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Showing 101 to 120 of 1563 Records
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2024 (8) TMI 1463
Cancellation of GST registration of petitioner - non-payment of six consecutive GST returns - HELD THAT:- In view of the consensus arrived at between both the parties that matter is covered by the order in VIRENDER SINGH VERSUS COMMISSIONER UTTARAKHAND STATE GST COMMISSIONERATE DEHRADUN AND ORS. [2023 (2) TMI 1284 - UTTARAKHAND HIGH COURT], the present writ petition is also decided in terms of that order. Petitioner shall be at liberty to move an application for revocation of impugned cancellation order of his GST registration, under Section 30 of the Central GST Act, within three weeks.
In the said application, petitioner shall also furnish all the GST returns which he failed to submit and he will also deposit the outstanding tax and dues of Goods and Service Act with his application. If such application is made by the petitioner within three weeks from today, the said application of the petitioner shall be considered by the Competent Authority and the Competent Authority shall pass an appropriate order on the said application as per law, within four weeks thereafter.
The writ petition is disposed off.
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2024 (8) TMI 1462
Validity of reassessment proceedings - Period of limitation - HELD THAT:- Undisputedly, the notice u/s 148 of the Income Tax Act, 1961 was issued as far back as on 28 February 2023. We, consequently, find no justification to entertain this belated challenge.
Writ petition consequently stands dismissed with costs quantified at INR 20,000/-.
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2024 (8) TMI 1461
TP Adjustment - AMP expenditure incurred during the year by the assessee constitute an 'International Transaction' or not? - ITAT held that AMP (advertisement, market promotion) expenditure incurred does not constitute an 'International Transaction' - ITAT justification in holding that the 'Brightline Test' was not mandated in law, existence of an international transaction cannot be arrived at, from the clauses of an MDF agreement and also stating that the value of international transaction cannot be expanded beyond the reimbursements received under MDF agreement, on application of TNMM as the Most Appropriate Method at segmental/entity level, then individual component of AMP cannot be segregated for benchmarking and protective adjustment to preserve the interest of the revenue cannot be made in this case when the issue of AMP is still sub-judice and is pending before the Hon'ble Apex Court - HELD THAT:- Tribunal has rested its view on the decision rendered by this Court in Sony Ericsson Mobile Communications India Pvt. Ltd. [2015 (3) TMI 580 - DELHI HIGH COURT] The view so expressed is clearly unexceptionable.
Comparable selection - Assessee company is stated to be engaged in the business of manufacturing and distributing various Samsung products falling in the consumer electronics and home appliances category. We are, however, in the present appeal concerned with the trading segment of the aforesaid operations.
OTS E- Solutions Pvt. Ltd. was held as not comparable in subsequent assessment year i.e. A.Y. 2014-15 by the Tribunal. The functional dissimilarity is apparent on record and there are no changes in the present assessment year.
Redington India Ltd., company is engaged in distribution of IT products such as computers, printers, software storage systems and also a leading supply chain solutions provider for global brands of IT hardware and software product which appears to be similar to that of assessee functions. Therefore, we direct the TPO to look into the portfolio of this, company, and applying the filters, this comparable i.e. Redington India Limited may be included in the final comparable list.
HCL Infosystems Ltd. company is engaged in distribution of telecommunication and digital lifestyle products such as cellular phones, computers, printers, scanners etc. and hence functionally similar to the assessee company. Besides this fact, this company is allowed as comparable in A.Y. 2005-06 to 2011-12 by the Tribunal and there are no different facts emerging as relates to function conducted by the present assessment year to that of previous assessment years. Therefore, we direct the TPO to look into the portfolio of this company and applying the filters, this comparable i.e. HCL Infosystems. Limited may be included in the final comparable list.
No substantial question of law.
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2024 (8) TMI 1460
Direction to deposit a sum of Rs. 5.61 crores as amount payable in lieu of GST for allotment of a plot for long term lease - petitioner has deposited the amount under protest - HELD THAT:- The respondent No.2 should grant an opportunity of personal hearing to the petitioner, consider the objection raised by the petitioner and thereafter pass a reasoned order on the same within a period of eight weeks from date.
The petition is disposed off.
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2024 (8) TMI 1459
Violation of principles of natural justice - petitioner was not given any opportunity of hearing and in the column meant for mentioning the date, place and time of personal hearing “ the term NA” (not applicable) was mentioned - HELD THAT:- Initially, the notice under Section 61 was issued to the petitioner. The petitioner did not file any reply to the said notice. Later on notice under Section 73 was issued indicating that there was discrepancy in the GST return with regard to turn over as disclosed by the petitioner and to show cause as to why proceedings be not initiated against him.
