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2024 (9) TMI 1362
Invocation of writ jurisdiction of this Court under Article 226 of the Constitution of India, 1950 - initiation of process of fresh voting on the Resolution Plan of the Petitioner after taking into consideration - principle of equality and fairness - HELD THAT:- This Court is not inclined to issue notice for the elementary reason that the petitioner has an alternative and efficacious remedy to assail the impugned action or inaction on the part of the CoC, if any, before the NCLT.
It is well ordained in law that the Adjudicating Authority alone has the jurisdiction to regulate the conduct of the CoC and finally adjudicate upon the resolution plan through the powers of judicial review and thereby ensure that the CoC functions as per the role and responsibilities delineated under the IBC. In other words, the Adjudicating Authority maintains a supervisory role over the entire CIRP proceedings and is empowered under Section 60 of the IBC to take action on any issue relating to the insolvency proceedings. Thus, the resolution plan decided by the CoC shall be put up for consideration before the Adjudicating Authority, which forum alone shall finally decide whether the CoC has performed its fiduciary duty as per the legislative mandate of the IBC.
This Court is not enjoined upon to exercise its power of judicial review and thereby usurp upon the powers of the NCLT to inquire into the commercial wisdom of the CoC whereby the Resolution Plan of the petitioner was rejected vide impugned letter dated 18.09.2024.
In the end, a last desperate attempt is made by the petitioner that it is willing to renew its offer and match the offer given by the SRA in every aspect, but the same cannot be entertained by this Court. Although there is no gainsaying that in matters of public funds auction the best methodology for discovering fair value and the principle criteria is to ensure maximizing the recovery, the bottom line is that the decision of the CoC shall definitely be considered by the NCLT in a just and expedient manner, and if it deems fit it, may even allow “Open Court Bidding” in accordance with law - the present writ petition is dismissed with liberty to the petitioner to take appropriate recourse before the NCLT, which forum alone shall decide the objections of the petitioner, if any preferred, on its own merits in accordance with law.
Petition dismissed.
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2024 (9) TMI 1361
Provisional attachment of certain immovable and movable properties of the appellants herein - money laundering - proceeds of crime - burden to prove - offences punishable under section 409,420,423,424,465 &120B of IPC,1860 and Section 7,10,11 and 13 of Prevention of Corruption Act, 1988 - disproportionate assets - HELD THAT:- There are no cogent evidence that the property was acquired out of known sources of income. The appellant has claimed various sources of income, including substantial agricultural income, rental income, contract work etc., but no reliable proof has been adduced in respect of any of these. ITRs have been filed belatedly, after investigations began and even considering the best case scenario of the returns being accepted at face value, the same are not sufficient to explain the actual purchase consideration for the subject land. The legal position is undisputed that once a notice under Section 8(1) of PMLA, 2002 is issued, it is for the noticee to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached under Section 5(1), the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in money laundering and confiscated by the Central Government. Further, the presumption in inter-connected transactions under Section 23 as also the presumption under Section 24 is against the appellant.
There are no merit in the contention that the Ld. AA has not considered the definition of "proceeds of crime" under PMLA, 2002. Even at the relevant time (prior to the amendments of 2015 and 2019), the definition of proceeds of crime took within its sweep any property derived or obtained, directly or indirectly, by any person "as a result of" criminal activity "relating to" a scheduled offence and even "the value of any such property". The term property was also very widely defined to mean property of every kind, whether corporeal or incorporeal, movable or immovable, tangible or intangible. It also includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located.
Having perused the contents of the order carefully and the evidence of the written agreement on nonjudicial Stamp Paper, the value of the attached property should rightly be reflected as Rs. 60,00,000/- and not Rs. 4,37,500/- - there are no reason to interfere with the order of the Ld. Adjudicating Authority - appeal dismissed.
