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Showing 381 to 400 of 1466 Records
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2024 (6) TMI 1086
Breach of principles of natural justice - mismatches between the GSTR 3B returns of the petitioner and the auto populated GSTR 2A - SCN and impugned order were uploaded on the “view additional notices and order tab of the GST portal” and not communicated to the petitioner through any other mode - HELD THAT:- On perusal of the impugned order, it is evident that the tax proposal pertains to mismatches between the GSTR 3B returns of the petitioner and the auto populated GSTR 2A. Such tax proposals were confirmed because the petitioner failed to reply to the show cause notice or attend the personal hearing. Upon considering the facts and circumstances, the interest of justice warrants that the petitioner be provided an opportunity to contest the tax demand on merits, albeit by putting the petitioner on terms.
The impugned order dated 05.01.2024 is set aside, subject to the condition that the petitioner remits 10% of the disputed tax demand as agreed to within a maximum period of two weeks from the date of receipt of a copy of this order - Petition disposed off.
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2024 (6) TMI 1085
Violation of principles of natural justice - petitioner asserts that she was unable to respond to the show cause notice on account of personal difficulties - mismatch between the GSTR 1 statement and the GSTR 3B return - HELD THAT:- It is evident that the confirmed tax proposal relates entirely to a mismatch between the GSTR 1 statement and the GSTR 3B return. Such proposal was confirmed because the petitioner did not reply to the show cause notice or attend personal hearing. In these circumstances, albeit by putting the petitioner on terms, it is just and necessary that the petitioner be provided an opportunity to contest the tax demand on merits.
The impugned order dated 17.10.2023 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 by way of remand.
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2024 (6) TMI 1084
Violation of principles of natural justice - denial of a personal hearing - order were uploaded on the GST portal and not communicated to the petitioner through any of the other modes prescribed in Section 169 of applicable GST enactments - HELD THAT:- As a registered person under applicable GST enactments, the petitioner was under an obligation to monitor the GST portal on an ongoing basis. Therefore, the explanation provided by the petitioner is wholly not satisfactory. At the same time, on perusal of the impugned order, it is evident that the tax proposal was confirmed because the petitioner did not reply to the show cause notice or participate in proceedings. In these circumstances, the interest of justice warrants that the petitioner be provided an opportunity to contest the tax demand on merits, albeit by putting the petitioner on terms.
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 by way of remand.
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2024 (6) TMI 1083
Challenge to assessment order and attachment order - mismatch between the petitioner's GSTR 3B returns and the auto-populated GSTR 2A - SCN and impugned order were uploaded on the “View Additional Notices and Orders” tab on the GST portal, but not communicated to the petitioner through any other mode - Violation of principles of natural justice - HELD THAT:- On perusal of the impugned assessment order, it is evident that the tax proposal pertained to the mismatch between the petitioner's GSTR 3B returns and the auto-populated GSTR 2A. It is also clear that the tax proposal was confirmed because the petitioner failed to reply to the show cause notice. In these circumstances, albeit by putting the petitioner on terms, the interest of justice warrants that an opportunity be provided to the petitioner to contest the tax demand on merits.
The impugned assessment order dated 17.11.2023 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 two weeks from the date of receipt of a copy of this order.
Petition disposed off.
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2024 (6) TMI 1082
Imposition of interest liability on the petitioner - personal hearing was not provided before the impugned orders were issued - violation of principles of natural justice - HELD THAT:- The petitioner has set out details of payment of requisite taxes in respect of the relevant assessment periods. The petitioner has also placed on record proof of payment of about Rs. 2 lakhs towards interest. In sub-section 4 of Section 75 of the applicable GST enactments, a personal hearing is mandatory if requested for or if an order adverse to the tax payer is proposed to be issued.
Under Circular No.13/2020-TNGST dated 17.08.2020, tax payers had the benefit of reduced rate of interest during specific months of the COVID-19 pandemic period. By taking into account all the aforesaid factors, albeit by imposing conditions, interference with orders impugned herein is warranted.