The petitioner neither filed any reply nor did he seek time to file a reply nor prayed for adjournment of hearing. The petitioner even did not think it proper to seek personal hearing in the matter as no reply at all was submitted and notice under Section 73 was ignored.
It is not disputed by the petitioner that he did not choose to reply either to notice under Section 61 or to the notice under Section 73. When a show cause notice is issued the normal reaction of a businessman is to submit a reply and ask for a personal hearing. In case reply cannot be submitted in time such assessee can ask for extension of time indicating the difficulty that he faces in submitting and reply in time. Nothing was done by the assessee. He chose to ignore the show cause notice when opportunity of hearing was given, no interference in the procedure followed by the respondents is warranted in the writ jurisdiction.
Petition disposed off.
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2024 (8) TMI 1458
Authorisation of officers of State Tax or Central tax as proper officer - initiation of proceedings by another proper officer on the same subject matter - Wrongful availment of Input Tax Credit - HELD THAT:- The power of Inspection, Search, Seizure and Arrest as provided under Chapter XIV of the Central Goods and Services Tax Act, 2017 reflects that the power which is being exercised by the proper officer in terms of Sections 69, 70, 71 and 72 of the CGST Act are purely judicial in nature. In terms of Section 70 (2) of the HGST Act, every inquiry shall be deemed to be a judicial proceedings. Issuance of show cause notice is the point of commencement of any legal proceedings. Thus, once a proper officer has initiated any proceedings as per Section 6 (2) (B) of the Act, on a subject matter, no proceedings can be initiated by another proper officer on the same subject matter.
The proper officer, who has initiated proceedings in the present case, the State Tax Officer, would be empowered to summon persons to give evidence and produce documents, while the other tax statutes provide for transfer of cases from one officer to another. The scheme of the Central Goods and Services Tax Act, 2017 or the Haryana Goods and Services Tax Act, 2017, no where provides for transferring the proceedings from one proper officer to another.
Merely because the DGGI has information relating to similar fraudulent availment of ITC by other firms who may be related to the firm against which the proceedings have been initiated under Section 74 of the HGST Act by the State authority itself would not be a sufficient ground to presume that the State GST authority would not be able to conduct the proceedings or examine the culpability of the firm against whom proceedings under Section 74 of the HGST Act have been initiated. Merely because there may be other firm also against whom proceedings are initiated, there is no concept of joint proceedings.
The import of the circular dated 05.10.2018 is to be understood to mean that when an inquiry is conducted by a proper officer of the State and investigation is required to be done by the Central Tax Officer, the Central Tax Officer would exercise the said power for the purpose of investigation - There is no reason to believe that the proceedings in any manner would be hampered or would suffer as against the company/ firm against which proceedings have been initiated under Section 74 of the Act.
The entire proceedings under the GST Act for investigation relating to fraudulent availment of ITC are related to a particular firm which is registered in State of Haryana. If there is another firm which has also been found to be availing fraudulent ITC, the Central Government authorities are not precluded from taking action against that firm. Thus, independent action against some other firm would not impede the proceedings already initiated by the State Tax Authorities against the present firm. Neither it can be said to be creating any complication or multiplicity of proceedings - Any new information which the respondents may have gathered relating to fraudulent availment or passing on, can always be informed to the authority who is already conducting the investigation and inquiry and proceedings under Section 74 (1) of the Act.
The proper officer, namely, Excise & Taxation Officer, Shahbad had no jurisdiction to transfer the proceedings to the Central Government vide letter dated 08.07.2020 and 15.03.2022 and the same are quashed and set aside - the Excise & Taxation Officer-cum-proper officer, Shahbad, shall continue with the proceedings initiated under Section 74(1) of the HGST Act against the petitioner-company and shall also examine all the aspects which may have been revealed relating to evasion of tax or availment of ITC after 22.07.2019.
Petition allowed.
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2024 (8) TMI 1457
Violation of principles of natural justice - respondent No.2 failed to consider all the documents on record including the submission made by the petitioner - Time limitation - suppression of facts or not - HELD THAT:- Consideration on both questions of fact and law and that the petitioner has earlier also approached the appellate forum, it is opined that the petitioner should first exhaust the statutory remedy before approaching this Court.
The writ petition is disposed of with liberty to the petitioner to approach the appellate authority within a period of 10(ten) days from today. Petitioner is at liberty to raise all grounds of fact and law before the Appellate Authority.
