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Showing 341 to 360 of 1577 Records

2023 (7) TMI 1237

Refund claim - Availment of excess credit - inputs supplied to 100% EOU by not following the formula prescribed under Rule 3(7)(a) of Cenvat Credit Rules, 2004 - allegation that appellant had not paid excise duty of Rs. 54,796/- on the removal of samples of medicines taken out for the purpose of testing/ chemical examination - whether the original adjudicating authority of the refund claim was required to issue a show cause notice before appropriation of the confirmed dues or not?

HELD THAT:- It is a matter on record that amount of duty and penalty which has been confirmed by the Additional Commissioner vide his order dated 07.01.2010 has already attained finality. The appeal filed by appellant against this order has already been rejected by the Commissioner (Appeals) - there are no order of this Tribunal on the confirmed dues as per the order of Additional Commissioner dated 07.01.2010. It is a matter on record that Assistant Commissioner processed the refund claim of the appellant and thereafter the entire amount which was deposited by them amounting to Rs. 7,49,664/- has been sanctioned and as per the provisions of Section 11 of Central Excise Act, 1944, the confirmed dues amounting to Rs. 5,89,662/- has been appropriated from the refund amount due to the appellant.

There are no legal short-coming in the order of the Adjudicating Authority. As there are no stay on the confirmed dues and as per the provisions of Central Excise Act, 1944, the officer sanctioning the refund is authorised to make deductions of any tax dues which are recoverable from the appellant.

In the case of COMMISSIONER OF CENTRAL EXCISE, INDORE VERSUS GAHOI FOODS PVT. LTD. [2004 (11) TMI 147 - CESTAT, NEW DELHI]), the Tribunal has held that the Deputy Commissioner was justified in adjusting the amount of refund against the pending demand.

The appeals are without any merit and deserve to be dismissed - appeal dismissed.
2023 (7) TMI 1236

Reversal of CENVAT credit - New exemption from duty - Recovery of CENVAT credit with interest and penalty - case of the department is that while availing the exemption Notification No. 30/2004- CE dated 09.07.2004, the appellant was not entitled to utilize the cenvat credit lying unutilized after reversal - HELD THAT:- As per the clause (i) of Section 11 (3), assessee who opts for exemption is required to reverse the credit on input, input in process and input contained in the finished goods. As per the clause (ii) of Section 11 (3) if the assessee avail an absolute exemption notification in that case the remaining unutilized amount after reversal in terms of clause (i) shall stand lapse. As per the above provision, only in a case where the exemption which is opted for, if it is absolute exemption, the remaining amount of cenvat credit after reversal as per clause (i) shall lapse, whereas if the exemption is not absolute only requirement is to reverse the credit attributed to input as such, input in process and input contained in the finished goods lying on the date of opting of exemption notification.

In the present case since the Notification No. 30/2004-CE is undisputedly a conditional one therefore clause (ii) of the Rule 11 (3) is not applicable. Consequently the remaining amount of unutilized cenvat credit shall not lapse. In this case the appellant has utilized an amount of Rs. 4,42,539/- out of unutilized cenvat credit which is not barred under any of the provision.

In the case of SYNFAB SALES AND INDUSTRIES LTD VERSUS C.C.E & S.T. -SILVASA [2022 (1) TMI 259 - CESTAT AHMEDABAD], this Tribunal dealing with the absolutely identical issue held that The issue has been considered by the tribunal time and again and after interpreting Rule 11(3) (i) and (ii) came to conclusion that in case of conditional notification the assessee is not required to lapse the remaining credit after reversal on input as such, input in process and input contained in finished goods.

