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Showing 441 to 460 of 839 Records
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2020 (6) TMI 399
Validity of assessment u/s 147 - no addition is made in regards to reason for which assessment is reopened - Addition u/s 68 - HELD THAT:- We find that original return was processed u/s 143(1) and the only requirement under law to initiate reassessment proceeding against the assessee was that Ld.AO had reasons to believe that certain income had escaped assessment. AO was clinched with specific information while forming such reasons which suggested possible escapement of income in the hands of the assessee.
Nothing more, in our opinion, was required at that stage to reopen the assessee’s case and formation of a prima-facie opinion was sufficient to trigger the reassessment proceedings.
Not convinced with legal grounds / submissions made by Ld. AR, we dismiss the same and hold that reassessment proceedings were validly initiated against the assessee. Ground Nos. 1 to 2 as well as additional ground stands dismissed.
So far as the merit of the case are concerned, we find that the onus to demonstrate the fulfilment of primary ingredients of Sec.68 was on assessee. This onus was to prove the identity of the investor entities, their respective creditworthiness and genuineness of the transactions.
This onus was more in the factual matrix which led to trigger reassessment proceedings against the assessee. Upon perusal of documents on record, we find that the assessee had furnished Income Tax Acknowledgements of the investor entities, Board Resolutions passed by those entities to make investment in the assessee entity, copies of Share Application form, audited annual accounts and the bank statements of investor entities. There are no immediate cash deposits in the bank accounts of these entities before making investment in the assessee entity.
The allotment was authorized by Board Resolution of the assessee and Return of Allotment in Form No.2 was filed with appropriate authorities. Upon perusal of these documents, it could be said that the assessee had discharged the primary onus of Sec.68 and it was incumbent on the part of Ld.AO to rebut assessee’s claim. However, we find that no material has been brought on record to suggest that any cash got exchanged between the assessee and the investor entities and the assessee’s unaccounted money was channelized in the books in the garb of share application. Mere non-appearance of directors alone could not support the impugned additions in the hands of the assessee.
We delete the impugned additions u/s 68 - Decided in favour of assessee.
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2020 (6) TMI 398
Levy of penalty u/s 271(1)(c) - Defective notice - HELD THAT:- Assessment order did not record any satisfaction as to for which limb of Section 271 (1)(c) of the I.T. Act the penalty proceedings have been initiated. The A.O. merely mentioned at the bottom of the assessment order after computing the income that “penalty proceedings under section 271(1)(c) of the I.T. Act have been initiated separately.” Thus there is a violation of the Law in the matter. We, therefore, do not find any justification to levy the penalty under section 271(1)(c) of the I.T. Act against the assessee. In view of the above discussion, we set aside the Orders of the authorities below and cancel the penalty. Appeal of the Assessee is allowed accordingly.
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2020 (6) TMI 397
Rejection of renewal of CHA licence - misdeclaration of imported goods - Smuggling - white fine powdery chemical, containing a whitish colored coarse chemical, concealed in between the bags of Sodium Sulphate - HELD THAT:- The appellant is not required to fulfil under Regulation 5 of CBLR, 2013, inasmuch [as] the appellant is not new ‘applicant’. We further find that the Regulations 4, 5 and 7 is applicable to an applicant, who applies and undertakes examination conducted by Directorate General of Inspection of Customs & Central Excise, by inviting application by publication of notice in two leading national daily newspapers in English and Hindi and, subsequently grants licence to successful applicant(s).
Further, the said affidavit has been filed in haste, as is evident from the fact that when Regulation 5 is not applicable to the appellant, there was no requirement to file any affidavit by the appellant. This gets further supported from the first letter dated 1-1-2017 filed by the appellant, to the department, wherein they have prayed to extend the validity of licence for five years i.e. for the period which was lost from the date of suspension i.e. 15-12-2010 till the date of original validity i.e. 15-12-2015.
The license stands restored for the period of 10 years w.e.f. the date of this order - appeal allowed - decided in favor of appellant.
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2020 (6) TMI 396
Smuggling - Import of Gold Jewellery - ‘bona fide’ baggage - Baggage Rules - case of Revenue is that the jurisdiction in a dispute relating to ‘baggage’ vested with the Government of India, in its revisionary authority, and was not under the appellate jurisdiction of the Tribunal - Confiscation - penalty - HELD THAT:- On perusal of the Rules pertaining to importation of jewellery, as baggage by an arriving passenger, it is seen that the quantity in the present dispute is far in excess of that allowed free of duty on import into India. Therefore, the passenger has failed to comply with declaration requirements and confiscation under section 111(1) of Customs Act, 1962 is not misplaced.
