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Showing 301 to 320 of 1564 Records
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2024 (8) TMI 1264
Violation of principles of natural justice - vague SCN - no date or time was indicated in the impugned SCN for personal hearing - no proper reasons for cancellation mentioned in SCN - Cancellation of petitioner’s Goods and Services Tax (GST) registration with retrospective effect - petitioner found to be non-functioning / non-existing at the principal place of business - HELD THAT:- It is apparent that the impugned SCN is cryptic and does not set out any details for proposing to cancel the petitioner’s GST registration. It merely reproduces the statutory provision which enables the proper officer to cancel a tax payer’s GST registration if it is obtained by means of fraud, wilful misstatement or suppression of facts. The impugned SCN does not mention either the particulars or the nature of the alleged fraud. It does not mention any statement which is alleged to be a wilful misstatement or the facts which were allegedly supressed by the petitioner.
It is also relevant to note that the impugned SCN does not propose the cancellation of the petitioner’s GST registration with retrospective effect - also, the impugned SCN also did not mention the date and time fixed for the personal hearing.
The purpose of issuance of a show cause notice is to enable the noticee to respond to the allegations on the basis of which an adverse action is proposed. It is a fundamental rule of natural justice that a person must be afforded an opportunity to meet the allegations made against him. In the present case, the petitioner has been denied of that opportunity.
The impugned order has been passed in violation of the principles of natural justice. The same is also unreasoned. Therefore, it is liable to be set aside.
The impugned order is set aside. The respondents are directed to restore the petitioner’s GST registration forthwith. However, it is clarified that this order will not preclude the respondents from initiating any fresh proceedings for any statutory violation or for recovery of any dues - Petition allowed.
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2024 (8) TMI 1263
Validity of impugned order passed under Section 73 of the UPGST/CGST Act, 2017 - time limit prescribed under Section 73(10) of GST Act, 2017 has been extended is ultra vires Section 168A of GST Act, 2017 - the parties have consented that the order dated April 26, 2024 may be quashed and set aside with a direction upon the authority concerned to grant an opportunity of hearing to the petitioner and thereafter pass an order in a time bound manner.
HELD THAT:- The order dated April 26, 2024 is quashed and set aside with a direction upon the authority concerned to grant an opportunity of hearing to the petitioner and thereafter pass a reasoned order within eight weeks from date. We make it cleat that since the order is being passed de novo, the question of limitation shall not arise. The petitioner shall not be allowed any adjournment in the said matter.
The writ petition is disposed of.
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2024 (8) TMI 1262
Demand of differencial amount in respect of impugned assessment periods - mismatch of tax liability for the financial years 2017-2018, 2018-2019, 2019-2020, 2020-2021 and 2021-2022 - attachment of bank account - HELD THAT:- It is evident that the respondent issued Form DRC-01A dated 27.01.2023 and the petitioner also filed a reply to the said notice. Though, the Form DRC-01 dated 12.06.2023 was issued, no reply was filed by the petitioner, as the said notice was uploaded in common portal and the petitioner was unaware of such notice. The learned counsel for the petitioner contended that the reason adduced by the petitioner for non-filing of reply and non-participating in the proceedings is that he has given instruction to his Accountant to file a reply, however, the Accountant has failed to appear before the Authority concerned to present the case. Under these circumstances, the present impugned orders dated 13.09.2023 came to be passed by the respondent.
This Court is of the opinion that it is the responsibility of the Assessee to appear before the Authority concerned to present the case. Once, the show cause notice was uploaded in the common portal, the petitioner ought to have filed a reply within a stipulated time. The petitioner cannot blame the Department for not furnishing a physical copy - This Court is of the view, than an opportunity to file suitable reply and a personal hearing before the Authority concerned should be granted to the petitioner, as the impugned orders were passed ex-parte violating the principles of natural justice.
This Court is inclined to set aside the impugned orders - Petition disposed off.