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2024 (8) TMI 1456
Doctrine of merger - Cancellation of the registration of the petitioner - no reason has been assigned for cancellation of the registration - Violation of principles of natural justice - HELD THAT:- Admittedly from the perusal of the order dated 15.02.2023. it transpires that no reason has been assigned for cancellation of the registration of the petitioner. The order of cancellation is in the teeth of various judgments of this Court as also referred to above. The reasons are heart and soul of any judicial and administrative order. In absence of the same the order cannot be justified in the eye of law. Further since the appeal of the petitioner was dismissed on the ground of delay, this Court finds that the doctrine of merger will have no application considering the facts and circumstances of the present case.
The purpose of inserting the provision under Rule 23 of Rules, 2017 as to service of notice upon the assessee is to provide an opportunity to him to move a revocation application so as to save the registration from being cancelled permanently and his business being hampered.
The coordinate Bench of this Court in M/s Ansari Constructions Vs. Additional Commissioner Central Goods and Services Tax (Appeals) and two others [2020 (12) TMI 266 - ALLAHABAD HIGH COURT] while dealing with Section 29 of the GST, 2017 and Rule 23 of Rules, 2017, has held that once the Department has accepted the return and there remains no dues, the Department should not obstruct the business of an assessee.
The order dated 15.02.2023 passed by the Assistant Commissioner, respondent no.3 is hereby quashed - it is directed that the petitioner shall file reply to the show cause notice within a period of three weeks from today.
Petition allowed.
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2024 (8) TMI 1455
Challenge to order passed by the respondent No.2 under Section 74 read with Section 122 of the Uttar Pradesh Goods and Services Tax Act, 2017 - HELD THAT:- The factual matrix is such that the matter is squarely covered by a coordinate Bench judgment of this Court in MAHAVEER TRADING COMPANY VERSUS DEPUTY COMMISSIONER STATE TAX AND ANOTHER [2024 (3) TMI 334 - ALLAHABAD HIGH COURT] where it was held that 'the impugned order cannot be sustained in the eyes of law. It has been passed in gross violation of fundamental principles of natural justice. The self imposed bar of alternative remedy cannot be applied in such facts. If applied, it would be of no real use. In fact, it would be counter productive to the interest of justice.'
Upon a perusal of record, it appears that the factual matrix is very similar to one in Mahaveer Trading Company's case - there are no reason to take a different stand.
The impugned order dated June 21, 2024 is quashed and set-aside with a direction given to the officer concerned to grant the petitioner another opportunity of filing a fresh reply and thereafter fix a date of hearing and pass a reasoned order - Petition disposed off.
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2024 (8) TMI 1454
Challenge to impugned order and the impugned recovery notice passed by the respondent - petitioner submitted that the entire tax liability has been paid by the petitioner by reversal of wrongly availed ITC, and hence, the petitioner is not liable to pay any amount - principles of natural justice - HELD THAT:- It is not disputed that the petitioner has already paid the entire tax demand, and is only seeking an opportunity to file the reply to the show cause notice and personal hearing with respect to imposition of interest and the penalty, which the petitioner claims that they are not liable to pay. Even otherwise, as per the decision taken in the 53rd GST Council Meeting, the time is extended upto 31st March 2025. By applying the proposed amendment to Section 128(A) of the Act, the petitioner is not liable to pay any amount, since the enough amount is available in the ITC.
The order impugned herein is set aside and the matter is remanded to the respondent in respect of the assessment years 2017-2018 for fresh consideration. In view of the setting aside of the order dated 19.07.2021, the consequential final notice dated 05.05.2023 is also set-aside - Petition disposed off by way of remand.
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2024 (8) TMI 1453
Legality of SCN demanding IGST - Levy of GST on the activity of holding equity capital by the Holding Companies in the Petitioner company and on the ECB received by the Petitioner from AOSH - HELD THAT:- Though the petitioner submitted a response on 16.01.2023 specifically referring to the aforesaid Notification dated 28.06.2017, respondents have not considered nor referred to the same in the impugned Show cause Notice. Consequently, the same deserves to be quashed and matter remitted back to respondent No.3 for reconsideration after providing an opportunity to the petitioner to the limited extent of Table No. IX referred to in the impugned Show Cause Notice.
The impugned SCN insofar as it relates to proposal to levy/demand GST under the heading ‘Continuous Equity Share holding’ is hereby quashed - the impugned SCN relating to proposal to levy / demand GST under the heading ‘Value of the Credit Grant in Service determined as a service fee @1%’ is concerned, petitioner is reserved liberty to submit its response / reply to the same within a period of four weeks from today.
Petition allowed.
