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Showing 241 to 260 of 1557 Records
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2025 (1) TMI 1318
Wrongful availment of CENVAT Credit - input service tax credit document did not contain the name and correct address of the assessee - invocation of extended period of limitation - HELD THAT:- The Original Authority has held that the manner in which the ineligible credit was availed by the appellant clearly pointed to the fact that the recovery of such credit warranted invocation of extended period of limitation. The above logic for invoking the extended period of limitation cannot be accepted, since the law does not provide for any implied or hidden aspects or on assumptions or presumptions; any action proposed to be taken should be specific based on the action or inaction on the part of the assessee. Hence, the manner of availing credit may invite actions which ultimately result in recovery of the same, but however, the same could only be done in the manner known or prescribed under law.
The Hon’ble Supreme Court in the case of LARSEN & TOUBRO LTD. VERSUS COMMISSIONER OF C. EX, PUNE’II [2007 (5) TMI 1 - SUPREME COURT] has clearly held that the extended period of limitation entails both civil and criminal consequences and therefore must be specifically stated in the SCN.
There is no specific allegation as to suppression or fraud in the SCN. There cannot also be any scope to allege so, since as early as 2012 itself, the department had conducted an audit [CERA] wherein the same query was raised, which has also been replied to by the appellant. Admittedly, nothing is brought out on record to indicate as to what prevented the Revenue from issuing the show cause notice immediately, after noticing the wrong availment etc. during audit. Also, why or what prompted them to wait for three more years to issue the show cause notice, also remains conspicuous. More than these, even when the same was brought to the notice through their reply to the SCN, the same has not been considered at all.
Conclusion - The Revenue has not satisfactorily proved the invoking of extended period of limitation while raising the impugned demand and the order that has upheld the above demand cannot sustain, for which reason, the same is set aside on limitation alone.
Appeal allowed.
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2025 (1) TMI 1317
Interest on the refunded amount deposited as a pre-deposit under the erstwhile provisions of Section 35F and Section 35FF of the Central Excise Act, 1944 - HELD THAT:- In the present case appellant had deposited the amounts by way of reversal of entries in the CENVAT account on 15.11.2007. These amounts were appropriated by the adjudicating authority vide order in original dated 29.05.2009. After appropriation the amounts deposited acquired the character of duty. The order of appropriation was upheld by the Commissioner (Appeal). Subsequently Tribunal allowed the appeal filed by the appellant leading to present proceedings of refund.
From the perusal of the above section 35F it is evident that the amounts deposited in terms of this section are noting but duty. The use of phrase in this section “pending the appeal, deposit with the adjudicating authority the duty demanded.” Further from the perusal of Section 35 FF it is evident that in case the appeal is finally decided in favour of the appellant hen the amount, so deposited under Section 35 F shall be refunded along with interest for period after expiry of period of three months from the date of communication of order of Appellate Authority at the rates specified as per section 11BB.
In case of RANBAXY LABORATORIES LTD. VERSUS UNION OF INDIA AND ORS. [2011 (10) TMI 16 - SUPREME COURT] Hon’ble Supreme Court has held that 'the liability of the revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made.'
Interpreting the above decision of Hon’ble Supreme various benches of tribunal have concluded in the favour of the grant of interest form the date of deposit and at the rate of 12% (though not provided by the statute or any Notification issued in terms of Section 11BB or Section 35FF of the Central Excise Act, 1944). However it may also be noted that these decisions were in respect of the deposits made when there was no separate provision for refund of deposits along with interest. In that situation courts and tribunals were allowing interest from the date of deposit till the date of refund and were also prescribing the rate of interest as deemed fit.
Conclusion - The appellant was not entitled to interest on the refunded pre-deposit amount, as the refund was made within the statutory period, and the applicable provisions did not mandate interest payment.
There are no merits in the appeal - appeal dismissed.