The orders impugned herein are set aside on condition that the petitioner remits an additional sum of Rs. 2 lakhs, in the aggregate, towards the demand under the orders impugned herein. Such remittance shall be made within three weeks from the date of receipt of a copy of this order - petition disposed off.
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2024 (6) TMI 1081
Violation of principles of natural justice - unreasoned impugned order - discrepancies in the returns filed by the petitioner and replied - HELD THAT:- On perusal of the impugned order, it is evident that no reasons are specified therein. As contended by learned counsel for the petitioner, the tax demand under the impugned order exceeds the amount specified in the show cause notice. In these circumstances, the impugned order cannot be sustained.
The impugned order is set aside by leaving it open to the respondent to initiate fresh proceedings in accordance with law - petition allowed.
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2024 (6) TMI 1080
Cancellation of GST registration of the petitioner - deposit as contended by the petitioner has been duly made - respondent submits that the department would have re-look at the issue of cancellation of the GST Registration - HELD THAT:- The order of cancellation dated 10.01.2024 is set-aside. The matter is remitted to the proper office to re-adjudicate the show cause notice dated 16.12.2023 in accordance with law within four weeks from today - It is clarified that this Court has neither considered nor commented upon the merits of the contentions of either party.
The petition is disposed off.
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2024 (6) TMI 1079
Validity of attachment order passed under Section 83 of the Central Goods and Service Tax Act, 2017 - expiry of one year from the date the order is made - HELD THAT:- It is conceded by learned counsel for the respondent that provisional attachment order was issued on 27.01.2022 and thereafter no fresh attachment order has been issued - It is held that the provisional attachment of the Bank Account No. 1711210216080640 with AU Small Finance Bank in the name of petitioner has ceased to have effect.
The respondent bank is accordingly directed to forthwith permit operation of the said bank account and not impose any embargo on the operation of the same based solely on the provisional attachment order dated 27.01.2022 - Petition allowed.
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2024 (6) TMI 1078
Cancellation of GST registration of the petitioner Company - cancellation on the ground that person issues invoices or bill without supply of goods or services or both in violation of the provisions of the Act, or the rules made thereunder - cancellation also on the ground that person does not conduct any business from declared place of business - HELD THAT:- The Appellate Authority has rejected the petitioner's appeal on the ground that the petitioner has not filed any memo of appeal and the grounds on which he is seeking restoration of registration are not clear. The Appellate Authority ought to have adopted the same yardstick while judging the validity of the impugned cancellation order passed by Assistant Commissioner, which also does not disclose any reason for cancellation of petitioner's registration. The mere mention of two sub-rules, without clarifying as to how those rules are being violated and what is the material to substantiate the allegation of violation of rules, would not give rise to a justified ground for cancellation of the petitioner's registration.
This Court is of the considered view that the impugned orders dated 18.03.2024 and 03.05.2024 are unsustainable in law.
Petition allowed.
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2024 (6) TMI 1077
Jurisdiction - Two SCN to one individual for different entities - SCN issued to petitioner in the capacity of individual as well as for proprietorship concern - Issuance of Multiple show cause notices - HELD THAT:- Appellant submits that once a notice was issued to Shashank Garg by the Commisisonerate at Panchkula, a separate notice could not have been issued in the name of the proprietorship concern by the Superintendent Commissionerate, Rohtak - The argument is misconceived while the petitioner individually may be a resident of the area governed under the jurisdiction of Commissionerate at Panchkula, proprietorship firm was situated at Jind, where the jurisdiction of Rohtak Commsissionerate would lie, it cannot be held that it was not having jurisdiction.
As regard the earlier show cause notice issued to the individual, is concerned, the same would have no effect nor can it be said that the notice issued to the firm of the petitioner namely M/s Garg and Company is without jurisdiction or that the Commissionerate at Rohtak is not empowered to examine the actions of the firm. The petitioner who as the proprietor of M/s Garg and company is always free to file appropriate reply, to the show cause notice and contest the same.
