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Showing 341 to 360 of 1445 Records
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2024 (3) TMI 1105
Non-payment of service tax - Business Support Service - Renting of Immovable Property Service - Sale of space and Time for Advertisement Service - invocation of Extended period of Limitation - penalty - HELD THAT:- SCN has already been issued to the appellant on the same issue of implementation of Private Owned Buss Scheme, 2001 and a demand has already been raised under the category of 'Business Auxiliary Service' . Thus, the department is well aware of the activities of acquiring buses by the appellant from private operators for carrying passengers. Now, Notice has been again issued for the same activity under various categories of taxable service such as "Business Support Service, Renting on immovable properties and providing time & space for Advertisement service, by invoking the extended period. It is observed that the appellant has been filing returns regularly and the activities of appellant is well within the knowledge of the department. Accordingly, the department at this stage cannot claim wilful suppression of fact intending evade payment of service tax on the part of the appellant and raise the demand again by invoking extended period, as held by the Hon'ble Apex Court in the case of NIZAM SUGAR FACTORY VERSUS COLLECTOR OF CENTRAL EXCISE, AP [2006 (4) TMI 127 - SUPREME COURT]. Accordingly, the impugned Order is not sustainable on the grounds of limitation.
Business Support Service - HELD THAT:- The appellant corporation has acquired the passenger vehicles having road worthiness to meet their requirement for the efficient, adequate and economic passenger transport services, in public interest, The appellant, being a statutory Corporation, has no authority to permit other persons to run their vehicles on their own, on payment of some amount to the Corporation. From the plain reading of the definition of Sec.65(104c) of the Finance Act, 1994, it is observed that the activity of providing parking and receipt of entry fee is not covered under the clauses mentioned under the definition of Business Support Service. Accordingly, the activity undertaken by the appellant cannot be considered as 'Business Support Services' promoting the business of the private transport operators. Hence, the demand confirmed in the impugned order under the category of 'Business Support Services' is not sustainable.
Renting of Immovable Property service - HELD THAT:- The appellant has rented out immovable property for a consideration. In their submissions, the appellant contended that they are not a commercial concern. They are a non-profit making statutory body. They have provided the spaces to stall owners at various places for the benefit of the passengers to arrange their necessity during the journey. Whatever, amount collected by them cannot be considered as 'rent' and used the same has been used towards providing amenities for the passengers in the public interest. Hence, the amount received towards rentals or lease/license fees cannot be considered as 'consideration' received for taxable services - the appellant is liable to pay service tax under the category of 'Renting of Immovable property service' - there is no suppression of fact involved in this case. Accordingly, the demand, if any, under this category of service is restricted to normal period of limitation only.
Time & Space for Advertisement Services - HELD THAT:- The appellant is not an advertisement agency. Further, we observe that 'Sale of Space and time for advertisement' has been brought under the ambit of service tax net only w.e.f. 01.05.2006. In the present case, the demand under this category has been raised for the period 2007-08 to 2011-12. As per the table mentioned in para 16.8 of the Show Cause Notice, we observe that the entire demand is confined to the period 2007-08 to 2009-10. There was no receipt under this category during the financial years 2010-11 and 2011-12. Accordingly, the entire demand under this category is barred by limitation. Hence, no demand confirmed in the impugned order survives under this category.
Penalty - HELD THAT:- There is no evidence of wilful suppression of fact intending evasion of payment of service tax in this case. Accordingly, the penalty imposed on the appellant is not sustainable and hence the same is set aside.
Appeal disposed off.
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2024 (3) TMI 1104
Non-payment of service tax - commercial training and coaching center providing vocational training to the students - Department considered the services rendered by the appellant are taxable services and the exemption provided under N/N. 24/2004-ST dated 10.09.2004 is not applicable to them - HELD THAT:- N/N. 24/2004-ST 10.09.2004, exempts vocational training provided by a Coaching Centre. The appellant considered the services rendered by them are exempted from payment of service tax as per this Notification. It is observed that there is no specific finding in the impugned order to the effect that the coaching offered by the appellant are not vocational training. A perusal of the Brochures submitted by the appellant clearly reveal that most of the courses offered by the appellant are vocational training. Accordingly, the appellant are eligible for the benefit of Notification No. 24/2004-ST 10.09.2004.
