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Showing 181 to 200 of 1570 Records

• 2024 (5) TMI 1390
  

  Levy of penalty u/s 271AAB - Defective Notice for Penalty Proceedings - show cause only mentioned the offence committed by the assessee by mentioning that assessee has concealed the particulars of income or furnished inaccurate particulars of income show cause notice is meant for initiating penalty proceedings u/s 271(1)(c) as AO has used the same show cause notice in the same format for initiating penalty proceedings u/s 271AA - whether the assessee has concealed the particulars of income or had furnished inaccurate particulars of income?

  HELD THAT:- There is a greater onus casted on the Revenue to specifically mention in the show cause notice itself as to what offence the assessee has committed and also to mention the rate of penalty that is sought to be levied by the AO on the assessee i.e., 10% or 20% or 30% or 60% of undisclosed income, as the case may be. If none of these preliminary informations are mentioned in the show cause notice, then the show cause notice issued by the Ld. AO becomes completely defective and consequentially fatal and would vitiate the entire penalty proceedings.

  This issue, in any case, is no longer res integra in view of the decision of Kolkata Tribunal in the case of Sushil Kumar Paul [2022 (12) TMI 1008 - ITAT KOLKATA] wherein as held there is no mention about various conditions provided u/s 271AAB - AO has very casually used the proforma used for issuing notice before levying penalty u/s 271(1)(c) of the Act for the concealment of income or furnishing of inaccurate particulars of income. Except mentioning the section 271AAB of the Act in the notice, it does not talk anything about the provisions of section 271AAB. Therefore, certainly such notice has a fatal error and technically is not a correct notice - Decided in favour of assessee.

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• 2024 (5) TMI 1389
  

  Reversal of proportional credit on clearance of 27923531 kgs of ‘medical grade’ oxygen - non-maintenance of separate records as prescribed in rule 6 of CENVAT Credit Rules, 2004 - HELD THAT:- In re Mercedes Benz India (P) Ltd [2015 (8) TMI 24 - CESTAT MUMBAI] pertaining to disputed credit to be reversed between April 2011 to February 2012, and intimated reversal in March 2012, the Tribunal had held that 'Rule 6 of the Cenvat Credit Rules is not enacted to extract illegal amount from the assessee. The main objective of the Rule 6 is to ensure that the assessee should not avail the Cenvat Credit in respect of input or input services which are used in or in relation to the manufacture of the exempted goods or for exempted services. If this is the objective then at the most amount which is to be recovered shall not be in any case more than Cenvat Credit attributed to the input or input services used in the exempted goods. '

  There is no merit in the impugned order which is set aside - Appeal of assessee allowed.

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• 2024 (5) TMI 1388
  

  Jurisdiction of Sub-Registrar to refuse registration of a sale certificate due to pending Income Tax dues against the borrowers - Sale certificate - Whether the SARFAESI Act has precedence over other statutory dues, including those of the Income Tax Department - Petitioner purchased a property in a public auction conducted by Canara Bank (3rd respondent) under the SARFAESI Act - Sub-Registrar refused registration citing pending Income Tax dues against the borrowers.

  HELD THAT:- The Apex Court in the case of Punjab National Bank v. Union of India [2022 (2) TMI 1171 - SUPREME COURT], considering the entire spectrum of law holds that dues of the secured creditor, the Bank or any other financial institution will have priority over the dues of the Central Excise Department under the Central Excise Act. The Apex Court holds the provisions of the SARFAESI Act, 2002 will have overriding effect on the provisions of the Central Excise Act. If the Central Excise Act found in the judgment of the Apex Court is paraphrased with that of the Income-Tax Department/dues under the Income-Tax Act, the reasons so rendered by the Apex Court would become applicable to the facts of the case at hand as well. The Sub-Registrar, though not in writing, orally refused to register the document on the score that dues of the Income-Tax Department are pending against the borrowers, is a reason which is unavailable to the Sub-Registrar, even if it were to be in writing.

  The Sub-Registrar can act only within the four corners of the Registration Act and the Registration Rules framed by the State.

