the concerned authority that LPG Empty Cylinder has not sold to consumer, on the other hand, he must have sold only gas, that means prima facie section 54 of Central Goods and Services Tax Act, 2017 read with Rule 89(5) of the Central Goods and Services Tax Rules, 2017 would attract.
Be that as it may, having regard to the disputed issues the petitioner is relegated to the appellate authority in the event of filing memorandum of appeal before the appellate authority within a period of eight weeks from today. The concerned appellate authority is hereby directed to take note of and decide the memorandum of appeal to be filed on behalf of the appellant within a reasonable period of four months from the date of receipt of such appeal.
With the above observation, the present CWJC No. 14403 of 2024 stands disposed of.
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2025 (5) TMI 1345
Demand for tax including the tax, interest and penalty - attachment of the bank accounts for recovery of the alleged tax dues - inability and omission on the part of the petitioner to submit a reply to the show-cause notice and pre-intimation - Show Cause Notices and pre-intimation notices communicated electronically by uploading the same on GST portal as well as e-mail - issued under Rule 142(1A) and Section 74 of the CGST/KGST Act, 2017 - Challenged the impugned order passed under Section 74(9) - HELD THAT:- Though several contentions have been urged by both sides as regards to the petitioner not having received the pre-intimation notice and show-cause notice and his inability and omission to contest the proceedings, is a matter of record and an undisputed fact that the petitioner did not submit his reply to the show-cause notice or pre-intimation notice nor contested the proceedings, which culminated in the impugned ex-parte order.
Under these circumstances, having regard to the specific assertion on the part of the petitioner that his inability and omission to submit replies and contest the proceedings was due to bona fide reasons, unavoidable circumstances and sufficient cause, I deem it just and appropriate to adopt a justice oriented approach and provide one more opportunity to the petitioner by setting aside the impugned order dated 05.10.2023 and remitting the matter back to the first respondent for reconsideration of the matter afresh in accordance with law to the stage of petitioner submitting reply to the impugned show-cause notice.
In the result, I pass the following:
(i) The petition is hereby allowed.
(ii) The impugned order dated 05.10.2023 passed by the first respondent under Section 74 (9) of the CGST/KGST Act, 2017 at Annexure-K is hereby set aside.
(iii) The petitioner is directed to appear before the first respondent on 28.04.2025 without awaiting further notice from the first respondent.
(iv) The liberty is reserved in favour of the petitioner to submit replies, documents etc., which shall be considered by the first respondent who shall provide sufficient and reasonable opportunity to the petitioner and hear them and proceed further in accordance with law.
(v) It is further made clear that in the event petitioners do not appear on 28.04.2025, the present order shall stand automatically recalled/cancelled and the present petition shall stand revived/ restored without further orders and without reference to the Bench.
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2025 (5) TMI 1344
Challenged the impugned ex-parte orders passed without hearing and SCN - Difference/discrepancy between Form GSTR-3B and Form GSTR-2A - failure to respond to the show cause notices - non-consideration of the Circular issued by the Central Government, Government of India, bearing No. 183/15/2022-GST - bona fide reasons and sufficient cause justifying reconsideration of the matter - HELD THAT:- In view of the specific assertion on the part of the petitioner that his inability and omission to submit the reply to the show cause notice and participate in the proceedings was due to bona fide reasons, unavoidable circumstances and sufficient cause, by adopting a justice oriented approach and in order to provide one more opportunity to the petitioner, I deem it just and appropriate to set aside the impugned orders and remit the matter back to the respondent for reconsideration afresh in accordance with law by issuing certain directions.
In the result, I pass the following:
The Writ Petition is allowed;
The impugned orders passed by respondent at Annexures-E1 dated 31.05.2023, E2 dated 06.01.2024, F1 dated 31.05.2023, F2 dated 06.01.2024, H1 dated 06.06.2024 and H2 dated 06.06.2024, are hereby set aside;
The matter is remitted back to the respondent for reconsideration afresh in accordance with law, bearing in mind the aforesaid Circular bearing No.183/15/2022-GST dated 27.12.2022;
Upon the petitioner submitting a reply along with relevant documents to the show cause notice, on 28.04.2025, the respondent shall afford a reasonable opportunity to the petitioner and hear him and proceed further in accordance with law.
It is further made clear that in the event petitioners do not appear on 28.04.2025, the present order shall stand automatically recalled/cancelled and the present petition shall stand revived/ restored without further orders and without reference to the Bench.