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2024 (8) TMI 1452
Violation of principles of natural justice - not providing of sufficient time to furnish the self declarations received from its suppliers - Challenge to assessment order - discrepancies in respect of the claim of ITC in GSTR-3B and GSTR-2A returns - petitioner had not furnished the required self-declarations of the suppliers - HELD THAT:- Having regard to the grievance expressed by the petitioner, this court is inclined to grant an opportunity to the petitioner to substantiate their claim, for which, the learned counsel appearing for the respondent has no serious objection. Accordingly, the order impugned herein is set aside and the matter is remanded to the respondent for reconsideration. The petitioner is directed to file all the self-declarations obtained from its suppliers within a period of two weeks from the date of receipt of this order.
The writ petition is disposed of.
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2024 (8) TMI 1451
Filing of belated returns on 07.07.2020, by which time the Input Tax Credit had partly expired - demand confirmed invoking Section 18(2) of the GST Act, 2017 - HELD THAT:- Clause 114 of the Finance (No.2) Bill, 2024 proposes to regularize the delay in filing Input Tax Credit by inserting Section 16(5) and 16(6) of the CGST Act, 2017. A similar exercise is expected in the context of TNGST Act, 2017 as well.
This Court has taken a consistent view under similar circumstances by quashing the Impugned Order and remitting the case back to the 2nd Respondent to pass a fresh order subject to the Finance Act being passed.
The impugned Order dated 16.10.2020 is set aside and the case is remitted back to the 2nd Respondent to pass a fresh order on merits and in accordance with law after the Finance Bill is passed and is enacted and the amendment to Section 16 of the respective GST Act - petition allowed by way of remand.
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2024 (8) TMI 1450
Cancellation of GST registration and seeking a direction to the respondent to restore the registration of the petitioner - delay of six months in filing the returns - valid reason for delay or not - HELD THAT:- This court is of the view that the reason assigned by the petitioner for non compliance with the relevant provisions of the Act within the time, appears to be bona fide.
The petitioner is directed to file returns for the period prior to the cancellation of registration, if not filed, together with tax dues along with interest thereon and the fee fixed for belated filing of returns within a period of forty five (45) days from the date of receipt of a copy of this order - the cancellation of Registration stands revoked subject to the fulfilment of the conditions imposed - petition disposed off.
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2024 (8) TMI 1449
Violation of principles of natural justice - sufficient opportunity to the petitioner to substantiate their claim - Wrongful availment of input tax credit on the purchase of motor vehicles as reflected from the statement in GSTR-2A - availment of wrongful input tax credit in the corresponding month of GSTR- 3B, which is in violation of section 17(5) of the TNGST Act 2017 / CGST Act 2017 - HELD THAT:- Admittedly, the respondent passed the order dated 17.08.2023, without providing reasonable opportunity to the petitioner to put forth their case and hence, the same is in violation of the principles of natural justice. According to the petitioner, the reason for not submitting their objections to the notice is that they were unaware of the notice issued through the GST Portal, and that, they would be able to establish their case if an opportunity is provided. It is also to be noted that the appeal filed by the petitioner as against the order impugned herein, was dismissed on 25.04.2024 solely on the ground that there is no provision under the Act to condone the delay.
Considering the facts and circumstances of the case and having regard to the submissions made by the learned counsel on either side, this court, in the interest of justice, is inclined to condone the delay in filing the appeal by the petitioner before the Appellate Authority and is accordingly, condoned.
Petition disposed off.
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2024 (8) TMI 1448
Levy of service tax - Real Estate Agent - sale of land which was intended to be purchased initially for a profit - HELD THAT:- The appellant is dealing in purchase and sale of the land during which some profit is earned. As per the department, the said profit is liable to be taxed as Real Estate Agent Service.
This issue has been considered in various judgments - reliance can be placed in NILESH T PATEL VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, RAJKOT [2023 (5) TMI 97 - CESTAT AHMEDABAD] where it was held that 'We find that under the same arrangement of activity of purchase of land from farmers / landowners and re-sale the same to Real Estate Developers, in the present case M/s. Sahara India Commercial Corporation Limited, this Tribunal has taken a view that under this arrangement the purchaser and re-seller of land cannot be treated as Real Estate Agent for charging service tax under the said category.'
Thus, the issue in hand stand settled in favour of the appellant, therefore, the demand is not sustainable - the impugned order is set aside - appeal allowed.