The legal status of respective universities is not in dispute. The syllabus for these courses are prescribed by the universities in consultation with the appellant institute and examinations are also conducted by the universities which thereafter issues certificate/degree/diploma to successful candidates. Therefore, the appellant institute provided educational qualification recognized by the law and are accordingly outside the ambit of 'commercial training or coaching services. Hence, there is no service tax liability on these services.
The demand of service tax confirmed in the impugned order is not sustainable. Since, the demand itself is not sustainable, the question of demanding interest and imposing penalty does not arise.
The impugned order set aside - appeal allowed.
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2024 (3) TMI 1103
Recovery of service tax alongwith interest and penalties - Sundry Debtors/ amounts realizable appearing in Balance Sheet - reverse charge mechanism - extended period of limitation - HELD THAT:- The proposed demand of Service Tax of Rs. 1,64,78,600/- has been reduced by Commissioner (Appeals) to an amount of Rs. 1,37,96,613/-, which has been confirmed alleging it to be the non-released receivables (sundry) from various Government debtors and private debtors (sundry debtors). Sundry debtors has been defined under Finance Act, 1994. As per normal terms sundry debtors refer to businesses, individuals or companies receiving services or products from another company or business without making the payment immediately. The payment occurs on a credit basis, where the debtors are liable to pay the money in future, i.e. the money lent to the sundry debtors is expected to return in the business financials within a short period of time. Payments on some future date to the sundry accounts are considered as fixed assets in the business.
The show cause notice is based upon the scrutiny of profit and loss account for the financial year 2014-15, wherein the amounts were found recorded to be recoverable from the Government as well as from the private debtors - the amounts mentioned in the balance sheet as profit and loss amounts as unrealized receivable from the sundry debtors cannot be considered as value of service. Apparently, there is no provision in the Act or the Rules to be disclosed as sundry debtors in the ST 3 Returns. Hence, demand cannot be confirmed by merely appreciating the difference between the profit and loss account / balance sheet and ST 3 returns.
The other ground for confirming demands is that the appellants had shown certain amounts du from the parties in their Income Tax returns and Revenue has proceeded to demand Service Tax on this amount shown in the Balance Sheet - HELD THAT:- In the present case, it is observed that the Show Cause Notice as well as orders of the adjudicating authority have just appreciated the difference noticed between the amount mentioned in the profit and loss account and are mentioned in ST 3 returns of the appellant. Without appreciating the amount out of the impugned invoices to have been actually received by the appellant and without verifying as to whether the requisite services were finally being provided. Resultantly, order confirming such a demand is not sustainable.
Invocation of the extended period - HELD THAT:- It is already observed that the matter has originated based upon the latest audit of the appellants own record. The order merely state that had audit not been conducted the liability as confirmed qua the appellant could not have been ascertained, cannot be the ground for invoking the extended period of limitation. The primary responsibility for ensuring that the credit amount of service tax is paid, rests on the officers even in the regime of self-assessment as clarified by the CBEC in its manual for scrutiny of ST return - There is no evidence found on record proving such intent / mens rea with the appellant to evade payment of service tax. The appellant have already been held not liable to pay the amount confirmed. Resultantly the department has wrongly invoked the extended period of limitation while issuing Show Cause Notice.
The impugned order is set aside - appeal allowed.
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2024 (3) TMI 1102
CENVAT Credit - activity of trading as well as erection, commissioning and installation services - non-maintenance of separate account for their input/input services used for providing taxable services as well as exempted services - violation of the provisions of Rule 6(3) of Cenvat Credit Rules, 2004 - HELD THAT:- As held by the Hon’ble Telengana High Court in M/S TIARA ADVERTISING VERSUS UNION OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE [2019 (10) TMI 27 - TELANGANA AND ANDHRA PRADESH HIGH COURT] that if the appellant has taken Cenvat Credit wrongly, Rule 14 of the Cenvat Credit Rules, 2004 empowers the authorities to recover such credit availed by the assessee wrongly. Admittedly in this case, no demand has been raised against the appellant under Rule 14 of the Cenvat Credit Rules, 2004.