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2024 (8) TMI 1261
Violation of principles of natural justice - opportunity of hearing not provided to the petitioners - seeking amendment of Section 146 of the WBGST / CGST Act, 2017 - HELD THAT:- From a perusal of the provision contained in Section 169 of the said Act it appears that one of the recognized manner and mode of service of summons / notice is by registered post or speed post or courier with acknowledgment due to the person to whom it is intended, inter alia, including the communication to his email address. In the instant case, the petitioner no.1 had duly been served with a notice in his email address.
The petitioners had failed to make out any case for interference. Admittedly, although the petitioners were notified as regards the date of hearing, yet the petitioners chose not to appear. Having not appeared before the appellate authority, the petitioners cannot thrust the burden on the appellate authority by, inter alia, contending that since, the notice was not uploaded in the portal, the petitioners had no adequate notice.
There is no scope for interference in this writ petition - Petition dismissed.
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2024 (8) TMI 1260
Challenge to determination already made by the respondents u/s 73 of CGST/WBGST Act, 2017 - HELD THAT:- This matter is remitted to the proper officer, being the respondent no.2, for reconsideration of the order passed on 23rd November, 2020 having regard to the amendment introduced in Section 16 of the said Act.
Further by taking note of the amendment of Section 16 of the said Act and the realisation of Rs.1,73,174/- from the petitioner’s electronic credit ledger, it is opined that notice in Form GSTDRC-13 attaching petitioner’s bank account dated 27th December, 2022, cannot be continued any further, the same is accordingly quashed.
The writ petition is disposed of.
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2024 (8) TMI 1259
Delay in filing appeal - appeal rejected on the ground that there was no scope to admit the appeal beyond a month from the prescribed period - HELD THAT:- In this case, it is noticed that after the order under Section 73 of the said Act was passed on 26th July, 2023, a sum of Rs. 2,37,894/- was recovered from the petitioner. The petitioner, in addition to the said recovery had made payment of Rs. 31,380/- towards pre-deposit. The appellate authority was made aware with regard to the reasons which prevented the petitioner from preferring an appeal. Taking note of the stand taken by the petitioner it cannot be said that there was lack of bona fide on the part of the petitioner in preferring the appeal. It is well-established that the one does not stand to gain by filing a belated appeal especially when the respondents by then recovered a sum of Rs. 2,37,894/- from the petitioner. The appellate authority, however, despite acknowledging the medical conditions of the petitioner’s representative and despite ascertaining that the petitioner was otherwise prevented from filing the appeal within the time prescribed had purported to dismiss the said appeal, inter alia, on the ground that there was no scope for admission of the appeal filed beyond four months from the date of the order appealed against.
The aforesaid order appears to be contrary to the directive issued by the Hon’ble Division Bench of this Court in the case of S.K. CHAKRABORTY & SONS VERSUS UNION OF INDIA & ORS. [2023 (12) TMI 290 - CALCUTTA HIGH COURT] which, inter alia, provide that the provisions of Section 5 of the Limitation Act, 1963 stands attracted for condoning the delay beyond one month from the prescribed period.
The order passed on 29th April, 2024 by the appellate authority cannot be sustained and the same is set aside - Petition disposed off.
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2024 (8) TMI 1258
Assessment under Section 74 of the TNGST Act, 2017 on the premise that there is mismatch between GSTR-1 and GSTR-3B - HELD THAT:- Taking into account the fact that the entire taxes and penalty has been remitted and the petitioner has been unable to put-forth his objection, this Court is of the view that the petitioner may be granted one final opportunity, which was consented to by the learned counsel for the respondent. In the circumstances, the impugned order passed by the respondent dated 05.06.2023 is set aside and the petitioner is directed to appear before the respondent on 30.08.2024 along with objections and other relevant documents.
The petition is allowed.