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2024 (9) TMI 1360
Short payment of service tax - courier agency services - difference in income reflected in ST-3 returns and profit and loss account, due to the exempted services provided - period 2006-07 to 2010-11 - HELD THAT:- In the case of GIHED documents, the appellant has billed the multiple exhibitors of GIHED in their individual names C/o GIHED Stall No., Penta Freight Pvt. Limited has billed in the name of appellants while issuing Housed Airway Bill in the name of GIHED, Ahmedabad with destination at GIHED, World Gujarati Conference, USA and airlines Jet Airways/Continental Airlines has issued Air-Way Bill to Penta Freight Pvt Limited. Whereas the bills issued by the appellants to individual exhibitors ranges approx. from 250 Kgs to 1000 kg. per consignment, Housed Airway Bill/ Airway Bill issued by Peta prefight Pvt Limited/ Airlines are 5000 Kg. plus thus aggregating multiple consignments of the exhibitors. The description as per Airway Bill reads as “ Exhibition cargo as for display purposes only”.
It would be pertinent to mention that the “time sensitive documents, goods or articles” would be such volume/ weight that an individual could handle the same and deliver it personally. The expression “utilizing the services of a person” to our view mean that the “person” here means an individual and not a juristic person. As is a trade practice and as suggested by the above definition, small goods or articles capable of being handled and delivered by an individual would be covered under the definition of courier service - Larger consignments howsoever may be time sensitive or the requirement for door-to-door delivery, would not be classified as courier services but as cargo. Another factor which is crucial to examine is that normally a courier agency aggregates small consignments of documents, goods or articles and there are different senders and the place of destination for door-to door delivery - when a “courier agency service” is provided for door-to-door delivery, all the transporters taking responsibility to deliver the consignment from the booking stage to the final door delivery would fall under the courier agency service and the cascading effect of taxation can be avoided by input credit claim. It is now well established that a sub-contractor is obliged to discharge tax independent of the main contractor.
There are no record/ data to examine other than the above two specific consignments, we are constrained to remand back the case to the original authority to examine the documents of the appellants afresh in the light of above observations - appeal allowed.
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2024 (9) TMI 1359
Failure to pay service tax - Non-Utilization (NU) Penalty - Water Supply Charges - Miscellaneous Receipts - Transfer Charges - Infrastructure Up gradation fund - HELD THAT:- It has been accepted in the impugned order that the “Infrastructural up-gradation fund” and “transfer fees” were covered under article 243W which is a statutory function of the state government covered under the expressions “Regulation of land use and construction of buildings,' 'Roads and bridges,' and 'Planning for economic and social development” and GIDC is a state undertaking which is performing these functions in the state for development of industry in the state. Once it is accepted that these are the statutory functions of the state, the same cannot be exigible to tax under the period prior to 01.07.2012 also. Further misc. receipts which are stated to be in respect of as sub- letting fees, subdivision charges, amalgamation fees, collateral fees are nothing but necessary for orderly regulation of industrial estate and are for of the infrastructural development activity only. It is an avowed statutory duty of the state to develop industry in the state and any charges collected for such making such development cannot be subjected to tax.
The “infrastructure up-gradation fund”, “transfer fees” and other misc. charges in respect of in respect of as sub-letting fees, subdivision charges, amalgamation fees, collateral fees are necessary for maintenance, management and repairs of the industrial estate under Gujarat Industrial Development Corporation (GIDC), established under the Gujarat Industrial Development Act, 1962 and are not subject to service tax during the impugned period of either before or after 01.07.2012 - no service tax could be charged on the share of “IUF” which was collected from the leaseholders on behalf of the Industrial Associations and reimbursed to them as those does not qualify as consideration for any service provided by GIDC.
The impugned order is set aside - appeal allowed.
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2024 (9) TMI 1358
Taxability of Works Contract Services provided by the appellant - Whether the benefit of entry 12 A (a) of notification 25/2012 was available only for such contracts as were executed before 01.03.2015? - extended period of limitation.
HELD THAT:- Sr. No. 12 of Mega Exemption N/N. 25/2012-ST dated 20.06.2012 as amended vide N/N. 6/2015 dated 01.03.2015 is reported below vide which the entry at serial no. (c) above, was omitted vide N/N. 6/2015-ST dated 01.03.2015 with effect from 01.04.2015. This Perusal is sufficient to hold that for the period in dispute, the condition that contracts for rendering construction/WCS services to be executed prior to 01.03.2015 was no more in existence as it was omitted with effect from 1.04.2015. Resultantly the services as that of construction provided to Government/ local authority/Governmental authority remain exempted from entire service tax liability irrespective the date of contract for the purpose is post 01.03.2015.