Therefore, relying on the decision of the Hon’ble Telengana High Court in the case of Tiara Advertising vs. UOI, it s held that the demands are not sustainable against the appellant, therefore, the impugned order is set aside - appeal allowed.
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2024 (3) TMI 1101
Levy of service tax - Business Support Service - service of providing up-linking facility - classification of service - services of supply of DSNG Van to its clients can be classified and subjected to service tax under the category of Supply of Tangible Goods Service or not - time limitation - demand of interest - levy of penalties u/s 77 & 78 of FA.
Whether the service of providing up-linking facility will be taxable under the category of Business Support Service? - HELD THAT:- On examination of the terms of the contract between the appellant and their client it is clearly evident that appellant have provided the services which support the business activities of their client, by providing the uplinking facility from their teleport. Thus on merits these service would be classifiable under the category of business support services.
Whether the services of supply of DSNG Van to its clients can be classified and subjected to service tax under the category of Supply of Tangible Goods Service? - HELD THAT:- The agreement between the appellant and their customer is from the day one i.e. the day when it was entered into, was an agreement to provide these vehicles on rent to the appellant without transferring the effective control and possession of the vehicle to the customers - Hon’ble Supreme Court has in case of Adani Gases Ltd. [2020 (8) TMI 789 - SUPREME COURT] held that the supply of the pipelines and the measurement equipment (SKID equipment) by the respondent, was of use to the customers and is taxable under Section 65 (105) (zzzzj) of the Finance Act 1994 - there are no merits in the submissions made by the appellant in this respect and hold that the appellant has in fact provided the service under the taxable category of the Supply of Tangible Goods Services.
Whether the demand is barred by limitation? - HELD THAT:- The issue involved is purely of interpretation of the terms of agreement vis a vis the provisions of the Act. On going through the terms of agreement, the appellant were entertaining a bona fide belief that these service would not be classifiable under any of the taxable categories. There is nothing in the agreement to show that appellant could not have entertained such a belief. Also it is found that there has been dispute in respect of interpretation of the term “infrastructural support facility” used in the definition of Business Support Services. There are decisions which have held that the this term was restricted only to infrastructural support facilities, vis a vis the office maintenance facilities which have been out sourced. Thus it cannot be said that appellants could not have entertained such a belief - thus, extended period of limitation could not have been invoked for making this demand.
As the service tax is payable is under this category thus the demand will be restricted only to the extent it has been made within the normal period of limitation. To re-determine the same the matter needs to remanded back to the original authority.
Whether the penalties imposed under Section 77 & 78 can be justified? - HELD THAT:- As it is held invocation of extended period of limitation in respect of the demand made under the category of Business Support Services, the penalty imposed under Section in respect of this demand cannot be sustained. However in respect of the demand under category of Supply of Tangible Goods Services by invoking extended period of limitation as per proviso to Section 73 (1), which is upheld the penalty under Section 78 to that extent is upheld.
Interest - HELD THAT:- The demand for interest also upheld in respect of demands upheld.
Appeal allowed in part.