Confiscation - HELD THAT:- The appellant is a citizen of Malaysia and intends to return to her country of domicile. She was unable to carry into, and wear the gold jewellery in, India and it is her request that she should be allowed to carry it back with her on the return trip to Malaysia. In view of these circumstances and this plea, while holding that the goods are liable for confiscation under section 111(1) of Customs Act, 1962, we desist from endorsing the conformation - Confiscation set aside.
Imposition of penalty u/s 112(a) of the Customs Act, 1962 - HELD THAT:- As the goods were liable for confiscation, the liability to penalty under section 112(a) of the Customs Act, 1962 is not unwarranted - the imposition of penalty of would suffice to meet the ends of justice.
Appeal disposed off.
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2020 (6) TMI 395
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Dishonor of cheque - pre-existing dispute or not - time Limitation - HELD THAT:- The preliminary issue raised by the Corporate Debtor that filing of Section 138 of the Negotiable Instruments Act, 1881 by the Operational Creditor before the Magistrate Court, Bombay, would amount to preexisting dispute is no longer res integra since the said issue was put to quietus by the Hon'ble NCLAT in the matter of Sudi Sachdev -Vs- APPL Industries Ltd. [2018 (11) TMI 1671 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], wherein at para 6, it was held that the pendency of the case under Section 138 of the Negotiable Instruments Act, 1881, even if accepted as recovery proceedings, it cannot be held to be a dispute pending before a court of law.
It is evident that the claim as raised by the Operational Creditor is within the prescribed period of limitation of 3 years. The registered office of the Corporate Debtoris situated within the State of Tamilnadu, amenable to its territorial jurisdiction and this Authority has no hesitation in admitting this Petition and initiating the Corporate Insolvency Resolution Process (CIRP) as against the Corporate Debtor.
Application admitted - moratorium declared.
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2020 (6) TMI 394
Maintainability of petition - oppression and mismanagement - Stay of the Extra Ordinary General Meeting - whether the Petitioners were successful in making out a case for interference by this Tribunal by invoking Section 241 and 242 of the Companies Act, 2013? - HELD THAT:- The reading of Sections 397 and 398 provides a right to members of a company who comply with the conditions of Section 399 (Section 244 of the New Act) to apply to the court for relief under section 402 of the Old Act (Section 242 of the New Act) or such other reliefs as may be suitable in the circumstances of the case, if the affairs of a company are being conducted in a manner oppressive to any member or members including any one or more of those applying. Therefore, we have to understand Section 399 of Old Act (Corresponding to Section 249 of New Act) to arrive at a decision on maintainability of the instant petition.
Whether the Petitioners have the requisite qualifications as prescribed under section 399 to file this petition? - HELD THAT:- The object of prescribing a qualifying percentage of shares to file petitions under sections 397 and 398 is clearly to ensure that frivolous litigation is not indulged in by persons who have no real stake in the company. What is required in these matters is a broad common-sense approach. If the court is satisfied that the Petitioners represent a body of shareholders holding the requisite percentage, it can assume that the involvement of the company in litigation is not lightly done and that it should pass orders to bring to an end the matters complained of and not reject it on a technical requirement. However, the Respondents have raised their objections regarding the eligibility of the Trusts which are holding 13.8% and have questioned the eligibility of Secretary/General Secretary who are repressing the Petitioners No. 3 and 4.
Whether the Trust represented before the NCLT have sufficient authorization to fulfil the eligibility criteria? - HELD THAT:- In the present case it is seen that Petitioner Nos. 3 and 4 are Trusts namely, Matha Jeevan Trust and Jeeva Trust, which were represented through their Secretary and General Secretary respectively. The answer to this question would depend on whether the trustees of the trust could authorize one of them to initiate proceedings for and on behalf of the Trust.