The issue is no longer res-integra. Accordingly, the impugned order is set aside - Appeal allowed.
2023 (7) TMI 1235

Refund of accumulated Cenvat Credit - whether inputs procured under DEEC/ Advance License Scheme has not suffered any duty and hence, availment of refund for export under such scheme would tantamount to double benefit to the appellant? - HELD THAT:- The manufacturer of excisable goods is entitled for grant of refund of accumulated Cenvat Credit availed on the inputs, subject to fulfillment of the condition that the finished goods have been exported. In the present case, since the Department has not specifically alleged that the appellant had not exported the finished goods, denial of benefit of refund on the ground that the inputs procured under the DEEC/Advance License Authorization Scheme will not be sustained, inasmuch as the statute does not debar such availment of benefit by the exporter.

In an identical case, this Tribunal in the case of COMMISSIONER OF C. EX., JAIPUR-II VERSUS BHILWARA SPINNERS LTD. [2011 (2) TMI 584 - CESTAT, NEW DELHI] has dealt with the situation and allowed the refund benefit in favour of the assessee.

There are no merits in the impugned order, insofar as it has denied the refund benefit to the appellant. Therefore, by setting aside impugned order, the appeal is allowed in favour of the appellant with consequent benefit of refund, if any, as per law.
2023 (7) TMI 1234

Goods - Levy of Service Tax or Sales tax - activity of developing and supply of customised software to its clients - Levy of penalty - wilful suppression of facts or not - HELD THAT:- Even a customised software will satisfy the definition of 'goods' for, it is evident that it has the attributes having regard to (a) its utility; (b) capable of being bought and sold; and (c) capable of being transmitted, transferred, delivered, stored and possessed. Once the said attributes are seen satisfied in the software in question, then whether the software is treated as customised or non-customised, it would nevertheless be categorised as 'goods' for the purposes of levy of tax - The said view of the Supreme Court has since been followed in later decisions including a recent decision of the Supreme Court in COMMISSIONER OF SERVICE TAX DELHI VERSUS QUICK HEAL TECHNOLOGIES LIMITED [2022 (8) TMI 283 - SUPREME COURT].

Merely because the software developed by the respondent/assessee in the instant case was customised for a particular user and was not sold to other users, the charges collected from the customer cannot escape the levy of sales tax under the KGST Act. This is more so because the mere fact that it was customised for a particular user did not lead to the software ceasing to be goods for the purposes of levy of sales tax.

Issue in favour of the assessee and against the Revenue.
2023 (7) TMI 1233

Validity of Best Judgement Assessment - fixation of rate of Gross Profit - 70% or 80% of cost of goods sold (COGS) - invocation of provisions under Section 41(1) of the Kerala General Sales Tax Act, 1963 - HELD THAT:- In the instant case, the Appellate Tribunal found that the assessee was given the opportunity, both at the time of issuance of notice for the production of the books of accounts as well as at the time of issuance of proposal notice, to produce the books of accounts. However, the assessee did not avail of those opportunities. The Appellate Tribunal noticed that no audited statements in Form 50A and 50B were produced before the first appellate authority and no such audited statements were produced before the Tribunal as well. After considering the rival contentions, the Appellate Tribunal, by the order dated 03.11.2022, dismissed the appeals filed by the assessee.

In the instant case, in Annexure-A assessment orders for the year 2017-18 and 2018-19, the assessing authority fixed gross profit at the rate of 80%, to complete the assessment for those years on the basis of ‘best judgment assessment’. In Annexure-C orders for the year 2017-18 and 2018-19, the first appellate authority modified Annexure-A assessment orders by adopting a gross profit of 70% of the cost of the goods sold for those assessment years, considering the fact that the assessee is conducting business at a distance of 8 kilometres from the town. It is an admitted fact that, for the years 2015-16 and 2016-17, the assessing authority adopted a gross profit of 65% of the cost of the goods sold, while completing the assessment of the assessee for those years on the basis of ‘best judgment assessment’, in the assessment orders dated 11.03.2020 and 16.03.2020.