In the present case the contract is 19.08.2015 i.e. post-1.04.2015 hence, the condition of contract to be executed prior 1.03.2015 is held to have wrongly being relied upon/invoked by the adjudicating authority below while confirming the demand of Rs.9,56,210. Admittedly the Service in question has been rendered to government/ local authority (PWD) In light of the above the discussion the said demand is held liable to be set aside.
Extended period of limitation - HELD THAT:- It is observed that the non-filing of ST-3 returns is alleged as the act of suppression. However, it has been observed that even in reply to the show cause notice, the appellant had explained that exemption being arising from notification 25/2012 has been the reason to not to file the returns. The said contention of appellant has been accepted, there is no act of suppression being committed by the appellant. Present is not the case of evasion of service tax. Hence, it is held that extended period has wrongly been invoked. The show cause notice itself therefore gets barred by time. The order under challenge, upholding the invocation of extended period is therefore held liable to be set aside.
The order under challenge/ O-I-A is hereby set aside - Appeal allowed.
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2024 (9) TMI 1357
Valuation - related person - inter-connected undertakings - seller and alleged buyers of the goods are related persons in terms of Section 4(3)(b) of the Central Excise Act or not - mutuality of interest - it was held by CESTAT that 'The transaction value of the goods between respondent and the so-called interconnected undertaking is correct valuation and the same cannot be disturbed, therefore, there are no merits in the appeal of revenue.'
HELD THAT:- No case is made out to interfere with the impugned judgment and order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Ahmedabad.
The Civil Appeal is accordingly dismissed.
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2024 (9) TMI 1356
Cash seizure - sale proceeds of clandestinely removed goods - pre-deposits made under section 35FF of the Central Excise Act - whether Respondents are justified in granting interest @6% per annum on the refund of cash seized although the said cash seized was deposited in fixed deposit and earned interest at more than 6% per annum? - HELD THAT:- On a reading of Circular 984 of 2014, the contention raised by Respondents to justify interest @6% per annum is erroneous. The said Circular was issued in the light of amendments made to section 35F of the Central Excise Act and 129E of the Customs Act whereby these sections were substituted by section 35FF and section 129EE, respectively, providing for certain percentage of the demand to be paid as a condition precedent for entertaining the appeal. It is also important to note that in the present case cash was seized on 29th August 2011 and therefore appropriation of cash seized during investigation towards any pre-deposit as a condition for filing an appeal also cannot arise. Therefore, the contention raised by Respondents to justify the impugned O-I-O on this count is to be rejected.
The Petitioner has not brought to our notice any provision to justify claim of interest @18% per annum and therefore such a claim cannot be granted to Petitioner. However, Petitioner’s alternative submission on grant of interest at the actual rate which the fixed deposit has earned is certainly required to be considered.
In the present case it is undisputed that at no point of time the cash seized was appropriated towards final tax dues and rightly so because the order discharging Petitioner of tax dues had attained finality. It is settled position that a trustee cannot enrich himself on behalf of the person for whom the money is held in trust. A trustee is supposed to account for each and every sum of money which is held in trust on behalf of the beneficiary. In the instant case, therefore, action of Respondents in granting interest @6% per annum when the fixed deposits arising out of cash seized from Petitioner have earned more than 6% per annum cannot be justified and Respondents are duty bound to handover the entire amount of interest which they have earned - Admittedly Petitioner cannot be faulted on account of this and Respondents have while granting interest, has granted interest for the period post the expiry of 10 years and Petitioner in his calculation has also reduced the same for arriving at the final claim.
An inquiry should be initiated by Respondents to ascertain the accountability on this aspect and fix the responsibility by taking appropriate action against the persons found negligent for non-renewal of the fixed deposits.
The impugned O-I-O dated 5th July 2024, Exhibit A to the petition is quashed and set aside - petitioner is not entitled to interest @18% per annum. However, is entitled to sum of Rs. 90,07,829/- being the interest in excess of 6% earned on fixed deposits arising out of cash seized from Petitioner - petition disposed off.