The Secretary of the Petitioner No. 3 and General Secretary of the Petitioner No. 4 was authorised to appear before any Court of law or in any legal proceedings by the respective Trust Deeds, and they have duly filed this petition. The trustee can come before the court through the representation of Secretary/General Secretary, as the Trustees of the Trusts are the members of the Company and their names appears in the Register of Members of the Company. If the name of the Trustee/Chairman is in the Register of Members or if the share certificates have been issued in the name of the Trustee/Chairman, in respect of the shares, irrespective of whether such admission of a Trustee/Chairman as a member is valid or not, the Trustee/Chairman can maintain the petition as it has been admitted as the member, especially when no proceedings has been initiated to rectify the Register of Members for deleting the name of the Trustee/Chairman on the ground that they cannot be admitted as a shareholder/member - In the present case, the Trustee of 3rd Petitioner, i.e., Matha Jeevan Trust holds 14425 equity shares constituting 4.8% of the paid-up capital of the company whereas, the Chairman of the 4th Petitioner, i.e, Jeeva Trust holds 26980 equity shares constituting 9% of the paid-up share capital of the company. The 3rd and 4th Petitioners hold share certificates issued in their names and they are in a position to establish that the name of the Trustee/Chairman is in the Register of Members, then the Respondents cannot question the capacity of the member/Trustee/Chairman who hold more than 10% to file this petition.
The consent made by the 31 shareholders are an intelligent consent, in the sense, a consent given for the purpose of making allegations in the petition and for the purpose of claiming reliefs therein and therefore it cannot be considered as a blanket consent, but a valid one as contemplated under section 399(3) of the Old Act. Even assuming that the consent given by these 31 shareholders is not valid, even then, the petition satisfies the conditions under section 399 as the percentage of shareholding has already crossed the 10% threshold laid down in the Section - in the light of Sections 397, 398 and 399 of the Companies Act, 1956 (Corresponding to Sections 241, 242 and 244 of the Companies Act, 2013), prima facie, we are of the view that the petition is maintainable.
In the instant petition, the Respondents had conducted the EoGM at Thiruvananthapuram. Even assuming that the EoGM was validly conducted by a proper requisition, if the resolutions passed in the said EoGM are oppressive in the eyes of law to the minority shareholders, then we are of the considered view that the Tribunal can exercise the inherent power to take appropriate action against the wrong doers. If the acts are done legally but not with a good faith in the interest of the company or was done with a mala fide intention to gain control over the company, the acts are said to be illegal and non-est in the eyes of law.
It is explicit that, when a meeting is requisitioned by some shareholders for the purpose of removing directors, the requisitionists' letter must be circulated prior to the meeting and it must disclose the grounds on which they want to proceed against the director - the notice of the meeting must be accompanied by a copy of the resolution and an explanatory statement. In the instant petition, we have not come across any explanatory note from the requisitionsts as well as the company, attached to the letter sent to Petitioners.
The Respondents have indulged in oppression of minority shareholders and effected change in the control and management of Respondent Company, by their financial clout, muscle power and by adopting dubious methods to achieve their ends.
Whether the Respondents in their Capacity as Directors of the Company had failed in complying with the fiduciary duty towards the shareholders? - HELD THAT:- It has neither a mind nor a body of its own. This makes it necessary that the company's business should be entrusted to some human agents. Hence the necessity of Directors. The law, therefore, continues to struggle against their wiles and imposes upon them certain duties which, when properly enforced, will without driving away from the field competent men, materially reduces the chances of abuse. Prior to the enactment of the Indian Companies Act 2013, the codified law with regard to the fiduciary duties of directors was largely silent on the said aspect, except for Section 291 which contained the provision dealing with general powers of the board of directors. Duties of directors, hitherto, were largely laid down by courts by looking at common law principles - A close reading of the present section lead us to conclude that it is motley of easily identifiable elements like shareholders and employees along with vague groups like the community. Thus, it would provide a cause of action to any person from the society giving rise to a problematic and absurd scenario.
Whether the director is expected to act in 'good faith' for the promotion of the objects of the company or should it also encompass other groups in the sub-section? - HELD THAT:- While acting in the best interest, a director must carefully weigh commercial interests of the company on one hand while also taking into account the safeguarding of the interests of the stakeholders, on the other. While doing so, the director must ensure that his actions conform to the standards of those of a reasonably prudent person. The duty of good faith sets a higher standard than the best interest criterion. Harmony must be sought to be struck between commercial considerations of the company and the interests of stakeholders.