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2025 (1) TMI 1316
Refund of Excise duty paid for the period when the factory belonging to the appellant was closed due to the order of the Hon’ble Supreme Court - HELD THAT:- The issue in the present appeal is squarely covered by the decision of the Hon’ble Tribunal in appellant’s own case [2015 (9) TMI 514 - CESTAT AHMEDABAD]. In the above matter, Tribunal held that 'There is no bar on reopening of the factory in Rules 2008, which is a subsequent event. Further, the appellant in its letter dated 8.2.2011 categorically stated that they were giving intimation of closure of the factory-as required under the Rules, would be implied surrender of registration. It is already observed that in the present case, taking into account of order of Hon’ble Supreme Court, notification of Ministry of Environment and Forest, and the letter dated 8.2.2011 of the appellant to close down their factory and further consequence of surrender of registration may not be followed due to subsequent order dated 17.2.2011 of Hon’ble Supreme Court, the appellant should not be penalized by rejecting the refund claims, for the reason, they had re-opened the factory and such reading of the said provision, would be totally unjust, improper and against all cannons of natural justice and fair play.'
There are no reason to take a different view in the matter. Considering the above, since the factory was closed in deference of the Hon'ble Apex Court's order, the appellant is eligible for refund of duty paid in advance for the period from 09.02.2011 to 16.02.2011 8(eight) days.
Conclusion - The appellant is eligible for a refund of the duty paid in advance for the eight-day period when the factory was closed. Manufacturers should not be penalized for following judicial orders, and procedural requirements should be interpreted in light of fairness and justice.
Appeal allowed.
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2025 (1) TMI 1315
Autonomous Body - EPC (Export Promotion Council) exercises public functions or not - to be treated as "State" or not - Seeking grant of childcare leave - challenge to Human Resource Policy implemented by CHEMEXCIL with effect from 08.01.2024 - HELD THAT:- The Division Bench of this Court in DR JITARANI UDGATA VERSUS UNION OF INDIA & ANR. [2022 (10) TMI 1272 - DELHI HIGH COURT] has held that 'The function performed by the Gjepc cannot be termed as “public duty” and any administrative or financial hold that the Central Government is deemed to have over Gjepc is far from pervasive. The Gjepc retains its autonomous character and it is the CoA which not only looks after the affairs of the Gjepc, but is also empowered to make rules and regulations with regard to conditions of service, appointment, elections, etc. Gjepc does not satisfy any of the requirements or tests laid down by various judgments of the Supreme Court for establishing whether or not an authority can be deemed to be a “State” under Article 12.'
Conclusion - The functions of CHEMEXCIL are admittedly analogous to the functions of GJEPC, albeit in a different industry.
The writ petitions are therefore dismissed, with liberty to the petitioner to take recourse to alternative remedies available to her in law.
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2025 (1) TMI 1314
Seeking of grant of regular bail - smuggling - recovery of 99.876 grams of Etizolam salt which is a commercial quantity - offences punishable under Sections 22, 61 & 85 of the NDPS Act - HELD THAT:- The petitioner was arrested on 15.04.2022 whereinafter investigation was carried out and challan stands presented on 10.10.2022. Charges in the trial in question were framed on 23.11.2022. Total 10 prosecution witnesses have been cited, out of which only 03 have been examined till date. The rival contention of learned counsel for the parties; as to whether the petitioner has been falsely implicated into the FIR in question, whether mandatory provisions of Section 42 and Section 50 of the NDPS Act of 1985 have been complied with or not & the weightage/veracity of the evidence brought by the prosecution alongwith challan (final report); are issues of contentious nature which are essentially required to be ratiocinated upon during the course of trial.
Long back, in HUSSAINARA KHATOON VERSUS HOME SECRETARY STATE OF BIHAR PATNA [1979 (2) TMI 194 - SUPREME COURT], the Hon’ble Supreme Court had declared that the right to speedy trial of offenders facing criminal charges is “implicit in the broad sweep and content of Article 21 as interpreted by this Court”.
The right to a speedy and expeditious trial is not only a vital safeguard to prevent undue and oppressive incarceration; to mitigate anxiety and concern accompanying the accusation as well as to curtail any impairment in the ability of an accused to defend himself, but there is an overarching societal interest paving way for a speedy trial. This right has been repeatedly actuated in the recent past and the ratio decidendi of the above-referred to Supreme Court’s judgments have laid down a series of decisions opening up new vistas of fundamental rights - The guarantee of a speedy trial is intended to avoid oppression and prevent delay by imposing on the Court and the prosecution an obligation to proceed with the trial with a reasonable dispatch. The guarantee serves a threefold purpose.