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2024 (8) TMI 1257
Order dismissed on failure to make pre-deposit - Request for revival of appeal on depositing the pre-deposit amount - HELD THAT:- As would appear from the order passed by the appellate authority wherein the appeal has been dismissed due to non-payment of the mandatory pre-deposit amount as required under Section 35F of the Central Excise Act, 1944 - The learned counsel appearing for the petitioner, based upon the said reason of dismissal of appeal, has relied upon the order passed by the Coordinate Bench of this Court in M/s. Amar Enterprises [2023 (3) TMI 295 - JHARKHAND HIGH COURT] where it was held that 'It does not appear that there was intent on the part of the petitioner to avoid payment of pre-deposit @7.5% as provided under the amended section 35F of Central Excise Act, 1944. Respondents have also adverted to the facility provided under the RBI Instruction for making such pre-deposit by unregistered dealer / registered non-assessees.'
This Court is of the view that the appellate order passed by the authority requires interference - the order dated 14.06.2024 passed by the Commissioner (Appeals), CGST & Central Excise, Ranchi (Respondent No.2) in the Order in Appeal is hereby quashed and set aside by reviving the said appeal, subject to deposit of the pre-deposit amount as required under Section 35F of the Central Excise Act, 1944, which as per the undertaking furnished by the petitioner, is to be done within two weeks from today.
Appeal allowed.
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2024 (8) TMI 1256
Violation of principles of natural justice - notices that preceded the impugned order were posted in the GST common portal and therefore, the petitioner could not respond to the notices in time - discrepancies between the amount of the credit reflected in Form GSTR 2A, which is auto populated Input Tax Credit and the Returns filed by the petitioner in Form GSTR 3B - HELD THAT:- The Court is of the view that the petitioner may have a case on merits and therefore, the discretion is exercised partly in favour of the petitioner by setting aside the impugned order and remitting the case back to the respondent to pass fresh orders on merits and in accordance with law, subject to the petitioner depositing 25% of disputed tax to the credit of the respondent from its Electronic Cash Register within a period of 30 days from the date of receipt of this order.
The impugned order, which stands quashed, shall be treated as addendum to the show cause notice that preceded the impugned order.
Petition disposed off.
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2024 (8) TMI 1255
Violation of principles of natural justice - petitioner was unaware of the impugned order and the notices that preceded the impugned orderdiscrepancy on account of the supply reported in GSTR 1 and GSTR 3B filed by the petitioner - petitioner is willing to comply with the reasonable conditions that the Court may impose - HELD THAT:- The Court is of the view that the petitioner may have a case on merits and therefore, the discretion is exercised partly in favour of the petitioner by setting aside the impugned order and remitting the case back to the respondent to pass fresh orders on merits and in accordance with law, subject to the petitioner depositing 25% of disputed tax to the credit of the respondent from its Electronic Cash Register within a period of 30 days from the date of receipt of this order.
The impugned order, which stands quashed, shall be treated as addendum to the show cause notice that preceded the impugned order.
Petition disposed off.
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2024 (8) TMI 1254
Violation of principles of natural justice - petitioner did not have a reasonable opportunity to contest the tax demand on merits - petitioner asserts that he was unaware of proceedings until recently because the consultant who was entrusted with GST compliances did not inform the petitioner about these proceedings - mismatch between the petitioner's GSTR 3B returns and the auto-populated GSTR 2A - HELD THAT:- On perusal of the impugned order, it is evident that the tax proposal was confirmed because the petitioner failed to reply to the show cause notice. By taking into account the assertion that such non participation was on account of not being aware of proceedings, the interest of justice warrants reconsideration, albeit by putting the petitioner on terms.
The impugned order dated 24.08.2023 is set aside on condition that the petitioner remits 10% of the disputed tax demand as agreed to within a period of two weeks from the date of receipt of a copy of this order. The petitioner is permitted to submit a reply to the show cause notice within the aforesaid period.
Petition disposed off.