Whether allotment of shares was done bonafide in the interest of the company or the said allotment was made mala fide with the object of gaining the control of the company? - HELD THAT:- The allotment of shares was done to achieve different purposes, i.e., to increase the number of members of their group in the company and conversion of loan amount as share application money, is to increase their shareholding and to maintain the control over the company - the directors are not entitled to use their powers of issuing shares merely for the purpose of maintaining their control or the control of themselves and their friends over the affairs of the company or merely for the purpose of defeating the wishes of the promoter Directors and to capture the company.
It is well settled that if the Directors exercise their powers for the purposes other than those for which they were conferred, it may be said that they have exceeded their authority. It is evident that the mala fide intention of the Respondents 2 to 4 at the behest of Respondents 5 to 8 to remove the Petitioners from the Company has been done with undue haste for the purpose of grabbing power in the Respondent No. 1 Company. This clearly depicts that the Respondent 2 to 4 were hand-in-glove and supporting the actions of the Respondent No. 5 and gives credence to the allegations of the Petitioners - the Respondents group led by Respondent No. 5 are acting against the interest of Respondent Company and minority shareholders, for making material changes in the management of the Respondent company.
The applicability of the provisions contained in Sections 397and 398 of the old Act. Section 397 gives a right to members of the Company who comply with the conditions of Section 399 to apply to the court for relief under section 402 of the act or such other relief as may be suitable in the facts and circumstances of the case. In the instant case, it cannot be disputed that the conditions of Section 399 are complied with. There is no substance in the contention that the Petitioners are not entitled to make the application, as the Petitioners do not constitute 10% shareholding in total. However, the tribunal can exercise its powers, the tribunal must be satisfied that the requirements of the Section 397 are fulfilled and the said requirements are that on an application under section 397 of a member who has right to apply in virtue of Section 399.
This Tribunal is of the considered view that the Company's affairs in relation to the Petitioners have been conducted in an oppressive manner by the Respondents and the facts would render that it is just and equitable to wind up the Company - Petition allowed.
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2020 (6) TMI 393
Rejection of Resolution Plan - the reason for the dismissal of the Resolution Plan by the Committee of creditors were on account of Expression of Interest (EOI) deviation, and non-fulfillment of other eligibility criteria - HELD THAT:- The Appellant has strictly not complied with the terms and conditions of Expression of Interest (EOI) dated 14.08.2018 and non-submission of EMD along with submission of Resolution plan dated 4.10.2018 as required by the Bid Process Memorandum. They have also deviated on other parameters. And hence CoC after deliberation has rejected the plan and accordingly the Resolution Professional has communicated to the Resolution Applicant. Since, liquidation proceedings as a going concern is already on from July 2019 and there is always scope for Resolution Applicants to opt for Arrangements under Section 230-232 of the Companies Act, 2013, if they are eligible in accordance with provisions of Insolvency and Bankruptcy Code, 2016 along with relevant Rules.
There is no merit in the case to consider the relief of setting aside the impugned order of NCLT, Hyderabad Bench - the order of NCLT Hyderabad Bench upheld.
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2020 (6) TMI 392
CIRP proceedings - Whether the income tax department is a Secured Creditor. - Attachment of Refund - time limitation in terms of sub-section (2) of Section 281B of the Income-tax Act, 1961 - the Adjudicating Authority directed the Income-tax Department to release the refund amount HELD THAT:- We have brought it to the notice of learned counsel for the Appellant that in Form B of Insolvency and Bankruptcy Board of India (Corporate Insolvency Resolution Process) Regulation there is no provision made for Operational Creditors to claim that Corporate Debtor has created security interest. On the other hand, in Form C, which is meant for Financial Creditors, there is specific provision for Financial Creditor to state as to whether the security interest is created by Corporate Debtor or not.
In view of the aforesaid lacuna, even the Income-tax Department if Secured Creditor, cannot claim to be a Secured Creditor when Form B is filed. How the matter is sorted out is upto the Liquidator to decide in terms of the I&B Code - V
Appeal disposed off.
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2020 (6) TMI 391
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- It is noted that the supplies have been made by the operational creditor to the corporate debtor who has used such supplies to make the final products for consumption of its client i.e. the railway. It is also noted that such supplies were made by the operational creditor after inspection and approval by RITES Ltd., which is the competent authority, hence, there cannot be a dispute regarding the quality of material supplied by the operational creditor. It is further noteworthy that the operational creditor filed a civil suit for recovery of its amount before the Hon'ble High Court, Calcutta which passed a decree in favour of the operational creditor which remained non-complied by the corporate debtor. Even, application for recalling of said decree filed by the corporate debtor has been dismissed by the Hon'ble High Court.