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2024 (9) TMI 1355
Valuation of the goods cleared by the appellant under section 4 of the Act read with Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - follow up demand for an earlier order passed for the period October 2010 to July, 2015 - Extended period of limitation - HELD THAT:- This bench had, by final order No. 51135 of 2022 dated 02.12.2022 [2022 (12) TMI 450 - CESTAT NEW DELHI] held that 'Evidence in the case is insufficient to hold that the appellant and its buyers Vandana and Shivali are interconnected undertakings and there is no allegation or evidence that they are related in any other manner. Even if they are inter-connected undertakings but are not related in any other manner, valuation has to be done as per Valuation Rule 10(b) as if they are not related persons and the demand would not sustain.' - This order was passed setting side the order-in-appeal dated 15.02.2018 passed by the Commissioner (Appeals) for the relevant period.
In the present appeal, the Assistant Commissioner and the Commissioner (Appeals) followed the previous order of the Commissioner (Appeals) dated 15.02.2018. Since the order dated 15.02.2018 is set aside, this appeal also needs to be allowed and the demand needs to be set aside.
The impugned order is set aside - appeal allowed.
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2024 (9) TMI 1354
100% Export Oriented Unit (EOU) - Utilization of cenvat credit for payment of duty on goods cleared to domestic tariff area (DTA) by an Export Oriented Unit (EOU) - appellant discharged the said duty liability as per Notification 52/2003 but by utilizing the cenvat credit - HELD THAT:- From the facts of the case, it is obvious that the amount to be paid at the time of clearance of imported goods to DTA in these circumstances is custom duty and therefore, any demand of duty in respect of such goods can only be customs duty. Customs duty cannot be discharged by utilizing cenvat credit as the cenvat credit rules do not prescribe such utilization. However in the instant case, no demand of custom duty has been made but demand of Central Excise duty has been made.
From the decision in MATRIX LABORATORIES LTD AND MYLAN LABORATORIES LTD VERSUS COMMISSIONER OF CENTRAL TAX MEDCHAL - GST (VICE-VERSA) [2023 (6) TMI 458 - CESTAT HYDERABAD] also it becomes clear that in respect of imported inputs cleared by EOU only demand of custom duty can be made under Section 28 of the Customs Act, 1962 in respect of inputs obtained duty free cleared to DTA by EOU, the same can be cleared on payment of Central Excise duty and in such cases, notice under Section 11A of the Central Excise Act, 1944 can be raised - In the instant case, the notice has been issued invoking Section 11A(5) of the Central Excise Act and same is not proper provision for demanding the Custom duty. In the instant case, no violation of provision of Notification 52/2003 has been cited for demanding the said duty. The provisions of Section 28 of the Customs Act have also not been invoked and consequently, the show cause notice issued under Section 11A(5) of the Central Excise Act, 1944 for recovery of custom duty is void ab initio.
The proceedings initiated by said show cause notice cannot, therefore be sustained - The impugned order is set aside and appeal is allowed.
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2024 (9) TMI 1353
Constitutional validity of Section 33 (5) of the Haryana Value Added Tax Act, 2003 - waiver of condition of pre-deposit of surety bond or bank guarantee - inability to furnish security in the form of surety bond or bank guarantee - HELD THAT:- While power does not lie with the appellate authority to waive the condition of pre-deposit of surety bond or bank guarantee in terms of Section 33 (5) of the HVAT Act, however, this Court is not precluded under Article 226 of the Constitution of India to direct the appeal to be heard without insisting upon the precondition.
It is true that the Supreme Court in M/s Tecnimont Private Limited [2019 (9) TMI 788 - SUPREME COURT] considered a separate set of provisions, however, we do not agree with the learned State counsel that merely because under Section 33 (5) of the HVAT Act the requirement is not of actual deposit but submitting a bank guarantee or adequate security to the satisfaction of the assessing officer. The provision has to be read differently. While such a provision may exist on the statute, the circular issued asking for irrevocable bank guarantee or security in the form of surety bond is too onerous a condition.
This Court is satisfied that the petitioners before us would not be in a position to submit security in the nature of surety bond as in all the cases the company or the concerned Directors would be required to have property worth the said amount which they do not possess. A person cannot be left remediless, and in view thereto, as opined in M/s Tecnimont Private Limited and Smt. P. Laxmi Devi [2019 (9) TMI 788 - SUPREME COURT] the Joint Excise and Taxation Commissioner (Appeals), Faridabad, is directed to hear the appeals without insisting upon the pre-condition required under Section 33 (5) of the HVAT Act and decide the appeals on merits.