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2024 (8) TMI 1253
Violation of principles of natural justice - order challenged on the ground that the petitioner did not have a reasonable opportunity to contest the tax demand on merits - HELD THAT:- The petitioner has placed on record the electronic credit ledger, which shows reversal in May 2022. Such reversal is also reflected in the petitioner's GSTR 3B return for the month of May in the year 2022-2023. In these circumstances, albeit by putting the petitioner on terms, reconsideration is necessary.
The impugned order dated 19.12.2023 is set aside and the matter is remanded for reconsideration on condition that the petitioner remits 10% of the disputed tax demand as agreed to within a period of two weeks from the date of receipt of a copy of this order - Petition disposed off.
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2024 (8) TMI 1252
Carry forward of Input Tax Credit on correctly - non-application of mind in passing impugned order - violation of principles of natural justice - HELD THAT:- Perusal of the orders dated 23.12.2023 shows that same are cryptic, contrary in as much as in some there is a reference of personal hearing given and some orders record that petitioner did not avail the opportunity of personal hearing. Said orders clearly show complete non-application of mind. Accordingly, the same are quashed.
The petition is disposed of directing the Proper Officer to comply with order and re-adjudicate the Show Cause Notices after taking into account the reply filed by the petitioner as also the contentions of the petitioner that there is no utilization of the input tax credit in the same year as the same has already been carried forward to the next year - Petition disposed off.
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2024 (8) TMI 1251
Violation of principles of natural justice - non-service of SCN - notice and order were uploaded on the GST portal in the “View Additional Notices and Orders” tab - HELD THAT:- The petitioner has asserted in the affidavit that the tipper lorry was purchased in furtherance of business. The entire tax liability along with interest thereon was appropriated from the bank account of the petitioner. Consequently, revenue interest has been secured at this juncture. In these facts and circumstances, the interest of justice warrants that the petitioner be provided an opportunity to contest the tax demand on merits.
The impugned order dated 20.07.2023 is set aside and the matter is remanded for reconsideration by the respondent. The petitioner is permitted to submit a reply to the show cause notice within a period of 15 days from the date of receipt of a copy of this order - Petition disposed off by way of remand.
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2024 (8) TMI 1250
Violation of principles of natural justice - errors apparent on the face of record - petitioner asserts that it was unable to respond to the show cause notice or participate in proceedings on account of not being aware of such proceedings - HELD THAT:- It is evident that the respondent added the total turnover as per the profit and loss account and the turnover as per the annual return in GSTR 9. As a consequence, tax was computed on the sum of Rs.330 crore. Since the tax proposal pertains to turnover difference, the difference between the turnover as per the profit and loss account and the turnover as per the GSTR 9 should have been taken into consideration. To that extent, the impugned order calls for interference.
The explanation of the petitioner that it was unaware of proceedings cannot be accepted especially in view of the petitioner being a large corporate entity. However, substantial liability was imposed on the petitioner without taking into consideration documents on record such as the GSTR 9C reconciliation statement. When these facts and circumstances are considered cumulatively, it is just and necessary to provide an opportunity to the petitioner to contest the tax demand, albeit on terms.
The impugned order is set aside subject to the condition that the petitioner remits a sum of Rs.2.50 crore within four weeks from the date of receipt of a copy of this order. Within the aforesaid period, the petitioner is permitted to submit a reply to the show cause notice by enclosing all relevant documents - Petition disposed off.
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2024 (8) TMI 1249
Challenge to impugned order - challenge on the ground that the petitioner did not have a reasonable opportunity to contest the tax demand on merits - violation of principles of natural justice - HELD THAT:- The Input Tax Credit (ITC) availed of by the petitioner was reversed on account of the disparity between the petitioner's GSTR 3B returns and the auto-populated GSTR 2A. The petitioner has placed on record the annual return and learned counsel contended on such basis that the discrepancy is only to an extent of Rs.19,341/-. In these circumstances, albeit by putting the petitioner on terms, it is just and necessary to provide an opportunity to the petitioner to contest the tax demand on merits.