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2024 (3) TMI 1100
Valuation - computation done at 110% of the cost of production of goods at the second unit received through inter-plant transfer - Rule 8 of the Central Excise Valuation Rules, 2000 - Revenue Neutrality - HELD THAT:- In UNION CARBIDE INDIA LTD. VERSUS COLLECTOR OF CENTRAL EXCISE, CALCUTTA [2003 (9) TMI 89 - SUPREME COURT], Hon'ble Supreme Court had laid down ratio that for the purpose of computing the cost of production, Rule 6 of the Valuation Rules is squarely applicable to the cases of inter-plant transfer for determination of cost of production under Rule 8, where goods are not sold but are captively consumed by the Appellant and the interpretation made to distinguish cost and price in the case of CHALLAPALLI SUGARS LIMITED & HINDUSTAN PETROLEUM CORPORATION LTD. VERSUS COMMISSIONER OF INCOME-TAX, AP & COMMISSIONER OF INCOME-TAX (CENTRAL) , CALCUTTA [1974 (10) TMI 3 - SUPREME COURT] by the Hon'ble Supreme Court was also considered to arrive at the conclusion that cost of raw material at Jamshedpur would also remain as cost of material consumed at Tarapur, by removing the notional profit. It is however worth mentioning, here that no finding is available in those two judgments that Rule 6 of Valuation Rules, as existing then was similar to Rule 8 of the Valuation Rules, 2000.
It would not be a breach of judicial propriety to give a finding that Appellant is liable to pay the duty, interest and penalty as demanded in the Show-cause notice that was also confirmed by this Tribunal - Appeal dismissed.
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2024 (3) TMI 1099
Levy of penalty u/r 25 of CER - Availment of fraudulent credit - issuance of Cenvatable invoices without actual dispatch of goods - Penalty on Registered Dealers - Penalty on Unregistered Dealers and Transporters - HELD THAT:- The adjudicating authority finds that the charge levelled against the respondents was that they have facilitated and abetted M/s AIPL in availing fraudulent credit; a careful consideration of type of offences indicates that that the circumstances covered fall under Rule 26(2) of Central Excise Rules, 2004 introduced w.e.f. 01.03.2007 and therefore, penalty cannot be imposed under Rule 25 of Central Excise Rules, 2004.
Only for the reason that the offence relating to imposition of penalty for issuing Cenvatable invoices without supply of goods is made an offence specifically from 01.03.2007, it cannot be concluded that there was no provision in the rules for imposition of penalty for such offence before 01.03.2007. It is found that a bare reading of the provisions gives a clear understanding that even before the amendment Rule 26 provided for imposition of penalty in the cases where the dealer did not account for the excisable goods or in cases of contravention of provisions of the Act and the Rules. It cannot be said that the dealers have accounted for the rules in a proper manner and did not contravene any provisions of law - The very fact that they have issued invoices in the name of M/s AIPL facilitating them to avail Cenvat credit while they have removed the goods elsewhere is a proof in itself that they did not account for the excisable goods properly and have violated the provisions of Rule 9 of Central Excise Rules, 2004.
Now, the question that comes is as to whether such non-accountal and contravention of provisions is with an intent to evade payment of duty. It is on record that the dealers are registered. They are aware of the provisions of law relating to issuance of invoices. Even then, they have issued Cenvatable invoices in the name of M/s AIPL without ensuring that the goods are also consigned to M/s AIPL. A positive act evidencing the intent to evade payment of duty is in the form of issuing Cenvatable invoices. Therefore, the dealers had contravene the provisions of rules with intent to evade payment of duty and they have rendered themselves liable to pay penalty under Rule 25 even before the insertion of sub-Section (2) under Rule 26.
Coming to the case of the transporters, they have not only confirmed the fact that the goods consign to M/s AIPL were transported upto Delhi and in no case were transported to M/s AIPL. Moreover, they have issued transport document evidencing procurement of goods by M/s AIPL - the transporters have also rendered themselves liable to pay penalty under Rule 26 ibid.
Even before insertion of sub-Rule 2 under Rule 26 of Cenvat credit Rules 2004, provisions existed for imposition of penalty under Rule 25 for the offence of issuing Cenvatable invoices without movement of goods. Similarly, there is a provision to impose penalty and for confirming a non-existent transportation goods under Rule 26 of Cenvat Credit Rules, 2004 - Revenue has a strong case in their favour and the impugned order cannot be sustained as far as dropping of penalty on respondent dealers/transporters - such penalty leviable on different dealers/transporters should be commensurate with the offence committed and to wipe of the benefit that has accrued to them while working as a deterrent against any such future repetition of the same.