  The Sub-Registrars refuse to register the documents - the documents could be sale certificates or documents creating charge over the property. The Sub-Registrars, on grounds that are not available to them, refuse to register the documents, sometimes on the score that the software in the Registration Department or the Sub-Registrar's office is not made to be in tune with the necessities of registration of documents of the Banks and therefore, it is not registered and in certain cases, it is the statutory dues by the borrower or the holder of the document, which are not cleared and therefore, would not be registered. All these are reasons beyond the statute. Unless the Sub-Registrar notices any violation as obtaining under Rule 171 of the Rules, the Sub-Registrar does not have jurisdiction to refuse registration of a document.

  Therefore, it is necessary for the State Government to issue necessary circular in terms of Rule 171 of the Rules and the law laid down by the Apex Court in the judgment supra, so that every person who goes for registration of documents should not be denied registration except in accordance with the observations supra as acts of Sub-Registrars are driving every person who is denied registration to the doors of this Court unnecessarily and if the Sub-Registrar would not register a document, if it is found to be in tune with law, the delay in registration would be attributable only to those Sub-Registrars, who will be saddled with exemplary costs when such cases are brought before this Court seeking a direction for registration of a document.

  Thus, writ petition is allowed.

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• 2024 (5) TMI 1387
  

  Violation of principles of Natural Justice - impugned order does not take into consideration the reply submitted by the Petitioner - cryptic order - demand including penalty u/s 73 of CGST Act - HELD THAT:- The observation in the impugned order dated 24.04.2024 is not sustainable for the reasons that the reply dated 12.01.2024 filed by the Petitioner is a detailed reply with supporting documents. Proper Officer had to at least consider the reply on merits and then form an opinion. He merely held that the reply is not satisfactory and taxpayer has not attached sufficient documents in support of his reply which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the petitioner.

  Further, if the Proper Officer was of the view that any further details were required, the same could have been specifically sought from the Petitioner. However, the record does not reflect that any such opportunity was given to the Petitioner to clarify its reply or furnish further documents/details - the impugned order dated 24.04.2024 cannot be sustained and is set aside. The Show Cause Notice is remitted to the Proper Officer for re-adjudication.

  Petition disposed off by way of remand.

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• 2024 (5) TMI 1386
  

  Demand with penalty u/s 73 of the Central Goods and Services Tax Act, 2017 - impugned order does not take into consideration the reply submitted by the Petitioner and is a cryptic order - violation of principles of natural justice - HELD THAT:- The principal grounds for creating the demand is that taxpayer has not uploaded supporting documents in respect of cancelled dealer despite sufficient opportunity being given. However, it may be noticed that petitioner had uploaded several documents as well as details of transactions done with the cancelled dealer - As per the petitioner the transactions were bona fide and genuine and were carried out when the registration was valid. The registration of the dealer has been cancelled subsequently retrospectively.

  The observation in the impugned order dated 24.04.2024 is not sustainable for the reasons that the reply dated 04.04.2024 filed by the Petitioner is a detailed reply with supporting documents. Proper Officer had to at least consider the reply on merits and then form an opinion. He merely held that the taxpayer has not uploaded supporting documents in respect of cancelled dealer which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the petitioner.

  The impugned order dated 24.04.2024 cannot be sustained and is set aside. The Show Cause Notice is remitted to the Proper Officer for re-adjudication - Petition disposed off by way of remand.

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• 2024 (5) TMI 1385
  

  Violation of principles of natural justice - SCN does not specify any cogent reason - Retrospective cancellation of GST registration of the petitioner - HELD THAT:- The SCN and the impugned order are bereft of any details. Neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation.

  In terms of Section 29 (2) of the Central Goods and Services Tax Act, 2017, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. The registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria - it is not considered apposite to examine this aspect but assuming that the respondent’s contention in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer’s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.

  The order dated 23.07.2022 cannot be sustained and is accordingly set aside. The GST registration of the petitioner is restored - petition disposed off.

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• 2024 (5) TMI 1384
  

  Violation of principles of natural justice - SCN does not specify any cogent reason - Retrospective cancellation of GST registration of the petitioner - HELD THAT:- The SCN and the impugned order are bereft of any details. Neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation.