In best judgment assessment there is always a certain degree of guesswork and it is the assessee himself who is to blame, as he did not submit proper accounts. In the facts and circumstances of the case on hand, it cannot be said that the estimation of gross profit by the assessing authority at 70% of the cost of the goods sold for those assessment years is not bona fide or without a rational basis.

There are no reason to interfere with the orders of the authorities below, which are impugned in these S.T. Revisions - Revision dismissed.
2023 (7) TMI 1232

Dishonour of Cheque - insufficiency of funds - acquittal of the accused - discharge of liability or not - Burden of rebuttal of presumption - Section 138 of the Negotiable Instruments Act.

Burden of rebuttal of presumption - HELD THAT:- The presumption mandated by Section 139, does indeed include the existence of a legally enforceable debt or liability. Bare denial of the passing of the consideration and existence of debt, is not enough to rebut the presumption. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complaint in a criminal trial - Apart from adducing direct evidence to prove that the consideration did not exist, or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant.

In the present case, the accused persons could not/did not discharge their liability under Section 139 of the N.I Act.

The complainant has proved the issuance of the cheque by the accused firm by a partner. No evidence otherwise has been adduced. The dishonour of the cheque and the due service of notice has also been duly proved. Thus, the findings of the trial court being not in accordance with the evidence on record and with law is liable to be set aside. The cheque is of the year 2002. More than 20 years have passed. The complainant has proved his case against the accuseds/respondents by way of oral evidence and documents.

The accuseds/respondents no. 1 to 3 are found guilty and convicted of offence punishable under Section 138 of the N.I. Act and sentenced to pay compensation of Rs.50 lakhs within one month from the date of this order, in default to suffer simple imprisonment for a period of one year in respect of respondents/accuseds no.2 and 3 and attachment in respect of the respondent/accused no.1 firm.

Appeal disposed off.
2023 (7) TMI 1231

Violation of principles of natural justice - rejection of refund claim - Non-affording of opportunity to be heard by the Adjudicating Authority - rejection of refund on the ground that the petitioner had changed the value of the inverted rated supply of goods substantially - HELD THAT:- In SCNs it has been mentioned that some invoices included for the purpose of arriving at the amount of 'Net lTC' not found in GSTR-2A returns for the relevant period. In this regard, reference made to Circular No. 135/05/2020-GST dated 31.03.2020 wherein it has been clarified that the refund of accumulated ITC shall be restricted to the ITC as per those invoices, the details of which are uploaded by the supplier in FORM GSTR-1 and are reflected in the FORM GSTR-2A of the applicant. Hence, the refund of accumulated ITC shall not be available to the appellant of those invoices the details of which are not reflected in GSTR-2A of the applicant at the time of filing of refund. In view of the above discussions, mis-match in Net lTC, Inverted rated supply of goods and tax payable on such supplies and adjusted total turnover clearly established and the appellant failed to reconcile the mis-match documentary or otherwise.

It is apparent that although the Appellate Authority had flagged issues on the basis of which certain amount of refund as claimed by the petitioner was required to be rejected, however, no exercise was conducted to determine the extent of the refund claimed, which was untenable. The petitioner had submitted reconciliation statements, and had reduced its claims for refund substantially to restrict the same to the quantum of refund, that according to the petitioner, was due.

In the present case, the petitioner was not heard by the Adjudicating Authority and no such exercise for determining the amount of refund admissible was undertaken.

It is considered apposite to set aside the impugned Order-in-Appeal dated 18.11.2021 as well as the orders dated 31.12.2020 passed by the Adjudicating Authority (annexed with the petition as Annexure P/4) and restore the petitioner’s applications for refund before the Adjudicating Authority for determining the amount of refund payable to the petitioner after affording the petitioner an opportunity to be heard - petition disposed off.
2023 (7) TMI 1230

Jurisdiction - authority of respondents to seize currency during search proceedings under Section 67 of the CGST Act - HELD THAT:- There is no dispute that the respondents are required to act strictly in accordance with the provisions of the statute and the rules thereunder. Clearly the action of the respondents in dispossessing the petitioner or any of the family members of any of their assets in the proceedings under Section 67 of the CGST Act, without seizing the same, is illegal. The respondents cannot continue with the possession of the currency collected from the petitioner’s residence.