Since the concerned appellate authority would not have the power to waive off the pre-deposit as required under Section 33 (5) of the HVAT Act, the order passed by the Haryana Tax Tribunal, Chandigarh, upholding the order of the Joint Excise and Taxation Commissioner (Appeals), Faridabad, in refusing to entertain the appeal without submitting surety bonds or pre-deposit cannot be said to be illegal - appeal disposed off.
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2024 (9) TMI 1352
Seeking laying down appropriate guidelines to be followed by all including the police officials and Judicial Magistrate to desist from initiating or directing initiation of criminal proceedings - HELD THAT:- In the case on hand, the Enforcement Directorate, New Delhi, was impleaded as a party respondent in the writ petition on 04.07.2023, by way of the final order disposing of the case. The final order was passed without putting it on notice and affording it an opportunity of hearing. Therefore, the directions of this Court in the said order in relation to ECIR No. ECIR/HIU-1/06/2023 cannot be sustained. More so, as the final order only records that the interlocutory applications for impleadment and to bring on record additional facts were allowed and no more.
Further, though this Court relegated the writ petitioners to the jurisdictional High Courts for challenging the FIRs registered against them, certain errors crept in by oversight while doing so. As regards FIR No. 197 of 2023, this Court directed that no coercive steps should be taken in relation thereto against the petitioner financial institution and its people till final disposal of such a petition by the High Court. Having said that, this Court went on to observe that it would be open to the writ petitioners to seek stay of proceedings in relation thereto, which was to be considered by the High Court on merits.
When a party is relegated to the High Court to pursue its remedies, it would not be proper, in the normal course, to bind the said High Court with directions in relation to the proceedings to be impugned before such Court. Ordinarily, this Court would leave all issues open for the party so relegated to raise and pursue before the High Court.
The miscellaneous applications and the interlocutory applications are disposed of accordingly.
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2024 (9) TMI 1351
Levy of GST - pure agent or not - IIT Roorkee - Real Estate Owners, Resident Welfare Associations (RWAs), Real Estate Developers etc. as referred in circular No. 206/18/2023-GST dated 31st October’2023 or not - electricity charges that it recovers from its commercial occupants against the consideration that represents only-reimbursement of actual cost of Electricity charges (on the basis of sub-meter / separate meter) that is being charged by Uttarakhand power corporation limited (UPCL) to the IIT Roorkee - HELD THAT:- On considering the first proviso to section 98 (2) of the Act comprehensively, it is apparent that the first proviso covers any “proceedings” in the case of an applicant under any of the provisions of the Act including Section 65 of the Act, under which Audit under section 65 of the CGST Act, 2017 was conducted by the CGST Audit Commissionerate, Dehradun. It is found that such situation have been covered under sub section (2) of the Section 98 of the Central Goods And Services Tax Act, 2017.
The proviso to sub section 2 of the Section 98 of the Central Goods And Services Tax Act, 2017, could be best interpreted that the legislative intent in its wisdom is to empower the advance ruling authority to reject the application in the cases where there is repeated filing of the application before the advance ruling authority on the same issue which is either pending for decision or already decided.
It is observed that during the personal hearing, the applicant’s representatives were specifically asked about the issue raised in the instant application and the issue raised by the CGST Audit Commissionerate, Dehradun, wherein it was admitted by them that the issue concerning applicability of GST on electricity charges recovered from their commercial occupants viz.-a-viz. pure agent is identical and similar in nature as raised by the Department in their audit proceedings. It was also accepted by them that they had voluntary deposited the entire GST liability along with interest through DRC-03 dated 14.03.2023.
The applicant has approached the authority again, for the identical and similar issues and hence we observe that the applicant has approached this authority, on the issue which has already been decided in applicant’s own case under the provisions of the Central Goods And Services Tax Act, 2017 and hence in terms of section 98 (2) of the Central Goods And Services Tax Act, 2017, the present application is not admitted and rejected without going into the merits of the case.