The impugned order dated 15.09.2023 is set aside and the matter is remanded for reconsideration subject to the condition that the petitioner remits 10% of the disputed tax demand as agreed to within a period of two weeks from the date of receipt of a copy of this order - Petition disposed off by way of remand.
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2024 (8) TMI 1248
Challenge to assessment orders relating to assessment periods 2017-2018, 2018-2019, 2019-2020 and 2020-2021 - orders issued without hearing the petitioner - violation of principles of natural justice - HELD THAT:- On account of the cancellation of the petitioner's GST registration on 06.11.2019, the petitioner would have had little reason to monitor the GST portal on an ongoing basis. The orders impugned herein indicates clearly that such orders were issued without hearing the petitioner.
As regards assessment periods 2017-2018 and 2018-2019, the exemption under Notification No.10/2019 was not available. The petitioner submits that the petitioner agrees to remit 5% of the disputed tax demand as a condition for remand in assessment years 2017-2018 and 2018-2019. As regards the period subsequent thereto, she submits that the petitioner was entitled to exemption under Notification No.10/2019.
By taking into account the cancellation of registration with effect from 06.11.2019 and Notification No.10/2019, it is just and appropriate that the petitioner be provided an opportunity to contest the tax demand pertaining to the respective assessment period, albeit by putting the petitioner on terms with regard to assessment periods 2017- 2018 and 2018-2019.
The impugned assessment orders are quashed subject to the condition that the petitioner remits 5% of the disputed tax demand as regards assessment years 2017-2018 and 2018-2019 within a period of two weeks from the date of receipt of a copy of this order - Petition disposed off.
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2024 (8) TMI 1247
Application for condonation of delay in filing revocation application of cancellation of GST registration rejected - reasons placed on record for condoning the delay in filing the revocation application of cancellation of registration is not satisfied - opportunity for a personal hearing as required by Section 30 of the CGST Act, 2023 not provided - violation of principles of natural justice - HELD THAT:- Under the provision of Section 30, it is mandatory for the purpose this case to provide an opportunity of hearing to the applicant before deciding the application. No such opportunity was provided to the petitioner and therefore, the order suffers from apparent illegality by not following the mandatory provision of Section 30 of giving an opportunity of personal hearing to the applicant by the proper officer.
The present writ petition along with impugned order is set aside. The 3rd respondent is directed to issue notice of personal hearing to the petitioner and the petitioner shall appear before the 3rd respondent and make his submission and thereafter fresh orders are being passed as expeditiously, in accordance with law.
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2024 (8) TMI 1246
Deduction u/s 33AC reduction from the profits and gains of business for computing the allowance u/s 80I - HELD THAT:- The amendment brought into effect from 1st April, 1996 only capped the deduction allowed to 50% of the profits from operating ships, as opposed to 100% of the total income of the assessee. Such a change in the indicia for computation of the cap is of no relevance to the core character of the allowance. Parliament, in its wisdom, thought it fit to disable loss-making shipping companies from seeking an allowance in the name of acquiring new ships, but in fact, effected no change to object of the deduction – creating a reserve to acquire a new ship.
In our opinion, the ITAT was right in noticing that the amendment of 1996 was only in connection with the computation of the cap on the amount of the allowance. We also agree that the amendment made subsequently (in 1996) does not throw any fresh light on interpretation of the provision that existed prior to the amendment (between 1991 and 1993).
In the absence of any explicit positive legislative stipulation requiring the deduction u/s 33AC to be disregarded when computing the deduction u/s 80-I, we have no hesitation in upholding the concurrent views expressed in the proceedings so far prior to the institution of these appeals. Indeed, no case law has been cited at the bar to indicate that the deduction allowed u/s 33AC (which deals only with shipping companies) must have no impact on or holds no relevance for, the deduction allowed u/s 80-I.