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2024 (8) TMI 1447
Refund of excise duty paid under protest - duty paid on by-product molasses, on its captive consumption (being exempted under Notification No. 67/95CE dated 16.3.1995, as amended) for the manufacture of exempted final products viz., Rectified Spirit and Extra Neutral Alcohol - duty paid during April 2008 to March 2010 - HELD THAT:- The issue has already been considered by this Tribunal in their own case in BANNARI SMMSN SUGAR LTD VERSUS C.C.,C.E. & S. T-MYSORE [2018 (2) TMI 813 - CESTAT BANGALORE].
Also taking note of the various aspects on the issue and precedent judgments and analysing the submissions made by both sides, recently this Tribunal in the case of M/S. NSL SUGARS LTD. (FORMERLY M/S. SCM SUGARS LTD.) VERSUS THE COMMISSIONER OF CENTRAL EXCISE MYSORE-I DIVISION, MYSORE [2024 (8) TMI 992 - CESTAT BANGALORE] following the judgment rendered in the case of GODAVARI SUGAR MILLS LTD. VERSUS COMMISSIONER OF C. EX., BELGAUM [2006 (11) TMI 497 - CESTAT, BANGALORE] has held 'relevant provisions of Rule 6 of CCR, 2004 has taken a view that credit on inputs availed and used in the manufacture of molasses, an input and intermediate by-product, which in turn is used in the manufacture of exempted final products viz., Ethyl Alcohol and denatured spirit, therefore, inputs attributable to the manufacture of molasses, on its reversal, is a sufficient compliance of Rule 6 of CCR, 2004; hence, eligible to the benefit of Notification No.67/95-CE dated 1.3.1995.'
The impugned order is set aside and the appeal is allowed.
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2024 (8) TMI 1446
Challenge to order passed u/s 73 of the Central Goods and Services Tax Act, 2017 - impugned SCN was uploaded on the portal in the category of ‘View Additional Notices & Orders’, which the petitioner claims was not easily accessible - It is contended that the show cause notices were required to be placed under the heading of ‘View Notices & Orders’ but the same was not done - violation of principles of natural justice - HELD THAT:- The GST Authorities have addressed the issue and have re-designed the portal to ensure that ‘View Notices’ tab and ‘View Additional Notices’ tab are placed adjacent to one another and under one heading - Admittedly, the impugned SCN was issued before the portal was re-designed.
The present petition is allowed and the impugned order is set aside - the matter is remanded to the concerned authority to adjudicate the impugned SCN afresh - petition allowed by way of remand.
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2024 (8) TMI 1445
Challenge to SCN issued u/s 73 of the Central Goods and Services Tax Act, 2017 (CGST Act)/Delhi Goods and Services Tax Act, 2017 - vires of N/N. 09/2023-Central Tax dated 31.03.2023 and N/N. 56/2023 dated 28.12.2023 - extension of time limit for passing an order u/s 73 (10) of the CGST Act - HELD THAT:- The respondents fairly submits that the petitioner may be granted one more opportunity to file a reply to the SCN.
The petitioner is satisfied with the same and states, on instructions, that he is not pressing the challenge to the Notifications (Notification No. 09/2023 dated 31.03.2023 and Notification No.56/2023 dated 28.12.2023).
The impugned order is set aside and the matter is remanded to the adjudicating authority for consideration afresh - petition disposed off by way of remand.
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2024 (8) TMI 1444
Seeking grant of bail - clandestine supply of branded TMT bars - evasion of GST - whole prosecution case is based upon the statement of Rippan Kansal and no incriminating article or evidence was discovered by the department from the search and inspection of the premises and office of the present applicant - reliability of statement - HELD THAT:- In Sanjay Chandra v. CBI [2011 (11) TMI 537 - SUPREME COURT], the Hon'ble Apex Court noticed that it was a case of fraud wherein by cheating and dishonestly inducing delivery of property by using as genuine a forged document was involved but the punishment for the offence was imprisonment for a term which may extend to seven years. The Hon'ble Apex Court held that it is, no doubt, true that the nature of the charge may be relevant but at the same time the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration.
Considering the entire facts and circumstances of the case and keeping in view the fact that in the instant matter trial has not started even yet and the complicity of the accused applicant is yet to be determined in trial and everything relevant to the matter is under control of the department itself and there is probably nothing on record to demonstrate that the applicant, if enlarged on bail, would in any way adversely affect the trial; further no final verdict of any Court / Authority for any criminal liability to the credit of the applicant has been brought to the notice of this Court and noticing that the alleged offence is punishable with the maximum period of imprisonment of five years, the applicant is in jail since 20.6.2024, without commenting upon the merits of the case, it is opined that the applicant has made out a case for bail.
Let the applicant be released on bail subject to fulfilment of conditions imposed - the bail application of the accused-applicant is allowed.
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