The impugned order is modified to the extent of non-imposition of penalty on the respondents - Appeal disposed off.
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2024 (3) TMI 1098
Benefit of Nil Rate of duty - CENVAT Credit - MS Pipes - common inputs used in manufacture of dutiable as well as exempted final products without maintaining the separate accounts - fulfilment of the requirements of N/N. 6/2002-CE as amended by N/N. 47/2002 - HELD THAT:- The pipes are meant for intended use mentioned in Notification no. 47/2002/CE dated 06-09- 02 of Department of Revenue Ministry of Finance and Company Affairs, GOI, Issued under condition 47A of the above Notification. Thus, these certificates are found to specifically mention that the pipes are for being used for transferring water from source to the treatment plant and from there to the storage facility. The Certificates are issued by the Competent Government Authority. Hence, we do not find any reason to reject these certificates. Non-availability of these certificates at the time of clearance is nothing but a mere procedural lapse. Substantial benefit of Nil rate of duty arising out of a notification cannot be denied to the appellant on the said ground.
The appellant has otherwise duly complied with the requirement/ condition of the notification. Hence, it is held that the appellant cannot be held liable for duty demand with respect to such clearances for which certificates have been produced on record. Adjudicating authorities are held to have misinterpreted the certificates. It is merely a difference of language and the difference in the format of those certificates. The gist of the certificates is about the same purpose as is mentioned in Notification No.6/2002 as amended vide Notification No.47/2002 to claim the ‘Nil Duty’ benefit. Thus the appellant is held not liable to pay any excise duty.
The order under challenge is not sustainable. The same is hereby set aside. Appeal stands allowed.
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2024 (3) TMI 1097
Penalty u/sec. 270A - defective notice u/s 274 - non specifying the relevant limb at the time of initiation of penalty - HELD THAT:- It has duly come on record in light of the AO’s corresponding twin identical show cause notices that he had not specified the corresponding limb u/sec. 270A(8) read with sub-section(9) thereof as was held in various judicial pronouncements G.R. Infraprojects Ltd. [2024 (1) TMI 163 - RAJASTHAN HIGH COURT], Schneider Electric South East Asia (HQ) PTE Ltd. [2022 (3) TMI 1295 - DELHI HIGH COURT] and Prem Brothers Infrastructure LLP vs. NFAC [2022 (6) TMI 130 - DELHI HIGH COURT]
We further wish to draw support from hon’ble jurisdictional high court’s decision in Mohd. Farhan A. Shaikh vs. DCIT [2021 (3) TMI 608 - BOMBAY HIGH COURT (LB)] that such a failure on AO’s part in not specifying the relevant limb at the time of initiation of penalty itself vitiates the entire proceedings being in the nature of an incurable defect. Faced with the situation, we delete the impugned penalties imposed - Decided in favour of assessee.
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2024 (3) TMI 1096
Levy of penalty - goods were unloaded at a place that was not registered in the registration certificate - shifting of burden of proof on the assessee to show that there was no intention to evade tax (onus to prove) - HELD THAT:- The intention to evade tax is sine qua non for imposition of penalty. The facts in the present clearly indicate that the place where the goods were unloaded is the godown belonging to the petitioner and not to any third party. It is not in dispute that this particular godown was registered as place of business of the petitioner in the erstwhile Value Added Tax regime.
There is no intention to evade tax whatsoever. The imposition of penalty in such circumstances is not warranted. The judgement of the Madurai Bench of Madras High C\
]ourt in Algae Labs Pvt. Ltd. [2022 (4) TMI 466 - MADRAS HIGH COURT] also supports the case of the petitioner that unloading of goods at a different place by itself would not lead to imposition of penalty.
The impugned order dated July 28, 2022 is quashed and set aside. The writ petition is allowed.
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2024 (3) TMI 1095
Retrospective cancellation of GST registration of the petitioner - SCN does not specify any cogent reason - violation of principles of natural justice - HELD THAT:- The Show Cause Notice and the impugned order are bereft of any details accordingly the same cannot be sustained and neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation.