There is no case of suppression of any material fact. Further, no material of whatsoever nature has been brought on record to show that there exists some dispute except making oral allegations within the meaning of Sec.5(6) of the Insolvency & Bankruptcy Code, 2016 prior to initiation of this proceedings. Thus, there is an operational debt which is due and a default has occurred, hence, on merits the case of operational creditor succeeds. The petition is otherwise complete in all respects and complies with the requirements of provisions of Insolvency & Bankruptcy Code, 2016 read with regulations thereto.
Application admitted - moratorium declared.
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2020 (6) TMI 390
Taxability - sale of loose liquor - case of petitioner is that though the petitioner is also selling alcohol (in loose form), petitioner is not liable to pay VAT as the liability was already discharged at the time of the first sale by the Telangana Beverages Corporation Limited and the sale of loose liquor is not taxable as per Explanation III to Section 2 (38) of the Act - opportunity of hearing not provided - principles of natural justice - Lockdown due to COVID pandemic situation - HELD THAT:- The petitioner had made a request in his letter dt.26.03.2020 which was acknowledged by the 1st respondent on 27.03.2020 that the petitioner was disabled from furnishing readily all the documents in support of the petitioner’s contentions in view of the lockdown situation prevailing in the State and in the country on account of outbreak of COVID-19 and if the 1st respondent were to grant time till the lockdown restrictions for movement were relaxed, the petitioner would furnish the same. The petitioner also requested in the said letter dt.26.03.2020 for an opportunity of personal hearing - The existence of the lockdown prohibiting movement of people on roads on account of outbreak of COVID-19 is an admitted fact. In these circumstances, the 1st respondent cannot reasonably expect the petitioner to furnish all the requisite documents for the petitioner to defend itself, that too for a period of (5) years within the (1) week time granted by the 1st respondent.
There has been a gross violation of principles of natural justice and fair opportunity was denied to the petitioner by the 1st respondent to defend itself - notwithstanding the existence of an effective alternative remedy by way of an Appeal under Section 31 of the Act, these Writ Petitions is entertained on the ground that there has been a violation of principles of natural justice vitiating the impugned assessment orders.
Matters remitted to the 1st respondent to pass fresh Assessment Orders for each of the Assessment Years in question, after affording reasonable time to the petitioner to submit all the documents and also after affording a personal hearing to the petitioner to put forth its objections before the 1st respondent - petition allowed by way of remand.
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2020 (6) TMI 389
Maintainability of petition - existence of alternative remedy - Levy of CST on entire turnover - taxable, export as well as exempted sales - petitioner contends that the 1st respondent adopted the gross turnover as ₹ 9475,63,11,243/- and proposed to levy tax at 14.5% on the entire turnover without considering the exemptions claimed towards direct exports, branch transfer and CST collections under the CST Act - Personal hearing not attended - HELD THAT:- The petitioner’s Representative could not be blamed for not attending the personal hearing given by the 1st respondent due to such lockdown, more particularly when the online response also could not be submitted due to technical glitches on the portal of the 1st respondent - However, since the time fixed for making the assessment was to expire on 31.03.2020, without providing a personal hearing as sought by the petitioner on the phone on 31.03.2020, the impugned order was passed.
It appears that on account of lack of time in view of the impending lapsing of limitation for making the assessment, not only was the petitioner denied proper opportunity to personally represent its case before the 1st respondent but also errors might have crept into the order of the 1st respondent passed on 31.03.2020 - a proper opportunity was denied to the petitioner to represent its case and there has been violation of principles of natural justice inasmuch as personal hearings were fixed on 16.03.2020 for the first time during lockdown period disabling the petitioner and causing serious prejudice to the petitioner.
The existence of alternative remedy of appeal available to the petitioner to challenge the impugned order of Assessment dt.31.03.2020 cannot be a bar for the petitioner to avail the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India - the matter is remitted back to the 1st respondent to consider the matter afresh after giving personal hearing to the petitioner and to decide within a period of two (2) months from the date of receipt of a copy of this order - Petition allowed by way of remand.