The unequivocal inference is that where the trial has failed to conclude within a reasonable time, resulting in prolonged incarceration, it militates against the precious fundamental rights of life and liberty granted under the law and, as such, conditional liberty overriding the statutory embargo created under Section 37 of the NDPS Act, 1985 ought to be considered as per facts of a given case. In other words, grant of bail in a case pertaining to commercial quantity, on the ground of undue delay in trial, cannot be said to be fettered by Section 37 of the NDPS Act, 1985.
Reverting to the facts of the case in hand; as per the custody certificate dated 08.01.2025 filed by the learned State counsel in Court today, the petitioner has suffered incarceration for more than 02 years and 08 months. A perusal of the zimni orders dated 27.02.2023, 10.04.2023, 05.02.2024, 02.08.2024, 03.09.2024, 16.10.2024, 19.11.2024 & 27.11.2024 indicates that the trial is procrastinating, conclusion thereof is not visible in near future and the delay in culmination thereof cannot be attributed to the petitioner. In fact, a perusal of the zimni orders passed by the trial Court indicate that repeatedly summons as also bailable warrants have been issued against the Police officials who have not turned up to have their testimonies recorded as prosecution witnesses. The long inordinate custody of the petitioner as an undertrial, without him being responsible for procrastination of the trial, entitles him to grant of regular bail in the factual matrix of the case in hand.
Conclusion - The right to a speedy trial is integral to Article 21, and prolonged pre-trial detention without justifiable cause violates this right. The statutory conditions under Section 37 of the NDPS Act must be balanced against the accused's fundamental rights, especially in cases of undue trial delay.
Petitioner is ordered to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the concerned trial Court/Duty Magistrate and subject to fulfilment of conditions imposed - petition allowed.
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2025 (1) TMI 1313
Challenge to SCN - SCN issued by the Directorate of Revenue Intelligence (DRI) is barred by limitation under Section 28 of the Customs Act, 1962 or not - violation of the principles of natural justice - HELD THAT:- The issue raised in the petition is no longer res-integra. Section 28 (9) of the Act, unamended and amended, have been considered in detail by the Coordinate Benches of this Court in Swatch Group India Pvt. Ltd. [2023 (8) TMI 864 - DELHI HIGH COURT] as also M/s Vos Technologies India Pvt. Ltd. v. The Principle Additional Director General & Anr. [2024 (12) TMI 624 - DELHI HIGH COURT] where it was held that 'there is no material to show that it was not possible for the proper Officer to determine the amount of duty within the prescribed period. The mention of the words, “where it is not possible to do so”, in our opinion, does not enable the Department to defer the determination of the notices for an indeterminate period of time. The legislature in its wisdom has provided a specific period for the authority to discharge its functions. The indifference of the concerned officer to complete the adjudication within the time period as mandated, cannot be condoned to the detriment of the assessee. Such indifference is not only detrimental to the interest of the taxpayer but also to the exchequer.'
The passing of the impugned Order-in-Original while the impugned SCN was under challenge before this Court would amount to initiation of parallel proceedings rendering the scrutiny of the Court as infructuous. A similar situation has been dealt by the High Court of Bombay in Parle International Ltd. v. Union of India [2020 (11) TMI 842 - BOMBAY HIGH COURT], wherein the SCN was not adjudicated for over 13 years and after the same was assailed before the High Court, the concerned authority passed the order-in-original.
Conclusion - The impugned SCN and the Order-in-Original due to the delay in adjudication and violation of natural justice principles.
Petition allowed.
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2025 (1) TMI 1312
Waiver of penalty - it was held by CESTAT that 'It's a case of acquiescence on the part of the petitioners, whereby they have accepted the orders passed by the Authorities and have requested for making payment through monthly instalments. At that relevant time, they did not request for waiver of penalty, and it is only later on, that they are claiming waiver of penalty which cannot be reopened now, after the payment has already been made.'
HELD THAT:- There are no reason to interfere with the impugned order passed by the High Court.
The Special Leave Petition is, accordingly, dismissed.