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 important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, 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.
It is clear that both the petitioner and the respondent want the GST registration to be cancelled, though for different reasons - In view of the fact that the Petitioner does not seek to carry on business or continue the registration, the impugned order dated 25.08.2023 is modified to the limited extent that registration shall now be treated as cancelled with effect from 08.11.2022 i.e., the date when the Show Cause Notice was issued. 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 (3) TMI 1094
Violation of principles of natural justice - impugned order does not take into consideration the reply submitted by the Petitioner and is a cryptic order - demand including penalty u/s 73 of CGST Act - HELD THAT:- The observation in the impugned order dated 30.12.2023 is not sustainable for the reasons that the reply filed by the Petitioner is a detailed reply. Proper Officer had to at least consider the reply on merits and then form an opinion whether the reply was incomplete. He merely held that the reply is incomplete and lacks supporting documents 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 order cannot be sustained, and the matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order dated 30.12.2023 is set aside. The matter is remitted to the Proper Officer for re-adjudication.
Petition disposed off.
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2024 (3) TMI 1093
Challenged the order cancelling the registration - barred by limitation - non-application of mind - HELD THAT:- Admittedly from the perusal of the order dated 20.01.2022. it transpires that no reason has been assigned for cancellation of the registration of the petitioner. In absence of the same the order cannot be justified in the eye of law. Further since the appeal of the petitioner was dismissed on the ground of delay, this Court finds that the doctrine of merger will have no application considering the facts and circumstances of the present case.
Thus, the order dated 20.01.2022 passed by the Assistant Commissioner, respondent no.3 is hereby quashed - The writ petition succeeds and is allowed.
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2024 (3) TMI 1092
Cancellation of GST registration of petitioner - petitioner had no opportunity to even object to the retrospective cancellation of the registration - violation of principles of natural justice - HELD THAT:- The Show Cause Notice and the impugned order are also bereft of any details. Accordingly the same cannot be sustained and neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation.
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 important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the taxpayer during such period. Although, it is not considered 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.
It is clear that both the petitioner and the respondent want the GST registration to be cancelled, though for different reasons - In view of the fact that Petitioner does not seek to carry on business or continue the registration, the impugned order dated 29.11.2020 is modified to the limited extent that registration shall now be treated as cancelled with effect from 01.10.2019 i.e., the date when Petitioner applied for cancellation of GST registration. 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 (3) TMI 1091
Retrospective cancellation of GST registration of the petitioner - petitioner had no opportunity to even object to the retrospective cancellation of the registration - violation of principles of natural justice - HELD THAT:- The Show Cause Notice and the impugned order are bereft of any details accordingly the same cannot be sustained and neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation.
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 important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the taxpayer during such period. Although, 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.
It is clear that both the petitioner and the respondent want the GST registration to be cancelled, though for different reasons - In view of the fact that Petitioner does not seek to carry on business or continue the registration, the impugned order dated 01.12.2020 is modified to the limited extent that registration shall now be treated as cancelled with effect from 19.11.2020 i.e., the date when the Show Cause Notice was issued. 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 (3) TMI 1090
Violation of principles of natural justice - impugned order does not take into consideration the replies submitted by the Petitioner and is a cryptic order - demand with penalty u/s 73 of CGST Act - HELD THAT:- The observation in the impugned order dated 30.12.2023 is not sustainable for the reasons that the reply filed by the Petitioner is a detailed reply. Proper Officer had to at least consider the reply on merits and then form an opinion whether the reply was devoid of merits. He merely held that the reply is devoid of merits which exfacie 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 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 order cannot be sustained, and the matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order dated 29.12.2023 is set aside. The matter is remitted to the Proper Officer for re-adjudication.
Petition disposed off.