There are no reason to interfere at this stage with the show cause notice - appeal dismissed.
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2024 (6) TMI 1076
Violation of principles of natural justice - ex-parte order passed on merits without due consideration to the books of account supplied by the petitioner - HELD THAT:- This writ petition is disposed of with a direction that as soon as the president or state president enters office of the Goods and Service Tax Appellate Tribunal constituted under the Act of 2017, the petitioner would file an appeal that may be decided in accordance with law on its own merits. The statutory stay as provided under Section 112 (9) of Act of 2017 would remain in operation till the decision of such appeal. If the appeal is not filed within the prescribed period of limitation, the state would be at liberty to proceed against the petitioner for recovery of remaining taxes, interest and penalty if any.
Petition disposed off.
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2024 (6) TMI 1075
Challenge to appellate orders - declining to receive appeals filed by the petitioner as being barred by limitation - appeal rejected as being beyond the period of limitation prescribed in Section 107 of applicable GST enactments - HELD THAT:- The impugned appellate orders indicate that appeals were filed about 21 to 24 days beyond the period for which appeal could be condoned by the appellate authority. The petitioner has explained the reasons for such delay by pointing out that rectification petitions were filed and that appeals were filed shortly after such rectification petitions were rejected. The petitioner has remitted 10% of the disputed tax demand and, in addition, a sum of Rs. 1,26,02,698.80 was appropriated from the bank account of the petitioner towards the tax demand. In these circumstances, these are appropriate cases in which the appellate authority should be directed to receive and dispose of the appeals on merits.
The impugned appellate orders are quashed and the appellate authority is directed to receive and dispose of the appeals presented by the petitioner on merits without going into the question of limitation. Since a sum of Rs. 1,26,02,698.80 was appropriated pursuant to the bank attachment, the said bank attachment shall stand raised.
Petition disposed off.
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2024 (6) TMI 1074
Cancellation of GST registration of the petitioner - SCN does not mention any date, time or venue where the petitioner had to appear - violation of principles of natural justice - HELD THAT:- As per the respondents, there is material available to establish that the petitioner firm was involved in big scam of evasion of tax. However, it is conceded that the said material has not been provided to the petitioner in support of the show cause notice.
The impugned order dated 19.09.2023 is set aside. Proper Officer is directed to furnish all material that the Proper Officer may have in support of the show cause notice to the petitioner within one week from today - petition disposed off.
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2024 (6) TMI 1073
Penalty u/s 129 (3) of the Uttar Pradesh Goods and Services Tax Act, 2017 - proceedings subsequent to search of premises - HELD THAT:- In the present case, the proceedings under Section 129 (3) of the Uttar Pradesh Goods and Services Tax Act, 2017 have been initiated subsequent to search of the business premises of the petitioner.
It has been categorically held by the coordinate Bench of this Court in MAHAVIR POLYPLAST PVT. LTD. VERSUS STATE OF U.P. AND 2 OTHERS [2022 (8) TMI 410 - ALLAHABAD HIGH COURT] that search and seizure of the godown cannot result in penalty proceedings under Section 129 of the Act.
The present proceedings are not justified, and accordingly, the impugned orders dated March 21, 2018 and August 31, 2018 are quashed and set aside - petition allowed.
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2024 (6) TMI 1072
Recovery of CGST, SGST amount and KFC amount - search and seizure of business premises - failure to supply the documents demanded - violation of principles of natural justice - HELD THAT:- The petitioner has not filed any reply to the show cause notice. The petitioner says that the petitioner has not been supplied with the documents demanded by him as mentioned in Ext. P4 and in the absence of those documents, the petitioner is unable to file reply to the show cause notice. The petitioner has approached this Court for a direction/mandamus to the respondents to supply the documents to enable him to file the show cause notice thereafter proceed with the law.