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2025 (1) TMI 1311
Imposition of a penalty under Section 129 of the Act - petitioner had produced the e-way bill before the passing of the seizure order - intent to evade tax present or not - HELD THAT:- Once the e-way bill was produced before passing of the seizure order, it could not be said that there was any contravention of the provisions of the Act being made by the petitioner.
This Court on various occasions have held that if the requisite documents, which were not accompanying with the goods, were produced before passing the seizure order and if there were no intention to avoid the legitimate tax, the levy of penalty was not justified.
This Court in the case of M/S BANS STEEL THROUGH ITS PROPRIETOR ALPANA JAIN VERSUS STATE OF U.P. AND 2 OTHERS [2024 (8) TMI 772 - ALLAHABAD HIGH COURT] has held that 'It is not in dispute that before the seizure order could be passed, proper E-way bill was produced and the authorities, at no stage, have pointed out any discrepancy in the said E-way bill. Once the E-way bill was produced before the seizure order could be passed, the discrepancy, if any, was cured.'
Petition allowed.
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2025 (1) TMI 1310
Seeking grant of bail - false availment of Input Tax Credit without receiving any scrap or goods - HELD THAT:- The substantial matrix of the case, prima facie indubitably points out the present petitioner's culpability. The seizure of the fake rubber stamps of the transport company, fake E Bills purported to be demonstrated as transportation of scrap from Delhi to Jaipur coupled with the statement of the transport company owner, stating the actual route through which his truck has moved on such dates, the report of the concerned authority confirming the non-existence of the firms from whom the petitioner had received so-called scrap affirmatively validates that petitioner fraudulently caused loss to the government revenue by claiming input tax credit in tune to 10.67 crores. The material collected by the respondent prima facie exhibits that the petitioner was fraudulently profited from the ITC based on sham bills obtained or procured in the name of non-existing firms.
As far as judgment of Hon’ble Apex Court in Prabir Purkayastha Vs. State (NCT of Delhi) [2024 (5) TMI 1104 - SUPREME COURT] and Pankaj Bansal Vs. Union of India [2023 (10) TMI 175 - SUPREME COURT] are concerned, the said judgments pertain to Section 19 of the PMLA, under which the provisions are stringent under Section 69 (2) of the Act of 2017. There is no such provision that before arresting a person, written reasons should be assigned to the petitioner. Further, the petitioner has not raised this question at the instance when he was arrested and not challenged before the Competent Court. It is also pertinent to mention here that the statement rendered by the petitioner was recorded under Section 70 of the Act of 2017, empowers the Authority to record the statements.
The Hon’ble Apex Court in the matter of Y.S. Jaganmohan Reddy Vs. Central Bureau of Investigation [2013 (5) TMI 896 - SUPREME COURT] categorically held that the economic offences are to be dealt with iron hands as such offences are committed with cool calculation and deliberate design and they affect economic fabric of the whole country, therefore, considering the above facts, it is not required to enlarge the petitioner on bail.
Conclusion - The evidence presented by the respondents, including the fraudulent availing of ITC and the use of forged documents, established a prima facie case against the petitioner.
Bail application dismissed.
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2025 (1) TMI 1309
Violation of principles of natural justice - respondents' failure to supply the petitioner with a copy of the Special Investigation Branch (SIB) report, which formed the basis of the SCN u/s 74 of the Goods and Services Tax Act, 2017 - HELD THAT:- Once the foundation of the show cause notice has been the SIB report, it was but incumbent on the respondents to supply a copy thereof so as to enable the petitioner to respond to the findings arrived at by the same SIB and/ or point out the discrepancy in the said report. The mere fact that in show cause notice, the conclusions arrived at by the SIB, have been indicated, by itself cannot fulfill the requirement of supplying a copy of the SIB report as the manner in which the conclusion had been arrived at by the SIB cannot be deciphered from the show cause notice.
It is apparent that the order impugned has been passed by the respondents in violation of principles of natural justice i.e. without supplying the foundational document before passing of the order impugned.
The matter is remanded back to the authority, who would supply copy of the SIB report to the petitioner, afford opportunity to respond to the show cause notice within a reasonable time and thereafter, after providing opportunity of hearing as required by Section 74 of the Act, decide the matter afresh - Petition allowed by way of remand.