This court is informed that respondents had after taking over possession of the currency from the residence of the petitioner proceeded to deposit the same with Canara Bank in a fixed deposit for a term of twelve months.

The assumption that the cash recovered from the locked room was in the possession of the petitioner’s daughter-in-law (DIL) is ex facie erroneous. It was recovered from a room that was locked and the record shows that Ms (DIL) did not have the keys to that room - the respondents are directed to refund the amount to the petitioner. To obviate any further controversy in this regard, the petitioner as well Smt. (DIL) shall appear before Respondent No. 3 at the office of Respondent No. 3, on 26.07.2023 at 12:00 noon.

Petition disposed off.
2023 (7) TMI 1229

Retrospective Cancellation of GST registration of petitioner - Failure to file returns for a continuous period of six months - HELD THAT:- In the present case, there is no material on record to justify such retrospective cancellation of GST registration by the Adjudicating Authority. As noted hereinbefore, the reason for proposing cancellation of petitioner’s GST registration as stated in the Show Cause Notice dated 30.06.2021 is non filing of returns; thus, absent any other reason, the retrospective cancellation cannot extend to include the period for which returns were filed by the petitioner.

There is no dispute that the petitioner had regularly filed his returns till 30.06.2019. Although in terms of Section 29 of the Central Goods and Services Tax Act, 2017, the concerned authority has the discretion to cancel the registration from a retrospective date, however, the said power cannot be exercised arbitrarily - the fact that the petitioner had not filed the returns for a continuous period of six months – the ground on which cancellation was proposed in terms of the Show Cause Notice dated 30.06.2021 – does not, in any manner, justify retrospective cancellation from the date that the registration was granted.

The concerned authorities are directed to on the strength of this order, process the petitioner’s application for cancellation of his registration with effect from 30.06.2019 - petition allowed.
2023 (7) TMI 1228

Rejection of refunds - Export of services - Proof of date of providing / exporting services - during the month of December 2017, the Invoices/Debit Notes were missed to be reported in the GST returns and on identification of such error, the same was reported in the returns filed in the month of March 2018 and in light of such delay, interest was calculated and paid, while declaring the same in the returns for the month of March 2018 - HELD THAT:- It would narrow down to the determination as to whether services were rendered in December 2017, and the case of petitioner that it had omitted to raise Invoice during December 2017, which it has subsequently raised in March 2018 though for the services rendered in December 2017, requires to be re- looked into it and the finding recorded thereon. If the finding regarding rendering of services in December 2017 is recorded and Clause-2 of the Intercompany Master Services Agreement is taken note of and appropriate finding is given that would resolve the controversy.

The impugned orders dated 23.03.2020 at Annexure-'A' and Annexure-'B' dated 17.07.2019 are set aide - the matter is remitted for fresh adjudication before respondent No.2 - Petition allowed by way of remand.
2023 (7) TMI 1227

Input Tax Credit (ITC) - Opportunity for personal hearing not given - violation of principles of natural justice - Seeking quashing/reading down the provisions of Section 16(2)(c) of the Central GST Act/Punjab GST Act, 2017 - HELD THAT:- In the present case, after receiving show cause notices dated 03.02.2023 (Annexure P-5 and P-6), the petitioner gave reply on 04.03.2023 (Annexure P-7) and he clicked on the option for personal hearing (at page No. 112 of the paper book) which was not given to the petitioner.

In similar grounds, in M/S NARESH AGGARWAL AGENCIES PVT. LTD VERSUS THE STATE OF PUNJAB & ANR. [2021 (12) TMI 1450 - PUNJAB AND HARYANA HIGH COURT] and M/S RAGHUNANDAN IRON & STEEL COMPANY VERSUS STATE OF PUNJAB AND ANOTHER [2021 (7) TMI 1416 - PUNJAB AND HARYANA HIGH COURT] were disposed of by granting opportunity of hearing.