  In terms of Section 29 (2) of the Central Goods and Services Tax Act, 2017, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. The registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria - it is not considered apposite to examine this aspect but assuming that the respondent’s contention in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer’s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.

  The order dated 05.08.2022 cannot be sustained and is accordingly set aside. The GST registration of the petitioner is restored - petition disposed off.

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• 2024 (5) TMI 1383
  

  Order u/s 73 of the Central Goods and Services Tax Act, 2017 - petitioner submits that the impugned order was passed even prior to the stipulated date of filing the response to the show cause notice - HELD THAT:- Perusal of the details of personal hearing and due dates for filing of replies, as contained in the show cause notice dated 05.12.2023 shows that reply was to be submitted by 05.01.2024. Even before the due date for filing reply, the impugned order dated 29.12.2023 has been passed creating a demand against the petitioner - Clearly, the proper officer could not have adjudicated the show cause notice even prior to the stipulated date for filing response.

  The matter is remitted to the proper officer for re-adjudication of the show cause notice. Petitioner shall file response to the said Show Cause Notice within 30 days. Thereafter, the proper officer shall adjudicate the show cause notice in accordance with law after giving an opportunity of personal hearing to the petitioner. The Show Cause Notice be disposed of within three months of filing of response by the petitioner.

  Petition disposed off by way of remand.

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• 2024 (5) TMI 1382
  

  Order passed u/s 73 of the Central Goods and Services Tax Act, 2017 - failure to filed response to SCN - HELD THAT:- The impugned order, however, after recording the narration records that demand as ex-parte is created - As per the petitioner, he was not aware of the proceedings as the GST registration stood cancelled w.e.f. 18.06.2021 and all communication for the said proceedings were uploaded on the GST portal.

  Since the only reason for passing the impugned order is that the petitioner had not filed any reply/explanation, one opportunity needs to be granted to the petitioner to respond to the Show Cause Notice. The matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order dated 08.12.2023 is set aside.

  Petition disposed off by way of remand.

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• 2024 (5) TMI 1381
  

  Violation of principles of natural justice - the impugned order does not take into consideration the replies submitted by the Petitioner - cryptic order - demand including penalty u/s 73 of CGST Act - HELD THAT:- The observation in the impugned order dated 29.04.2024 is not sustainable for the reasons that the replies dated 17.01.2024 and 27.02.2024 filed by the Petitioner are detailed replies with supporting documents. Proper Officer had to at least consider the reply on merits and then form an opinion. He merely held that the reply is not properly replied/filed without any justification which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the petitioner.

  Further, if the Proper Officer was of the view that any further details were required, the same could have been specifically sought from the Petitioner. However, the record does not reflect that any such opportunity was given to the Petitioner to clarify its reply or furnish further documents/details.

  The impugned order dated 29.04.2024 cannot be sustained and is set aside. The Show Cause Notice is remitted to the Proper Officer for re-adjudication - Petition disposed off by way of remand.

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• 2024 (5) TMI 1380
  

  Violation of principles of natural justice - petitioner had no opportunity to object - Retrospective cancellation of GST registration of the petitioner - HELD THAT:- The Show Cause Notice and the impugned order are also bereft of any details. Neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation. Accordingly, the same cannot be sustained.

  In terms of Section 29(2) of the Act, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria - it is not considered apposite to examine this aspect but assuming that the respondent’s contention is required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer's registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.

  The Petitioner does not seek to carry on business or continue the registration, the impugned order dated 27.01.2021 is modified to the limited extent that registration shall now be treated as cancelled with effect from 06.05.2019 i.e., the date when petitioner filed an application seeking cancellation of GST registration and the registration was suspended - Petitioner shall make the necessary compliances as required by Section 29 of the Central Goods and Services Tax Act, 2017.

  Petition disposed off.

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• 2024 (5) TMI 1379
  

  Order passed u/s 73 of the Central Goods and Services Tax Act, 2017 - petitioner was unaware of the proceedings and was unable to furnish a reply to the impugned Show Cause Notice, due to maternity leave - HELD THAT:- The petitioner was not aware of the proceedings due to his accountant being on maternity leave.