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2025 (1) TMI 1308
Challenge to revisional order passed by the Revisional Authority under Section 108 of U.P. Goods and Services Tax Act, 2017 - maintainability of revision petition - Availability of alternative remedy of appeal - HELD THAT:- If the revision was not maintainable on the ground that there was a provision of appeal, then, the Revisional Authority should not have discussed any other aspect of the matter, however, if he entered into merits of the matter in the sense as to whether the parameters and prerequisites for exercise of revisional powers under Section 108 were existing or not, then, he could not have observed that the writ petition is not maintainable. The order is not clear.
Sub-section 2 of Section 108 of the Act, 2017 says that - "The Revisional Authority shall not exercise any power under sub-section (1), if—(a) the order has been subject to an appeal under section 107 or section 112 or section 117 or section 118." The words -"the order has been subject to an appeal under Section 107" means that against such an order an appeal has been filed. Noway these words can be understood as implying that first of all the applicant, who has filed the revision under Section 108, should file an appeal and only thereafter, a revision will lie against such an order passed in appeal.
Conclusion - The impugned order in either eventuality is not maintainable. If it is taken as a decision on merits it does not consider the facts of the case and the pleas raised in the revision. If it is taken as an order dismissing the revision as not maintainable, then, it is against the provisions of Section 108. The impugned order is quashed.
Petition allowed.
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2025 (1) TMI 1307
Levy of GST on assignment of the leasehold rights - seeking declaration that Respondents are not entitled to charge Goods and Service Tax on the transaction of assignment of the long-term Leasehold rights under the provisions of the Goods and Service Tax, 2017 - HELD THAT:- The issue of levy of GST on assignment of the leasehold rights is now no more res integra in view of the decision of this Court in the case of Gujarat Chamber of Commerce and Industries and others vs. Union of India and others [2025 (1) TMI 516 - GUJARAT HIGH COURT], wherein it is held that 'assignment by sale and transfer of leasehold rights of the plot of land allotted by GIDC to the lessee in favour of third party-assignee for a consideration shall be assignment/sale/ transfer of benefits arising out of “immovable property” by the lessee-assignor in favour of third party-assignee who would become lessee of GIDC in place of original allottee-lessee.'
The grievance raised in this petition is required to be considered. Accordingly, as such, without going into the factual matrix as narrated in the petition, the impugned show cause notice is hereby quashed and set aside as the facts are not disputed by the respondent authority for assignment of the leasehold rights by the petitioner - petition disposed off.
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2025 (1) TMI 1306
Cancellation of GST registration of the petitioners on the sole plea that the petitioners did not file its return in accordance with law for consecutive six months - HELD THAT:- The issue has already received the attention of the Hon’ble Division Bench in the matter of Subhankar Golder Vs. Assistant Commissioner of State Tax [2024 (5) TMI 1262 - CALCUTTA HIGH COURT]. The Hon’ble Division Bench had observed 'the appellant can be provided with one more opportunity to remedy the bridge as the appellant being an individual since a small retailer of imitation jewellery, we deem it appropriate that the appellant should be permitted to remedy the bridge.'
The SCN, the order of cancellation of GST registratio and the order of the appellate authority stands set aside and quashed subject to petitioner files his GST returns for the entire period of default and pays requisite amount of tax, interest, fine and penalty and/or late fees within four weeks from date.
Petition disposed off.
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2025 (1) TMI 1305
Cancellation of the petitioner's GST registration - Non compliance of any specified provisions in the GST Act or the Rules made thereunder as may be prescribed - violation of principles of natural justice - HELD THAT:- Relying upon the decision of this Court in the case of AGGARWAL DYEING AND PRINTING WORKS VERSUS STATE OF GUJARAT & 2 OTHER (S) [2022 (4) TMI 864 - GUJARAT HIGH COURT] both the show-cause notice and the order of cancellation are liable to be quashed and set aside. Therefore, the matter is remanded back to the respondent-authority for deciding the same afresh. It is further made clear that such exercise shall be completed within a period of 12 weeks. It is also made clear that the registration shall remain suspended till the respondent-authority decides the show-cause notice for cancellation after giving an opportunity of hearing to the petitioner and considering the reply of the petitioner by passing a fresh de novo detailed order.