This petition is being disposed of by giving direction to respondents to give an opportunity of hearing to the petitioner on the show cause notices dated 03.02.2023 (Annexures P-5 and P-6) and then pass fresh order in accordance with law.
2023 (7) TMI 1226

Input Tax Credit (ITC) - Constitutional Validity of Section 16(4) of the APGST Act and CGST Act, 2017 - imposition of time limit for claiming Input Tax Credit (ITC) - acceptance of Form GSTR-3B returns of March 2020 filed on 27.11.2020 by the petitioner with a late fee - non-service of SCN - Principles of Natural Justice - HELD THAT:- On a careful scrutiny, Section 16 of the APGST Act, 2017 prescribes the eligibility and conditions for a GST assessee to claim credit of Input Tax which was charged on any supply of goods or services or both which were used or intended to be used in the course of furtherance of his business. Precisely while Section 16 sub-section (2) prescribes the eligibility criteria which is sine qua non for claiming ITC, subsection (3) and (4) impose conditions or limitation for claiming ITC - It should be noted Section 16 of CGST Act, 2017 is in pari materia with Section 16 of APGST Act, 2017 with minor differences which are not much relevant in the present context. Hence this section needs no much elaboration.

When analyzed, Section 16(2) shall not appear to be a provision which allows input tax credit, rather ITC enabling provision is Section 16(1). On the other hand, Section 16(2) restricts the credit which is otherwise allowed to only such cases where conditions prescribed in it are satisfied. Therefore, Section 16(2) in terms only overrides the provision which enables the ITC i.e., Section 16(1). This is evident from the manner in which Section 16(2) is couched. The non obstante clause in Section 16(2) is followed by a negative sentence “no registered person shall be entitled to the credit of any input tax in respect of any supply of goods or services or both to him unless”. This negative sentence pellucidly tells that unless the conditions mentioned in Section 16(2) are satisfied, no credit will be eligible. This stipulation manifests that Section 16(2) is not an enabling provision but a restricting provision. What it restricts is the eligibility which was otherwise given U/s 16(1).

It should be noted, when a non obstante clause is a mere restricting provision, an interpretation that the other restricting provisions will not have effect or that the restricting provision will restrict other restricting provisions cannot be accepted for the reason that there is no contradiction between the restricting clause followed by non obstante and other restricting provisions - in substance Section 16(1) is an enabling clause for ITC; 16(2) subjects such entitlement to certain conditions; Section 16(3) and (4) further restrict the entitlement given U/s 16(1). That being the scheme of the provision, it is out of context to contend that one of the restricting provisions overrides other two restrictions. The issue can be looked into otherwise also. If really the legislature has no intention to impose time limitation for availing ITC, there was no necessity to insert a specific provision U/s 16(4) and to further intend to override it through Section 16(2) which is a futile exercise.

In Willowood Chemicals Pvt Ltd. v. Union of India [2018 (10) TMI 261 - GUJARAT HIGH COURT] before Gujarat High Court, inter alia the rule 117 of CGST Rules which prescribed the time limit for making declaration of available tax credits as on 30.06.2017 was challenged as ultra vires to the Constitution and it was contended such time limit should be read as directory and not mandatory.

It is clear that ITC being a concession/benefit/rebate, the legislature is within its competency to impose certain conditions, including time prescription for availing such right and the same cannot be challenged on the ground of violation of Constitutional provisions. As rightly argued by learned Advocate General, the operative spheres of those Articles is different from that of Section 16. In order to establish legislative arbitrariness, it must be proved that the action was not reasonable or done capriciously or at pleasure, non rational, not done or acting according to reason or judgment but depending on the will alone. Then only it can be held to have violated Article 14 of the Constitution.