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2020 (6) TMI 388
Stay of collection of the disputed tax - Section 31(3)(c) of the A.P. VAT Act, 2005 - It is contended that pending disposal of the appeal by the Tribunal, the respondents are insisting the petitioner on paying the balance disputed tax dues and that is why the petitioner has approached this Court by filing the present Writ Petition - HELD THAT:- Since it is not disputed by the learned Special Counsel for Commercial Tax that petitioner had already deposited 2/3rds of the disputed tax, and since admittedly appeal filed by petitioner before the Telangana VAT Tribunal is still pending and if the balance tax is also permitted to be receoved, the very appeal would become infructuous, we deem it appropriate to dispose of this Writ Petition by directing stay of recovery of balance of the disputed tax pending disposal of T.A.No.98 of 2019 by the Telangana VAT Appellate Tribunal, Hyderabad.
Petition disposed off.
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2020 (6) TMI 387
Compensation on account of death caused by accident - HELD THAT:- On a perusal of the documentary evidence on record i.e. the ITRs for the assessment years 2005-06 and 2006-07, filed prior to the death of the deceased, which reflect the income of approximately ₹ 1,00,000 p.a. (as assessed by the MACT in its Award dated 22.12.2009), we make this the basis for computing the compensation payable to the Claimants - We award future prospects @40% of the income of the deceased. Given the fact that the deceased left behind five dependents, the deduction towards his personal expenses would be 1/4th.
Even though the Claimants/Appellants herein did not file an Appeal against the Award dated 22.12.2009 passed by the MACT before the High Court, we deem it appropriate to enhance the compensation by exercising our jurisdiction under Article 142 of the Constitution of India in order to do complete justice between the parties - The Respondent – Insurance Company is directed to pay the compensation awarded to the Appellants within a period of twelve weeks’ from the date of this judgment, after adjusting any amount which may have been paid. The amount payable to the Appellants shall carry Interest @ 7.5% p.a. from the date of filing the claim petition till the date of realization.
Appeal disposed off.
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2020 (6) TMI 386
Maintainability of appeal - existence of alternative remedy - appealable order or not - Section 112 of the C.G.S.T. Act, 2017 - HELD THAT:- It is not disputed that the impugned orders are appealable under Section 112 of the C.G.S.T. Act, 2017. The appeal is to be filed within 90 days from the date on which the order sought to be appealed is communicated to the person preferring the appeal - The instant petition has been filed by-passing the remedy of appeal under Section 112 of the Act on the ground that the appellate tribunal has not been constituted till date.
The instant petition is disposed of by providing that the petitioner can invoke the remedy of filing appeal before the Tribunal in terms of the provisions of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019.
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2020 (6) TMI 385
Transition of available Input Tax Credit - revision of Form GST TRAN-1 - electronic credit ledger under the GST laws does not reflect the entire credit - HELD THAT:- The exactness required in compliance of tax provisions should not be construed so rigidly that permissible flexibility is completely disregarded. In effect, the ITC has been expropriated without any lawful sanction. The ITC that was shown in the returns under the existing laws were taxes that stood paid to the respective Governments for goods or services and were available for adjustment or utilization in accordance with law. Now, on account of a clerical mistake the said taxes paid are being appropriated, without cause, putting the Petitioner in serious jeopardy by subjecting it to further taxation under GST without the benefit of ITC. The case before us demonstrates how the tax department has miserably fallen short of the expectation. It is regrettable that Respondents have failed to address the basic and fundamental problem faced by the Petitioner that occurred while filing a Form, seemingly on account of a bona fide or inadvertent mistake. Instead of offering a restitutive solution they have stonewalled all the attempts made by the Petitioner The injustice and prejudice caused to the Petitioner is profound and it’s disillusionment and despair is evident.
It cannot be upheld the stand of the respondent which is founded on some illogical understanding of the Rules. We have time and again made adverse remarks on the procedural working of the GST system in several decisions. We may just add that we do not derive any pleasure when we make such observations, as comments of the Court affect the reputation of the administration in the country. Such remarks are made only when we are constrained to do so.
The case before us is one where there is a complete lack of understanding and fairness on the part of the Tax Department. The fact that Respondents have done nothing to solve the problem faced by the Petitioner, fueled with the adamant stand before us, contributes to skepticism of GST technical infrastructure, which we feel should and can be easily avoided. Only if Respondents were to engage with the taxpayers with a genuine intention to solve the problems, confidence in the system can be built up and such matters would not reach courts.
Petitioner is permitted to revise TRAN-1 Form on or before 30.06.2020 and transition the entire ITC, subject to verification by the Respondents - petition allowed.