  Keeping in view the peculiar facts of the present case and since the only reason for passing the impugned order is that petitioner had not filed any reply/explanation, one opportunity needs to be granted to the petitioner to respond to the Show Cause Notice. The matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order dated 17.04.2024 is set aside.

  Petition is disposed of by way of remand.

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• 2024 (5) TMI 1378
  

  Violation of statutory law and guidelines - forced to make excessive deposit - threat of arrest - HELD THAT:- The petitioner prays for and is granted six weeks' time to file counter affidavit. Petitioner shall have a week thereafter for filing rejoinder affidavit.

  List in the week commencing 12th August, 2024.

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• 2024 (5) TMI 1377
  

  Violation of principles of natural justice - SCN and impugned order are bereft of any details - Maintainability of appeal - appeal dismissed solely on the ground that the same is barred by limitation - retrospective cancellation of GST registration of the Petitioner - HELD THAT:- It is noticed that the Show Cause Notice and the impugned order are bereft of any details. Neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation. Accordingly, the same cannot be sustained.

  In terms of Section 29 (2) of the Act, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria - it is not deemed apposite to examine this aspect but assuming that the respondent’s contention in required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer's registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.

  In view of the fact that the Petitioner does not wish to carry on business or continue with the registration, impugned order dated 04.10.2019 is modified to the limited extent that registration shall now be treated as cancelled with effect from 19.09.2019 i.e., the date when Show Cause Notice seeking cancellation of GST registration was issued.

  Petition disposed off.

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• 2024 (5) TMI 1376
  

  Extension of time limitation - Validity of SCN issued u/s 73(1) of the WBGST & CGST Act, 2017 - seeking stay of SCN - HELD THAT:- Taking into consideration the fact that a jurisdictional issue has been raised and a prima facie case has been made out by the petitioner, however, considering the fact that fiscal policy of the State is involved, it is not proposed to stay the impugned show cause notice. The respondents shall continue with the impugned proceeding but the final order, if passed shall not be given effect to nor the same shall be uploaded in the portal, without the leave of this Court.

  Further taking into consideration the fact that by reason of challenge thrown by the petitioner to the show cause notice since no response had been filed by the petitioner, time to file the response by the petitioner is extended by a period of four weeks from date. If the petitioner files its response within the afforded extended period, the same shall be taken into consideration by the proper officer - The proper officer being otherwise obliged to, shall afford an opportunity of hearing to the petitioner in connection with the response filed by the petitioner.

  List this matter under the heading “hearing” in the combined monthly list of August 2024.

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• 2024 (5) TMI 1375
  

  Challenge to order u/s 73 of the Central Goods and Services Tax Act, 2017 - ex-parte demand is created - violation of principles of natural justice - HELD THAT:- The only reason for passing the impugned order is that petitioner had not filed any reply to the Show Cause Notice. Considering the Petitioner did not have access to the portal due to the GST registration being cancelled, one more opportunity needs to be granted to the Petitioner to respond to the Show Cause Notice.

  The impugned order dated 28.12.2023 is set aside. The Show Cause Notice is remitted to the Proper Officer for re-adjudication - petition is disposed off by way of remand.

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• 2024 (5) TMI 1374
  

  Rejection of appellate order on the ground of delay - cancellation of registration - HELD THAT:- Admittedly, the appellate remedy was availed with gross delay.

  Section 107 of the Bihar Goods and Services Tax Act, 2017 (BGST Act) permits an appeal to be filed within three months and also apply for delay condonation with satisfactory reasons within a further period of one month - taking into account the saving of limitation granted by the Hon’ble Supreme Court in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (3) TMI 497 - SC ORDER], therein, due to the pandemic situation limitation was saved between 15.03.2020 till 28.02.2022. It was also directed that an appeal could be filed within ninety days from 01.03.2022.

  There are no reason to invoke the extraordinary jurisdiction under Article 226, especially since it is not a measure to be employed where there are alternate remedies available and the assessee has not been diligent in availing such alternate remedies within the stipulated time. The law favours the diligent and not the indolent.

  Petition dismissed.