Non-service of SCN - HELD THAT:- A perusal of impugned Assessment Order dated 14.02.2022 passed by the 1st respondent shows that the present contentions that the notice was not issued in proper form and that no opportunity was granted for hearing etc., which were taken in objections 1 to 10 of the reply by the petitioners were vividly discussed and rejected by the 1st respondent. Hence there are no force in the present contentions.

Petition dismissed.
2023 (7) TMI 1225

Maintainability of petition - availability of alternative remedy of appeal - time period prescribed for filing of appeal expired - HELD THAT:- A bare perusal of statutory provision u/s 107 of Act, 2017 reveals that the Appellate Authority cannot entertain an appeal filed beyond the original period of three months + one month of extended period since there is no power given under the statute for condonation of delay. However, period of three months + one month, as the case may be, is required to be calculated from the day that decision or order appealed against is communicated to aggrieved person.

Instant case pertains to year 2023 and since nearly six years have expired since coming into effect of new regime on 01.07.2017 the teething issues are over and; therefore, provisions of Section 169(1) of Act of 2017 deserve to be implemented in letter and spirit without implying or reading into it anything which is not expressly provided. In this view of the matter, the decision rendered by Madras High Court is of no avail to the petitioner - It is a disputed question of fact whether impugned order was communicated to petitioner on 27.06.2023, which has to be looked into by the Appellate Authority.

Impugned order set aside - petition disposed off.
2023 (7) TMI 1224

Violation of principles of natural justice - petitioner would submit that the impugned order is a verbatim repetition of the cyclostyle notice issued in Form GST MOV-09 and suffers from the vice of non-application of mind - HELD THAT:- No prejudice will be caused to the petitioner, if the petitioner is directed to workout its remedy before the Appellate Authority under the respective GST enactments as there are several disputed questions that arise for consideration related to the value, even if the value given in the invoices produced by the petitioner are considered. There is a shadow of doubt, which needs to be cleared. Therefore, it would ideal for the petitioner to workout remedy before the appellate authority/appellate forum.

Petition dismissed - However, liberty is given to the petitioner to file a statutory appeal within a period of thirty days from the date of receipt of a copy of this order. If such appeal is filed by the petitioner within such time, the appellate authority shall dispose the appeal, as expeditiously as possible, preferably, within a period of three months from the date of receipt of a copy of this order.
2023 (7) TMI 1223

Validity of FIR against the petitioner on the basis of Complaint filed by the GST officer - Offence of forgery and misconduct - no E-way bill - evasion of GST - Exercise of powers under section 482 of CrPC - HELD THAT:- It appears from the allegations made in the impugned FIR that while local crime branch of Gandhidham was on petrolling and checking the vehicle, during that time, they have got an information from informant that 5 trailers loaded from D.B. Translink, Gandhidham are going to be unloaded at Rahpar and coals in those vehicles are without documents. Thereafter, they kept watching and found the alleged trailers are passing on the road - It also appears that the petitioners have mis-declared the goods. The drivers are not carrying the e-way bills and different material than what is stated in the bill has been transported with an intention to evasion of GST and therefore, the petitioners have committed the offence against the economy of the country. The petitioners have created false e-way bills, bilty and bills of the coals and involved in the offence of forgery and also committed cheating with the government and thus, they have hatched conspiracy and committed offence punishable u/s. 406, 420, 465, 467, 468, 471 and 120B of IPC and there is no offence registered under the provisions of GST Act.

It is not a matter of dispute that the investigation is still going on and it is at present at a crucial stage. Since, the investigation is going on, it would be too premature for this Court to opine on any of the submissions made with regard to lopsided investigation. The Investigation Officer has also not submitted his final report, therefore, any of his comment on the same would be in the opinion of this Court is at a premature stage.