The subject application for advance ruling made by the applicant is not maintainable and hereby rejected under the provisions of Section 98 (2) of the CGST Act, 2017 and UK GST Act, 2017.
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2024 (9) TMI 1350
Challenge to order-in-original - order has been passed beyond the period of limitation provided under Section 73 (10) of both the Central Act as well as the State Act - HELD THAT:- This Court had duly heard the learned counsels appearing on behalf of the parties and has given anxious consideration to the respective submissions. It is seen that there is no Notification passed under Section 168 A of both the Central Act as well as the State Act, thereby extending the period for passing the order in terms with Section 73 (10) beyond 30.04.2024 for the financial year 2018-19.
Taking into account that the impugned order has been passed on 04.05.2024, the same is, therefore, without jurisdiction and accordingly is set aside and quashed.
Petition disposed off.
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2024 (9) TMI 1349
Wrongful availment of Input Tax Credit - registration of certain suppliers from whom the petitioner had availed the supplies, was cancelled - HELD THAT:- The petitioner responded to the impugned SCN on 30.10.2023 claiming that at the material time the suppliers from whom the petitioner had availed the supplies were registered under the CGST Act and the SGST Act. The petitioner also stated that it had paid the amount of invoice raised by the said suppliers, which included the Goods and Services Tax (GST) and, therefore, the petitioner was entitled to avail the ITC as claimed - It appears that said contention has not been examined by the adjudicating authority as the impugned order does not reflect any such consideration.
The impugned order is set aside. The petitioner is granted one more opportunity to file all documents and material in support of his contention that it is entitled to avail ITC within two weeks from date - petition disposed off by way of remand.
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2024 (9) TMI 1348
Liability to clear statutory dues, post-insolvency proceedings under the Insolvency and Bankruptcy Code 2016 - It is contended that the resolution plan, which was approved by the NCLT, on 04.09.2019, provided for payment of Rs. 25 crores towards clearing all the statutory dues, including claims by all Government authorities - HELD THAT:- The question of extinguishment of liability of corporate which have undergone the CIRP process came to be considered by the Hon’ble Supreme Court of India in the case of Ghanshyam Mishra and Sons Pvt. Ltd. Vs. Edelweiss Asset Reconstruction Company [2021 (4) TMI 613 - SUPREME COURT]. The Hon’ble Supreme Court held that 'On the date of approval of resolution plan by the adjudicating authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan.'
In the circumstances, it must be held that the liability of the petitioner, arising out of the AP VAT Act or the GST Act stands extinguished to the extent of its liability up to 4th September, 2019.
The contention of the learned Government Pleader for Commercial Taxes that the order of NCLT is not binding on the State of Andhra Pradesh in view of Section 88 of the GST Act would have to be negatived in as much as Section 238 of the Insolvency and Bankruptcy Code provides for a non-obstante clause overriding all other laws.
Both the Writ Petitions are allowed by setting aside the Demand-cum-Adjudication orders dated 03.06.2023, issued by the Assistant Commissioner (ST)(FAC), Kakinada and the order dated 25.11.2023 passed by the Deputy Commissioner (ST), Vijayawada - Petition allowed.
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2024 (9) TMI 1347
Flawed SCN - it is contended that notices issued u/s 73 of the Central Goods and Services Tax (CGST) Act, 2017, are flawed due to the improper consolidation of multiple tax periods into a single show cause notice - HELD THAT:- This Court finds that the respondent erred in issuing a consolidated show cause notice for multiple assessment years, spanning from 2017-18 to 2020-21.
Section 73 (10) of the CGST Act mandates a specific time limit from the due date for furnishing the annual return for the financial year to which the tax due relates. The law stipulates that particular actions must be completed within a designated year, and such actions should be executed in accordance with the law's provisions. The principles enunciated in the judgment cited by the Hon’ble Supreme Court in THE STATE OF JAMMU AND KASHMIR AND OTHERS VERSUS CALTEX (INDIA) LTD. [1965 (12) TMI 125 - SUPREME COURT]
are directly applicable to the present case.
This Court concludes that the show cause notices issued by the respondent are fundamentally flawed. The practice of issuing a single, consolidated show cause notice for multiple assessment years contravenes the provisions of the CGST Act and established legal precedents.