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2025 (5) TMI 1343
Entitlement for refund of unutilized Input Tax Credit (ITC) qua Cess - zero-rated supplies - goods manufactured for export - Validity of Circular No.125/44/2019-GST-as well as para-5 of the Circular No.45/19/2018-GST issued under Section 168 - challenged the show cause notice and the order of sanction of refund - HELD THAT:- While applying the provisions of the Section 54(3) of the GST Act read with Section 16(3) of the IGST Act and Section 11(2) of the Cess Act, admittedly the compensation cess was not paid at the time of export of goods by the petitioner, the petitioner, therefore, is entitled to refund of input tax credit of the compensation cess paid on purchase of the coal utilized for the purpose of manufacture of the goods which are exported as zero rated supply on payment of IGST by the petitioner. Therefore, reliance placed by the respondent on para-42 of the Circular No.125/44/2019 dated 18/11/2019 is misplaced because the said circular was issued clarifying the eligibility to claim refund of unutilized input tax credit of compensation cess paid on input, where the zero rated final product is not leviable with compensation cess.
However, the circular refers to the provision of Section 16(2) of the IGST Act that the registered person making zero rated supply of aluminum products under bond or LUT may claim refund of unutilized credit including that of compensation cess paid on coal. The circular further clarifies that when the registered person make a zero rated supply of product on payment of integrated tax, they cannot utilize the credit of the compensation cess paid on coal for payment of Integrated tax in view of the proviso to Section 11(2) of the Cess Act, as the said proviso allows the utilization of the input tax credit of cess, only for the payment of cess on the outward supplies. However, when the petitioner has paid the IGST under Section 16(3) of the IGST Act on the zero rated supply and refund is claimed by the payment of such IGST, the petitioner admittedly would not be able to utilize input tax credit of cess as cess is not payable on the zero rated supply. Therefore, proviso to Section 11(2) of the Act would not be applicable in the facts of the case and the petitioner would be entitled to refund of the unutilized input tax credit on cess paid on purchase of coal utilized for the purpose of manufacture of goods which are exported.
Thus, the petitions succeed and accordingly the same are allowed. The respondents are directed to process the refund applications of the petitioners to sanction the refund of the Cess amount claimed by the petitioners as unutilized Input Tax credit.
So far as the Special Civil Application No.19279 of 2023 is concerned, order dated 28/07/2023 passed by the Officer of the Commissioner (Appeals) is hereby quashed and set aide and order sanctioning the refund is restored.
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2025 (5) TMI 1342
Provisional attachment of the petitioner's bank account - Section 83 of the Central Goods & Services Tax Act, 2017 - Fresh attachment since the initial (previous) attachment order was quashed - failure to render cooperation in the disposal of those show cause proceedings - HELD THAT:- Section 83 of the CGST Act mandates that provisional attachment may be exercised in situations where the Commissioner is of the opinion that “for the purpose of protecting the interest of Government revenue” such an action “is necessary so to do”. The Supreme Court in Radha Krishnan also recognised the triumvirate conditions embodied in the provision, which is that the attachment of property is intended to be provisional, i.e., “in aid of something else”, the purpose of such attachment must be to protect the interests of the Revenue and that the conditions as laid down within the provision must be met in order for such attachment to be deemed as a valid exercise of power.
The respondents, in clear contravention of the requirements laid down in Radha Krishnan [2021 (4) TMI 837 - SUPREME COURT] have been unable to demonstrate any reasonable apprehension that the writ petitioner herein was at risk of defaulting on payment of any demands that may come to be imposed. On the contrary, the only reasons adduced by the respondents for the initiation of Section 83 proceedings was that the writ petitioner had failed to file any response to the DRC-01 or the SCN, did not attend the hearing of the adjudicating authority and allegedly refused to cooperate with the respondents during the adjudication of show cause proceedings - such reasoning abjectly fails to meet the thresholds as engrafted within the provision, of the respondents being required to form an opinion that it is necessary to provisionally attach the property so as to protect the interest of government revenue.
As observed by the Supreme Court in Radha Krishnan, the draconian nature of the provision and the grave consequences that are suffered by a person whose property is provisionally attached necessitates that the criterion for valid initiation of Section 83 actions are met. This requires the production of cogent and credible material basis which the respondents could have reasonably come to form an opinion that a provisional attachment is necessary and essential for the purposes of securing the interests of government revenue. It surely cannot be justified on the basis of vague apprehensions or a failure to cooperate or provide responses to notices.
Conclusion - The respondents' exercise of power under Section 83 was without the requisite formation of opinion based on tangible material, was arbitrary, and violated statutory and constitutional principles. The attachment was therefore quashed, and directions were issued for the immediate de-freezing of the petitioner's bank account.
The impugned order of provisional attachment dated 26 December 2024 set aside - petition allowed.
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9911796707