In a recent decision of the Hon’ble Supreme Court in case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors., [2021 (4) TMI 1244 - SUPREME COURT], is required to be referred to, where it was held that The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under section 173 Cr.P.C., while dismissing/disposing of the quashing petition under section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.

Considering the allegations made in the impugned FIR, prima facie, the involvement of the petitioners in the alleged offence cannot be ruled out. Thus, in view of the principle laid down in the aforesaid judgment and the facts and circumstances of the case, this Court does not find this to be a fit case where discretion under section 482 of Cr.P.C. can be exercised in favour of the petitioners - petition dismissed.
2023 (7) TMI 1222

Suit seeking diverse declarations - direction to the Defendant to pay requisite GST, if applicable, and handover possession of permanent alternate accommodation as agreed - HELD THAT:- The situation which obtains is that the occupation certificate of the redeveloped building has been obtained. The Plaintiff is kept out of possession of the permanent alternate accommodation to which she is otherwise legitimately entitled to. At the same time, it is alleged, the Defendant has not paid the transit rent. The controversy between the parties primarily revolves around the liability to pay GST which is yet not crystallized.

In the circumstances, it would be expedient to dispose of the appeal by putting terms on the basis of the undertaking furnished by the Plaintiff as to payment of GST - Appellant-Plaintiff shall deposit the amount of GST before the trial Court, on demand being raised by the competent authority and conveyed by the Respondent-Defendant, within two weeks of such communication.
2023 (7) TMI 1221

Scope of Advance Ruling application - supplies undertaken prior to the date of filing of the application for advance ruling - Input Tax Credit - GST paid on the advertisement expenses like calendars, t-shirts, pens, open bags etc. printed with company name/logo and distributed in business meetings, workshops for advertisement, business promotion, marketing and to build up and maintain public image of the company - mandatory minimum percentage of the value of loan that should be charged by the directors from the company in lieu of giving personal bank guarantee for sanctioning loan/credit limits to the company or not - HELD THAT:- From the provisions of Section 95, it is seen that this authority is constituted to decide on matters or questions specified in sub-section (2) of Section 97, in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant.

On going through the facts of the case, the applicant has not disclosed the practice already being followed by him in previous period. It is observed that applicant filed their application before the Rajasthan Authority for Advance Ruling (RAAR) on 15.10.2022 i.e. much later from the discharging his GST liability It is also found that Section 17(5) (g) & 17 (5) (h) on question no one, Section 15 (1) & Section 15(5) on question no 2, and Section 18 (6) on question no 3 are very much clear and there is no ambiguity in these section. We observe that the applicant is well aware about the sections and discharging his tax liability in accordance to them.

The scope of the ruling for Authority for Advance Ruling (AAR) is limited to the transactions being undertaken or proposed to be undertaken on the matters which are not sorted out. In the instant case, the application seeking advance ruling was filed on 15.10.2022 before the RAAR with respect to supplies already being undertaken, GST being paid and GST returns has been submitted. Hence, the case is out of the purview of the Advance Ruling.
2023 (7) TMI 1220

Profiteering - benefit of input tax credit not passed on - Contravention of Section 171 of CGST Act - HELD THAT:- The Commission has carefully considered the Report of the DGAP and the other material placed on record and finds that the DGAP, in pursuance to the Order in SH. VIVEK GUPTA, DIRECTOR GENERAL OF ANTI-PROFITEERING, CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS, VERSUS M/S. MAHESHWARI INFRATECH PVT LTD.,[2022 (10) TMI 369 - NATIONAL ANTI-PROFITEERING AUTHORITY], has investigated the matter pertaining to the other projects executed by the Respondent in terms of Section 171 of the CGST Act, 2017 and the Rules made there under so as to determine whether there has been any profiteering by the Respondent and found that no other project has been executed by the Respondent except the project “U-Faria”, Profiteering in respect of which has already been determined by the NAA.