Petition disposed off by way of remand.
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2025 (1) TMI 1304
Entitlement to claim the Transitional Input Tax Credit (ITC) under Section 140(5) of the Central Goods and Services Tax Act, 2017 (CGST Act) for service tax invoices received after June 30, 2017 - petitioner could not file the Form GST TRAN-1 due to technical glitch - denial of opportunity of personal hearing - violation of principles of natural justice - HELD THAT:- It is not in dispute that the petitioner has committed a mistake in for the carry forward of the Transitional Input Tax Credit in Form TRAN-1 as admitted by the petitioner by showing the carry forward of the Transitional Input Tax Credit of the Service Tax in column No. 5(a) and instead of Column No. 7(a), as the petitioner has failed to point out while filing the FORM TRAN- 1 that such claim was pertaining to the invoices received by the petitioner after 30th June, 2017 and as such the petitioner was required to fulfill the requirements of Sub- Section (5) of Section 140 of the CGST Act, 2017.
On perusal of the provisions of Section 140 (5) of the CGST Act, it is for the petitioner to prove that the amount was received after 30th June, 2017 which has been duly recorded in the books of accounts within a period of 30 days from the date of receipt. Therefore, it is incumbent upon the respondent Nos. 2 and 3 to provide an opportunity to the petitioner, to show that the requirements of the Sub Section (5) of Section 140 of the CGST Act are fulfilled by the petitioner along with the requisite documents and the proof.
The petitioner has been denied the opportunity of personal hearing by the respondent Nos. 2 and 3 and in such circumstances, there is a clear breach of the principle of natural justice.
Conclusion - It is necessary for authorities to provide a personal hearing and issue a reasoned order when processing claims for Transitional ITC. Matter remanded to the respondent authorities to reconsider the petitioner's claim for Transitional ITC.
Petition allowed by way of remand.
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2025 (1) TMI 1303
Refund of tax - rejection of refund claim on the ground of being barred by time limitation - HELD THAT:- A cogent reading of Section 54 (1) and Section 54 (3) would make the scheme of the Act clear. The right to claim refund, under Section 54 (3), starts from the end of the tax period in which the refund arises. Under Section 54 (1) a dealer is entitled to claim refund of excess taxes within a period of two years from the relevant date. This would be the outer limit, within which the dealer is entitled to make a claim for refund. Thus, the starting point from when the dealer can make such a request is set out in Section 54 (3), which stipulates that a claim for refund of unutilized input tax credit can be made at the end of tax period and such claim is permissible till the end of two years from the relevant date.
In the circumstances, it would have to be held that the application filed by the petitioner, on 21.03.2024, is beyond the last date of 09.03.2024, within which the application should have been made.
Petition dismissed.
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2025 (1) TMI 1302
Liability for utilisation of Input Tax Credit in excess - HELD THAT:- This Court has, in the decision Rejimon Padickapparambil Alex v. Union of India and Others [2024 (12) TMI 399 - KERALA HIGH COURT] observed that the electronic credit ledger is in the nature of a wallet with different compartments of Integrated Goods and Services Tax, Central Goods and Services Tax and State Goods and Services Tax and there cannot be any wrong availment of input tax credit merely because a taxpayer had availed the benefit of credit of input tax available in IGST under the heads CGST and SGST.
In the instant case, a perusal of the order of assessment produced as Exhibit-P2 reveals that the alleged mistake committed by the petitioner is by availing the benefit of Input Tax Credit available in IGST, under the heads CGST and SGST. The said method of availing ITC cannot be said to be a wrong availment of Input Tax Credit warranting the imposition of any penalty as observed in the above referred judgment. Therefore, it is only appropriate that the order of assessment itself is set aside and a reconsideration be directed by the proper officer. Though petitioner had preferred an appeal, in order to avoid continuance of an unnecessary procedure, it is deemed appropriate to exercise the jurisdiction under Article 226 of the Constitution of India to set aside Exhibit-P2 itself and direct a reconsideration.
Conclusion - i) The said method of availing ITC cannot be said to be a wrong availment of Input Tax Credit warranting the imposition of any penalty. ii) It is only appropriate that the order of assessment itself is set aside and a reconsideration be directed by the proper officer.