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• 2024 (5) TMI 1373
  

  Violation of principles of natural justice - Non-speaking order - Jurisdiction of respondent No. 3 for passing the impugned order - Maintainability of petition - availability of alternative remedy - Invocation of Section 107 of KGST Act - Exemption from payment of tax.

  Violation of principles of natural justice - HELD THAT:- Admittedly, a show cause notice as required under law was issued before passing the impugned order and the petitioner has submitted his reply to the said show cause notice. The impugned order was came to be passed considering the reply given by the petitioner - The contention of the petitioner that it is not a speaking order also cannot be accepted as respondent No. 3 has discussed at length about the facts of the case, defence taken by the petitioner and also the reasons are assigned to arrive at a conclusion that the petitioner is liable to pay tax - Therefore, the contention of the petitioner that the order is not a speaking order that there is violation of principles of natural justice, cannot be accepted.

  Jurisdiction of respondent No. 3 for passing the impugned order - HELD THAT:- It is respondent No. 3-the Assistant Commissioner of Commercial Taxes who is authority to pass the impugned order under KGST Act. Therefore, the contention taken by the petitioner that, respondent No. 3 had no jurisdiction to pass order also cannot be accepted.

  Maintainability of petition - availability of alternative remedy - Invocation of Section 107 of KGST Act - HELD THAT:- There are no justification for this Court to invoke the writ jurisdiction. Even though an attempt is made to contend that there is violation of principles of natural justice and the order is passed without jurisdiction - Unfortunately, in each and every case, such grounds are urged but it can be a ground to invoke the writ jurisdiction of this Court by bypassing the statutory remedy which is available for the petitioner. When the legislature in their wisdom make provisions to challenge the order passed under the enactment, simply because Section 107 of the Act compels the petitioner to deposit 10% of the disputed amount of tax as referred to under Section 107 (6) (b) of the KGST Act, such effective remedy cannot be bypassed. If this Court starts entertaining the writ petition on such flimsy ground, it will definitely have an effect of bypassing the statutory authorities to assume jurisdiction.

  The petition is dismissed.

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• 2024 (5) TMI 1372
  

  Determination of tax and penalty - original tax invoice not carried while transporting goods - Rule 138-A of the SGST and Section 68 of the CGST - HELD THAT:- Reliance placed on the decision of this Court in M/S. DIVYA JYOTHI PETROCHEMICALS CO., VERSUS THE JOINT COMMISSIONER OF COMMERCIAL TAXES – APPEALS, DHARWAD, THE COMMERCIAL TAX OFFICER (ENFORCEMENT), MADHUGIRI, THE REGISTRAR, KARNATAKA APPELLATE TRIBUNAL BENGALURU [2024 (3) TMI 549 - KARNATAKA HIGH COURT]. In support of his contention that the petition is liable to be allowed.

  In M/s Divya Jyothi Petrochemicals Co. a similar contention was raised by the petitioner therein. The same was considered in the light of the Rule 138-A of the SGST and Section 68 of the CGST and Rule 48 of the CGST and an opinion was formed that as per Rule 48(1)(b) of the CGST, it is only the duplicate copy which is meant for transporter and the triplicate copy is meant for supplier as per clause (c). It is therefore, held that the transporter is not required to carry the original tax invoice, but the law mandates him to carry the duplicate copy.

  There are no reason to form a different opinion. Under such circumstances, it is the contention taken by respondents that the petitioner is liable to pay tax and penalty, as the transporter had not carried the original tax invoice cannot be accepted. It is stated that petitioner is levied with the double tax as he is already paid tax as required to be paid and once again he was compelled to pay tax with penalty and therefore, the same is liable to be refunded.

  Petition allowed.

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• 2024 (5) TMI 1371
  

  Confirmation of demand inclusive of the penalty and interest - failure to reply to notices - HELD THAT:- The impugned order has been quashed.

  The case is remanded back to the fifth respondent to pass a fresh order on merits subject to the petitioner depositing 10% of the disputed tax with the fifth respondent. On such deposit being made and the reply being filed to the notices mentioned above by the petitioner within a period of 30 days from the date of receipt of a copy of this order, the fifth respondent shall pass a fresh order on merits and in accordance with law within a period of 30 days thereafter after hearing the petitioner.

  Petition allowed.

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