Standing Counsel for the respondents submits that the documents, as specified, shall be supplied within three days. Petition allowed to file reply within 10 days thereafter.
The present writ petition stands finally disposed of.
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2024 (6) TMI 1071
Short payment of tax - availing excess ITC and utilized the same - initiation of proceedings by issuing intimation under Section 61 of the WBGST Act which is yet to be concluded - pendency of such proceedings can be a bar in issuing the instant show cause notice or not - HELD THAT:- It prima facie appears to this court that such issue has been settled as indicated in para 2 of the Audit Report dated 16-04-2021. This court is not unmindful of the well settled preposition of law that the scope of interference at the stage of show cause notice is very limited. However the grounds of challenge to the show cause notice in the case on hand, touches upon the jurisdictional issue, for which this writ petition is entertained.
List this matter under the heading hearing immediately after expiry of the time fixed for exchange of affidavits.
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2024 (6) TMI 1070
Proceedings for an offence u/s 276-B - non-payment/belated remittance of the TDS - Failure to pay tax to the credit of Central Government - interpretation given to term “reasonable cause” - HELD THAT:- A fair look at the explanation and reply which was given by the Petitioners to the show-cause notice would reveal that the Petitioners have furnished the information as to when they received the fee reimbursement from the Government relating to the students, whose admissions occupied lion’s share i.e., 90%. It appears 90% of the students were admitted on fee reimbursement scheme. That being the case, when the Petitioners filed the documents to show that they have not received fee reimbursement within time and immediately after receiving the fee reimbursement amount, they have remitted the amount to the Government Account, which is conveniently ignored by the Respondent Authorities.
A cursory look at the proceedings of the learned Commissioner would show that the Petitioners have not furnished any information to buttress their contention that because of the delay in grant of fee reimbursement by the Government of Andhra Pradesh, they could not remit the amount to the Central Government Account within time.
As decided in M/s US Technologies International Pvt. Ltd. [2023 (4) TMI 418 - SUPREME COURT] on interpretation of Section 271C which is a penal provision, it is clear that on mere belated remittance, no penalty shall be leviable. In the course of the judgment, the Hon’ble Apex Court also referred to various other provisions including Section 276-B and observed that the consequences of consequences on non-payment/belated remittance of the TDS would be under Section 201(1A) and Section 276B of the I.T. Act.
Taking a decision to prosecute any person for violation of the provisions under Section 276B, is subject to Section 278AA of I.T. Act, and when the Petitioners are able to establish the reasonable cause for the delay in remittance of the amount to the Central Government Account though deducted the tax at the source. It is a case of appreciation of a point on factual aspect as to the satisfaction of the Authorities on the point of reasonable cause. In the present case, learned Commissioner for Income Tax conveniently ignored the material placed by the Petitioners to establish that there was a reasonable cause for their failure to remit the amount within a stipulated time.
This Court is of the considered view that the reason provided by the Petitioner for the delay in remitting the amount to the Central Government is sufficient to constitute “reasonable cause” in view of Section 278AA of the I.T. Act and hence criminal prosecution against the Petitioners is not warranted. Decided in favour of assessee.
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2024 (6) TMI 1069
TDS u/s 195 - remittance made by the assessee to foreign parties on account of purchase of certain computer software, required for the business of the assessee, would be liable to tax in India as “royalty” under the provisions of Section 9 (1) (vi) or would it be a business income of the recipient companies - HELD THAT:- It is not in dispute that transactions in the present case are similar to what had fell for consideration of Engineering Analysis Centre of Excellence (P.) Ltd [2021 (3) TMI 138 - SUPREME COURT] Also there is no dispute that there is a DTAA entered with the countries in question, with whose residents the transactions were entered into by the assessee.
It is clear that the approach of the AO in the present case was against the correct position in law as held by the Tribunal, and now also endorsed by the Supreme Court in Engineering Analysis Centre of Excellence (P.) Ltd [2021 (3) TMI 138 - SUPREME COURT]. In this view of the matter, we are in agreement with Mr. Madhur Agarwal that these four Appeals would not give rise to the question of law as noted by us hereinabove.