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2020 (6) TMI 384
Release of seized goods alongwith vehicle - seizure on the ground that the driver of the conveyance was not able to produce a valid E-way bill - HELD THAT:- In view of the fact that there is a statutory appeal provided against the impugned order, the writ applicant should avail the alternative remedy and prefer an appropriate appeal if he deems fit.
At this stage, it is clarified that if the statutory appeal under Section 107 is preferred by the writ applicant and if the appeal is not disposed of at the earliest or in near future, it is always open for the writ applicant to prefer an application under Section 67(6) of the Act for interim release of the conveyance pending the final adjudication of the statutory appeal.
Application disposed off.
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2020 (6) TMI 383
Release of seized goods alongwith vehicle - seizure only for the discrepancy in the e-way bill that the vehicle number was not correlated - HELD THAT:- We are of the opinion that we should not interfere with the impugned show cause notice issued by the authority under Section 130 of the Act. We are of the view that the authority should be permitted to adjudicate the show cause notice in accordance with law. However, we deem fit to take into consideration the fact that the goods involved in the present litigation is a consignment of Tobacco and with the onset of monsoon the goods are likely to get damaged.
The writ applicant to deposit an amount of ₹ 10,00,000/- with the concerned authority towards tax and penalty. To secure the interest of the State, we also direct the writ applicant to furnish Bank Guarantee of ₹ 7,00,000/- that is the value of the goods. On deposit of the amount of ₹ 10,00,000/- and furnishing of a Bank Guarantee to the tune of ₹ 7,00,000/- of a nationalized bank, the authority concerned shall release the goods and the vehicle at the earliest.
Application disposed off.
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2020 (6) TMI 382
Permission to petitioner to file revision of GST TRAN-1 - section 140(3) of the Central Goods and Services Tax Act, 2017 - while the case of the petitioner is that mistake committed was procedural, the court considers appropriate not to entertain the petition at this stage - HELD THAT:- Whether there is a procedural lapse or otherwise, is the aspects to be gone into and decided by the competent authority, to which the petitioner has already addressed communication way back in August and September, 2019. The authority of the respondents department has not decided to respond to the same so far. It is only after the decision is rendered by the authorities, it will be open for the petitioner to take a further legal recourse in accordance with law - While not entertaining this petition and not touching the merit part of the case of the petitioner, the respondent Nos. 6 to 8 are directed to respond to the communication of the petitioner within four weeks from the date of receipt of this order.
Petition disposed off.
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2020 (6) TMI 381
Permission to petitioner to file revision of GST TRAN-1 - section 140(3) of the Central Goods and Services Tax Act, 2017 - while the case of the petitioner is that mistake committed was procedural, the court considers appropriate not to entertain the petition at this stage - HELD THAT:- Whether there is a procedural lapse or otherwise, is the aspects to be gone into and decided by the competent authority, to which the petitioner has already addressed communication way back in August and September, 2019. The authority of the respondents department has not decided to respond to the same so far. It is only after the decision is rendered by the authorities, it will be open for the petitioner to take a further legal recourse in accordance with law - While not entertaining this petition and not touching the merit part of the case of the petitioner, the respondent Nos. 6 to 8 are directed to respond to the communication of the petitioner within four weeks from the date of receipt of this order.
Petition disposed off.
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2020 (6) TMI 380
Release of detained goods alongwith vehicle - Section 129 (3) of the CGST Act/SGST Act - HELD THAT:- While permitting the petitioner to serve the respondent nos. 2 and 3 both by an e-mode, considering the issue of closure of the business in the pandemic for a long time and also bearing in mind the material which is being carried from Goa Unit of the petitioner to Sanand, Ahmedabad, for preparing one of the necessaries and also noticing that there are two units within the state of Gujarat of the Petitioner registered with the Respondent authorities, we are inclined to accede to the request of release of the goods with truck bearing No. GJ-01-CU-7154 detained in exercise of the powers, pending the service of notice and admission of this matter, subject to the deposit of the entire amount of tax of ₹ 14,53,788/- with the department within three days and also the deposit of ₹ 1.45 lakhs, 10% of amount of penalty for now with the department, by way of a bank guarantee, initially for the period of 90 days or till the pendency of Petition, whichever is later.
On deposit of total amount of tax and furnishing of the bank guarantee with the department within three days as directed, the release of the truck shall be made within 48 hours, with the goods subject to the furnishing of proof of such amount with the respondent no. 2 or 3.
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9911796707