Petition allowed.
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2025 (1) TMI 1301
Application for seeking judicial remand under Section 167 of Cr.P.C. read with Section 187 of BNSS Act, 2023 for 14 days - ground of arrest were not informed in proper manner - HELD THAT:- This Court has gone through the grounds of arrest, which were conveyed by the prosecution to the accused. It is pertinent to mention here that on arrest memo, it has been acknowledged by the accused himself in writing that he has been informed and explained about the grounds of arrest. Therefore, this Court is of the view of that ground of arrest have been properly informed and explained to the applicant/accused by the prosecution.
It is correct that present offence under Section 132(1) of CGST Act, 2017 is punishable upto 5 years. Hon'ble Apex Court in case law titled as Arnesh Kumar. Vs. State of Bihar [2014 (7) TMI 1143 - SUPREME COURT] made it mandatory to follow the provisions of Section 41 & 41A of Criminal Procedure Code for the offence which are punishable upto 7 years. Prosecution has taken a stand that present accused has been arrested under Section 69 of CGST Act and hence, provision of Section 41 and 41A of Criminal Procedure Code/35 of BNSS Act are not applicable in the present matter but this Court does not find force in the arguments of learned counsel for the complainant.
Further in case law titled as The State of Gujarat etc. Vs. Choodamani Parme Shwaran Iyer and another [2023 (7) TMI 1008 - SUPREME COURT], Hon'ble Apex Court has observed that contention of prosecution that in view of Section 69(3) of CGST Act, 2017, petitioners cannot fall back upon the limited protection against arrest, found in Sections 41 and 41A of Cr.P.C., may not be correct.
Conclusion - This Court is of the view that prosecution was under obligation to comply with the provisions of Section 41, 41A of Cr.P.C/35 of BNSS Ac, 2023 before arresting the accused but same has not been complied and as such, arrest of accused cannot be termed as legal. In view of the matter, the application filed on behalf of applicant/accused Yogesh Gupta is hereby allowed. Accordingly, applicant/accused Yogesh Gupta is released from custody forthwith. However, prosecution/complainant department is given liberty to re-arrest the applicant/accused after following the due procedure as described in Section 41, 41A of Cr.P.C./35 of BNSS Act, 2023/70 (1) of CGST Act.
Application allowed.
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2025 (1) TMI 1300
Reopening of assessment u/s 147 - liability of legal representatives for the tax obligations of a deceased person - HELD THAT:- The proceedings initiated against the Assessee by issuing notice after his demise cannot be continued against his/her legal representative. Had the proceedings been initiated against the Assessee during his life time, they could be continued against the legal representatives of the deceased Assessee. However, that is not the factual position here. Therefore, the order of the learned Single Judge cannot be faltered in quashing what were challenged before him.
Second contention of the learned Panel Counsel that liberty ought to have been reserved to the Revenue for initiating fresh proceedings against the Legal Representatives of the Assessee, once proceedings taken up against the deceased Assessee are set at naught, again does not impress us even in the least. This contention is structured on a premise that the Legal Representatives i.e., persons who hold estate of the deceased Assessee in their hands are under a legal obligation to inform the Revenue as to the death of the Assessee. To support such a premise, no provision of law in general and no section of 1961 Act in particular are brought to our notice. Clause (b) of Section 159 (2) enables proceedings being taken against Legal Representatives of the deceased, is true. However, that is subject to such proceedings being capable of being taken against the deceased. If the statutorily prescribed time limit has expired as against the deceased himself, as has happened in this case then no proceedings can be taken against his LRs.
Conspicuously, there is no provision in 1961 Act which provides for discounting the time spent during the pendency of proceedings against the deceased Assessee while computing the limitation period for initiating the proceedings against his Legal Representatives. Appeal dismissed.
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2025 (1) TMI 1299
Validity of Reopening of assessment - change of opinion - HELD THAT:- The impugned notice and the reasons recorded on the basis of the same facts which were already considered during the regular assessment proceedings are nothing but a mere change of opinion by the respondent AO to reopen assessment ignoring the details and the replies filed by the petitioner available on record. Decided in favour of assessee.
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9911796707