As fairly pointed out for the parties, as the facts are not in dispute as also the DTAA in question applicable we are not discussing the facts involved in each of these Appeals.
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2024 (6) TMI 1068
Validity of appeal filed u/s 260A - Bogus LTCG - whether any substantial question of law has arisen for consideration? - reexamining appellant's additional documents obtained through the Right to Information Act - as argued Tribunal has failed to consider the report of the Securitisation and Exchange Board of India in its proper perspective
HELD THAT:- CIT(A) brought out the modus operandi and has recorded finding as to how the claim for long-term capital gain is a bogus claim. The conclusion arrived at by the Tribunal has also been supported by various decisions of the courts including of this Court in the case of Swati Bajaj [2022 (6) TMI 670 - CALCUTTA HIGH COURT]
As the appellant would strenuously contend that certain documents were not available with the assessee at the relevant point of time and subsequently on being advised, applications were made under the Right to Information Act and information was sought for from several people and documents have been obtained which have been enclosed in the stay petition - As submitted by the appellant that these documents should be permitted to be placed before the learned Tribunal or before the CIT(A) so that the factual aspects can be re-examined and a correct conclusion can be arrived at. Unfortunately, such exercise cannot be done by this Court in an appeal filed u/s 260A of the Act. Be that as it may, the reliance placed on the order passed by the adjudicating authority of the Securities and Exchange Board of India (SEBI) is thoroughly misplaced since the said order does not examine the specific transaction done by the assessee with respect to the shares of Sulabh Engineers & Services Ltd.
Therefore, placing reliance on the said order passed by the SEBI in no manner, improve the case of the assessee. Be it noted that this Court exercising jurisdiction under Section 260A of the Act is required to consider as to whether any substantial question of law has arisen for consideration and this Court cannot be converted into an appellate Tribunal to examine the factual issue which was never placed by the assessee before the Assessing Officer or before the CIT(A) or before the Tribunal.
No grounds to interfere with the order passed by the Tribunal and as we find no substantial question of law arises for consideration, the appeal is dismissed.
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2024 (6) TMI 1067
Validity of assessment u/s 153A - assess or reassess the total income of six assessment years - whether search conducted u/s 132 did not yield any incriminating material pertaining to the appellants/assessees for the said assessment years - HELD THAT:- As per the amended provisions of Section 153A of the I.T. Act, while the unearthing of incriminating material would unambiguously clothe an AO with the jurisdiction to initiate proceedings in terms of Section 153A of the I.T. Act for the block period of six years contemplated under that Section, when it comes to passing fresh assessment orders in respect of each of those assessment years comprised in the block of six assessment years, AO must necessarily relate such unearthed incriminating material to the assessment year in question.
This is more so in view of the specific provisions u/s 153A (b), which requires the AO to assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which the search was conducted or the requisition made, and the proviso thereto which mandates that the AO shall assess or reassess the total income in respect of each assessment year falling within such six assessment years.
In our view, the statutory provision gives a clear indication that, based on the material obtained during the search, the AO who gets the jurisdiction to re-open the assessments, can do so in respect of the individual assessment years comprised in the block period of six years only if the material obtained during the search under Section 132 of the I.T. Act, or any part thereof, relates to the assessment year in question. In the appeals before us, since it is not in dispute that the materials obtained during the search conducted on 21.08.2007 pertain only to the assessment year 2008-09, and there was no incriminating material against the appellants/assessees pertaining to the assessment years 2002-03 to 2007-08, the finding of the Appellate Tribunal reversing the orders of the First Appellate Authority, cannot be legally sustained.
we set aside the orders of the Appellate Tribunal, to the extent impugned herein, and answer the substantial questions of law raised by the appellants/assessees in favour of the assessees and against the Revenue.
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