The above fact has also been corroborated from the website of the UP RERA as well as the reply of the Commissioner State Tax UP as per the report of the DGAP.

The Commission finds that the provisions of Section 171 of the CGST Act, 2017 are not attracted in the case of the other projects of the Respondent and therefore, the proceedings are accordingly dropped against the Respondent.
2023 (7) TMI 1219

Profiteering - benefit of ITC not passed on to the recipients - HELD THAT:- The Commission has carefully considered the Report of the DGAP and the other material placed on record and finds that the DGAP, in pursuance to the Order in SH. DEEPAK GARG, DIRECTOR GENERAL OF ANTI-PROFITEERING, CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS VERSUS M/S. JKG CONSTRUCTION PVT. LTD. [2022 (10) TMI 408 - NATIONAL ANTI-PROFITEERING AUTHORITY], has investigated the matter pertaining to the other projects executed by the Respondent in terms of Section 171 of the CGST Act, 2017 and the Rules made there under so as to determine whether there has been any profiteering by the Respondent and found that no other project has been executed by the Respondent except the project “JKG Palm Court”, profiteering in respect of which has already been determined by the NAA.

The Commission finds that the provisions of Section 171 of the CGST Act, 2017 are not attracted in the case of the other projects of the Respondent and therefore the proceedings are accordingly dropped against the Respondent.
2023 (7) TMI 1218

Profiteering - reduction in the rate of tax or benefit of ITC on the supply of construction service by the Respondent after implementation of GST w.e.f. 01.07.2017 or not - benefit of ITC passed on or not - Section 171 of the CGST Act, 2017. - The company was under CIRP proceedings and taken over by the successful resolution applicant.

Whether the proceedings already initiated against the Respondent viz. M/s. Puma Realtors Pvt. Ltd. under Section 171 of the CGST Act, 2017 and CGST Rules, 2017 in the matter of the project 'Ire° Rise' should be continued even after passing of NCLT order dated 01.06.2021 or not? - HELD THAT:- Any claim of not passing on the benefit of ITC to the recipients under Section 171 of the CGST Act and the Rules made there under, would not survive in view of the Order dated 01.06.2021 passed by the NCLT under Section 31 of the Code which extinguishes his all liabilities including any liability on account of passing on the benefit of ITC to the recipients of the Project lreo Rise as the same has not been incorporated in the Approved Resolution Plan. Further the New Management viz. M/s One Group Developers can also not be held liable for the liability of M/s. Puma Realtors Pvt. Ltd. of not passing on the benefit of ITC to the eligible home- buyers/recipients under Section 171 of the CGST Act, 2017 in view of the NCLT order dated 01.06.2021 - the proceedings already initiated against the Respondent viz. M/s. Puma Realtors Pvt. Ltd. for determining the benefit of Input Tax Credit under Section 171 of the CGST Act, 2017 and rules made there under, with regard to the project 'Ireo Rise' shall be discontinued henceforth.

Whether directions to investigate M/s One Group Developers which has taken over the project lreo Rise' as per NCLT's Order dated 01.06.2021, under section 171 of CGST Act 2017 and CGST Rules, 2017 be passed or not? - HELD THAT:- It is revealed from the material brought on record that by virtue of Order dated 01.06.2021 of the NCLT, the management of M/s. Puma Realtors Pvt. Ltd. (Respondent) has been taken over by M/s One Group Developers under the Code. It is also revealed that M/s One Group Developers is collecting the outstanding installments from the homebuyers/recipients for the project 'Ireo Rise' and is also collecting GST thereon. It is further revealed that the CC has not been issued till date in respect of this project and it is still under execution. Hence M/s One Group Developers is apparently liable for passing on the benefit of ITC under the provisions of Section 171 of the CGST Act and Rules made there under as it is availing the benefit of ITC - the DGAP is directed to investigate M/s One Group Developers with regard to the project 'Ire° Rise' for any violation of Section 171 of the CGST Act, 2017.