Petition allowed.
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2024 (9) TMI 1346
Levy of Cess while calculating the applicable tax under section 129 (1) (a) of the KGST and CGST Act - contention regarding the levy of Cess was not raised before JCCT (Appeals) - HELD THAT:- Since the ground regarding the levy of Cess is raised for the first time before this Court hence, in my opinion, an opportunity may be accorded for the petitioner to raise this as a ground before the Joint Commissioner of Commercial Taxes (Appeal). Therefore, the matter requires a remand.
The Writ of Certiorari is ordered. The order dated 17.09.2021 passed by the Joint Commissioner of Commercial Taxes (Appeals), Dharwad Division, Hubli in Appeal No. GST-05/2019-20 vide Annexure-A is quashed. The matter is remanded to the Joint Commissioner of Commercial Taxes (Appeals) permitting the petitioner to raise the ground regarding the levy of Cess. All other contentions are kept open - Petition allowed by way of remand.
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2024 (9) TMI 1345
Wrongful availment of input tax credit while filing return in Form GSTR-3B, for the year 2017-18 - HELD THAT:- The petitioner failed to make use of the opportunity given to him to respond to the notices issued prior to the issuance of Ext. P4 order. However, the fact remains that the input tax credit claimed in Ext. P5 was so claimed at a time immediately after the introduction of GST and when the procedures were not fully clear to all the assessees. It is also evident from the record that the petitioner had not utilized the input tax credit claimed in Ext. P5 and had actually filed Ext. P6 return in the month of August 2018, reversing the input tax credit claimed in Ext. P5.
The petitioner is an honest taxpayer, who had noticed his mistake and had taken steps to rectify the same by filing Ext. P6 return during the month of August-2018. Section 39 (9) of the CGST/SGST Acts indicates that where a registered person is required to revise any return filed by him, the same has to be done before the 30th day of November of the year following the financial year to which such details pertain. Therefore, in the facts of the present case, the petitioner had time till 30.11.2018 to file an application for rectification of any incorrect particular in Ext. P5. The petitioner filed Ext. P6, reversing the input tax credit wrongly claimed in Ext. P5, in the month of August-2018.
The writ petition is allowed by setting aside Ext. P1 and remitting the matter for fresh consideration of the 1st respondent, who shall pass fresh orders in the matter, after affording an opportunity of hearing to the petitioner.
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2024 (9) TMI 1344
Challenge to assessment order - cancellation of registration of the petitioner - HELD THAT:- The impugned orders can be set aside and the matter can be remitted to the file of the Jurisdictional Assessing Authority, namely the 1st respondent. It is inclined to do so taking into consideration the fact that the registration of the petitioner had been cancelled in the month of December 2021 and also taking into consideration the submission of the learned counsel for the petitioner that the petitioner had also stopped business thereafter.
This writ petition will stand ordered directing that if the petitioner remits a sum of Rs.10 lakhs towards the GST liabilities for the months of July and August of 2017, within a period two weeks from the date of receipt of a certified copy of this judgment, Exts.P5, P5(a), P6 and P6(a) orders will stand set aside and the matter will stand remanded to the files of the 1st respondent, who shall pass fresh orders, after affording an opportunity of hearing to the petitioner.
Petition disposed off.
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2024 (9) TMI 1343
Inability to file appeal under Section 107 of the CGST / SGST Acts against Ext.P3 order on account of the fact that the order has not been uploaded on the portal - It is the specific case of the petitioner that though it attempted to file the appeal manually as per the proviso to sub-rule (3) of Rule 108 of the CGST / SGST Rules, the same was not accepted by the Appellate Authority - HELD THAT:- This writ petition will stand disposed of directing that the petitioner shall be permitted to file an appeal against Ext.P3 order, manually, as contemplated by the proviso to sub-rule (3) of the Rule 108 of the CGST / SGST Rules provided such appeal is filed within a period of one week from the date of receipt of a certified copy of this judgment. If such appeal is filed within the aforesaid period, the same shall be treated as an appeal filed in time and shall be disposed of by the Appellate Authority, in accordance with the law, after affording an opportunity of hearing to the petitioner.
The writ petition will stand disposed of.
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9911796707