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2024 (3) TMI 1089
Cancellation of GST registration of petitioner - order for cancellation of registration has been passed without any application of mind whatsoever - violation of principles of natural justice - HELD THAT:- In the present case, the facts are similar to one in Surendra Bahadur Singh's case [2023 (8) TMI 1262 - ALLAHABAD HIGH COURT], wherein the appeal was barred by time under Section 107 of the Act. However, the Division Bench in Surendra Bahadur Singh's case took into consideration the original order and set aside the same being non-reasoned and allowed the petitioner therein to file reply to the show cause notice.
The orders impugned herein are liable to be set aside. Accordingly, the order in original dated March 25, 2023 and the appellate order dated December 29, 2023 are quashed and set aside - Petition allowed.
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2024 (3) TMI 1088
Maintainability of appeal - appeal dismissed on the ground of time limitation - HELD THAT:- There is no material on record to disbelieve the contention of the petitioner that the copy of the original order in appeal was annexed with the appeal paper book at the time of the online submissions.
The impugned order set aside - matter is remitted to the Appellate Authority to consider the appeal of the petitioner on merits in accordance with law - petition disposed off.
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2024 (3) TMI 1087
Seeking grant of bail - irregular availment of Input Tax Credit - creation and operation of fake GST firms and issuing fake GST invoices from these firms - involved in the passing of fake ITC from 102 non-existent firms to the tune of Rs. 274.89 Cr. by way of issuing invoices without any actual supply of goods - HELD THAT:- It reveals from the perusal of the record that by blaming Naveen Aggarwal the accused persons want to escape from liability whereas there is sufficient and ample evidence to the effect that they themselves were managing the affairs of illegal activities and fake ITC (Income Tax Credit) was availed by them and they were engaged in a number of illegal financial transactions and in such circumstances if they are granted bail, as rightly held by the learned Sessions Judge while rejecting their bail applications, there is a strong possibility of applicants fleeing from justice and also they may tamper with the crucial evidence or make influence to the witnesses. This Court is also of the view that the present matter relates to serious economic offence, which may affect the economy of the country. The applicants have committed gross violation of the provisions of the GST Act. Wrongful availment / utilization of input tax credit amounting to Rs. 315 Cr. has been made by them and this amount will increase a lot with the advancement of the investigation. The Court genuinely feels that at this stage there is no possibility of false implication of the applicants. The maximum period of imprisonment provided for such offence under the GST Act, which is five years, causes no hindrance in rejection of bail applications in such type of cases relating to economic offences.
Considering the entire facts and circumstances of the case and keeping in view the nature and gravity of offence, which is an economic offence in nature, complicity of accused, role of the applicants and without expressing any opinion on the merits of the case, the Court is of the view that the applicants have not made out a case for bail. The bail applications are liable to be rejected and the same are accordingly rejected.
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2024 (3) TMI 1086
Validity of summons issued u/s 70 - Proper officer - Whether issuance of summons u/s 70 of the CGST Act is hit by Section 6(2)(b) of the CGST Act ? - HELD THAT:- It is evident that against the issuance of notice by the State Authorities, petitioner had preferred writ petition before the High Court and had not put in appearance before the State Authorities. In the judgments referred to by counsel for the respondents, it is held that scope of Section 6(2)(b) and Section 70 of the CGST Act is different and distinct, as the former deals with any proceedings on subject matter, whereas the latter deals with power to issue summon in an inquiry and therefore, the words “proceedings” and “inquiry” cannot be mixed up to read as if there is a bar for the respondents to invoke the power u/s 70 of the CGST Act.
Madras High Court in "Kuppan Gounder P.G. Natarajan vs. Directorate General of GST Intelligence, [2021 (9) TMI 713 - MADRAS HIGH COURT], wherein, Court has also held that in issuance of summons for conducting an inquiry and to obtain a statement from the appellant cannot be construed to be bar u/s 6(2)(b) of the CGST Act.
Thus, we are of the considered view that issuance of summons u/s 70 of the CGST Act is not hit by Section 6(2)(b) of the CGST Act and the present Civil Writ petition being devoid of merits is accordingly dismissed. Stay application stands disposed.
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