We find no reason to interfere with the impugned order. As indicated by Revenue, the concurrent outcome in the proceedings so far result in an eminently plausible and reasonable view. For the reasons articulated above, we independently find that for computing the deduction under Section 80-I (25% of profits from a ship), it would be necessary to give effect to, and factor in, the deduction allowed under Section 33AC. If the result of such deduction under Section 33AC is that there is no profit from the ship, the necessary consequence would be that the deduction u/s 80-I (a percentage of profits) cannot be claimed.
Proportionate Allocation of Section 33AC Deduction - Under Section 80-I (6), the profits and gains from all qualifying ships would have been the base for computing the deduction under Section 80-I (1). Therefore, applying Section 80-I (6), the qualifying ships must be treated as the only source of income (in this case, income from Prabhu Das), but it cannot be stated that the reserve created under Section 33AC could never be attributed to Prabhu Das. It would not be possible to make adjustments at this stage by apportionment between qualifying and non-qualifying ships. It would not be open to us, as an appellate forum with a jurisdiction to hear appeals on substantial questions of law, to provide our own basis and proportions for such apportionment.
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2024 (8) TMI 1245
Validity of Rectification proceedings - proceedings under the DTVSV Act and the issuance of Form 5 concluded - statutory period of limitation - respondents take the view that the AO while computing the additions in the original order of assessment had referred to and applied an incorrect tax rate
HELD THAT:- Validity of the notice would necessarily have to be evaluated basis the date of its issuance as opposed to when the same may have be drawn.
Notwithstanding the above, and in our considered opinion, the order u/s 154 is liable to be struck down on a more fundamental plane. As per the scheme of the DTVSV Act, we find that an applicant desirous of settlement is required to file a declaration carrying requisite particulars in terms of Section 4.
Designated Authority is required to grant a certificate which would encapsulate particulars of the tax arrears and the amount payable upon such determination. In terms of sub-section (2) of Section 5, the declarant is thereafter statutorily placed under an obligation to pay the amount as determined under sub-section (1) within 15 days of the receipt of the certificate and duly intimate the Designated Authority of compliance.
Sub-section (1) of Section 5 clearly injuncts the respondents thereafter from reopening any matter covered by an order of determination made by the Designated Authority in any other proceedings under the Income Tax Act or, for that matter, any other law for the time being in force.
We also bear in mind the provisions which stand enshrined in Section 4 (6). On a conjoint reading of Section 4 (6) alongside Section 5 (3), we find that the determination as carried out by the Designated Authority is clearly rendered finality and cannot possibly be reopened or revised by any authority under the Income Tax Act by taking recourse to a power which may otherwise be available to be exercised.
As is manifest from a reading of those provisions, the only contingency where a determination made may be liable to be revisited or recalled would be where it is subsequently found that the application made by the declarant is found to suffer from an incorrect declaration or the suppression of a material fact. Absent the above, the declaration and the determination is conferred finality under the DTVSV Act. The closure which comes to be accorded to the dispute thus is intended to operate upon both sides, namely, the assessee as well as the Revenue. This would clearly flow from the special legislative objectives underlying the DTVSV Act and its avowed intent of according a closure to all tax disputes.
It is perhaps for this reason that the Legislature constructed in Section 4 (6) a salutary safeguard with regard to the conclusiveness and finality which otherwise stands attached to a determination under the enactment by virtue of Section 5 (3).
However, the action which is asserted to be one in exercise of the powers conferred by Section 154 of the Act would clearly not fall within the ambit of Section 4 (6). We note that it is not the case of the respondent that the petitioner had failed to make a disclosure with respect to any material particular or any disclosure so made subsequently being found to be false. We find ourselves unable to sustain the impugned action.
We consequently allow the instant writ petition and quash the rectification notice, rectification order and notice of demand.
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