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Showing 461 to 480 of 1564 Records
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2024 (8) TMI 1104
Levy of service tax - Commission/brokerage received from Shipping Lines - Cargo handling services - Difference on ocean freight collected and paid to shipping lines - Director Sitting fees - GTA services.
Director Sitting fees - HELD THAT:- The Appellant has accepted the demand of service tax of Rs.2,96,020/- confirmed in the impugned order on the ‘Director Sitting Fees’ and contested the remaining demands. Regarding the demand of Rs.2,96,020/- confirmed on the Director Sitting Fees, it is observed that the Appellant has already paid this amount, but not paid the interest. Accordingly, the demand of service tax upheld along with interest confirmed in the impugned order on this count. As there is no suppression of fact with intention to evade the tax established in this case, no penalty is imposable on the Appellant on this demand confirmed and upheld.
Commission/brokerage received from Shipping Lines - HELD THAT:- There is no taxable service rendered by the appellant to the shipping lines and the commission earned is on account of booking of cargo with the shipping lines over the years. This amount is not liable for service tax under the category of business auxiliary service, as there is no agreement of 'commission agent' between the Appellant and shipping lines - This view has been taken by the Larger Bench of the Tribunal in the case of Kafila Hospitality & Travels Pvt. Ltd. [2021 (3) TMI 773 - CESTAT NEW DELHI (LB)], wherein it has been held that the commission earned for selling of space by the shipping lines is not liable to service tax under the category of ‘business auxiliary service’ - the demand confirmed in the impugned order on this count is not sustainable and is set aside.
Cargo handling services - HELD THAT:- It is observed that the demand of service tax has been confirmed by the ld. adjudicating authority on the amounts received by the appellant as 'reimbursable expenses' during the course of provision of CHA services. It is found that the such expenses received by the appellant are related to AD Code Registration charges, Custom Clearance charges, Port charges, EDI Registration charges, AWB fee etc. which were nothing but 'reimbursement' of actual expenses and hence they cannot form part of consideration for levy of service tax - reliance placed on the decision of CESTAT New Delhi in the case of Commissioner of Service Tax, New Delhi v. Karam Freight Movers [2017 (3) TMI 785 - CESTAT NEW DELHI] wherein it has been held that the amounts reimbursed on actual basis are not to be included for Service Tax purpose - the demand confirmed in the impugned order on account of cargo handling service is not sustainable and is set aside.
Difference on ocean freight collected and paid to shipping lines - HELD THAT:- There is no finding in the impugned order to substantiate this allegation. From the records submitted by the Appellant it is found that the amount involved in this regard are the profit earned by the Appellant from ocean freight. Further, it is observed that the issue of taxability of profit earned on ocean freight is no longer res integra as the same issue has already been decided by this Tribunal in the case of Tierra Logistics Pvt. Ltd. [2023 (9) TMI 1141 - CESTAT KOLKATA] - thus, the demand confirmed in the impugned order on this count is not sustainable and the same is set aside.
GTA services - Transportation charges as recipient of services - HELD THAT:- The invoice has been raised on the Appellant for transportation of the goods and it has been categorically mentioned in the said invoice that the Service Tax is to be paid by the Party. Accordingly, in respect of this invoice, the liability of payment of Service Tax on the freight amount of Rs.4,20,000/- is on the Appellant. Therefore, the Appellant is liable to pay Service Tax on this invoice on the freight amount of Rs.4,20,000/- under the category of GTA Service, along with interest.
GTA services - HELD THAT:- The services provided by the various local truck owners are not related to goods transportation service as there was no ‘consignment note’ issued by such persons to the Appellant. The goods were moved on the ‘consignment note’ issued by the Appellant to their customers and on the value of which the customers of the Appellant were liable to pay service tax as recipients of service. Thus, in this regard, it is held that the Appellant is not liable to pay service tax under the category of GTA service - demand set aside.
Appeal disposed off.
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2024 (8) TMI 1103
Extended period of limitation - levy of service tax - GTA services.
Time Limitation - appellants submits that the issue has arisen on the basis of 26AS statement of the appellants supplied by the Income Tax Department and therefore, extended period cannot be invoked - HELD THAT:- It is found that Revenue has issued the Show Cause Notice on the strength of the data supplied by the Income Tax Department; Revenue claims that they have given three opportunities to the appellants by way of letters/ mails/ summonses and as the appellant did not supply data, they have taken recourse to best judgment method. The appellants claim that the summonses/ letters sent by the Department were not received by the appellant as the same were sent to their old address - The Department with all the might at their disposal could have verified the address of the appellants and the records thereof. Learned Authorized Representative submits that a huge demand of Rs.3.5 crore cannot be assessed or finalized on the basis of sample invoices - the demand is huge, the Department should have undertaken appropriate investigation into the matter.
The Show Cause Notice does not bring about any positive act on the part of the appellants with intent to evade payment of duty so as to allege suppression, mis-declaration etc. in order to invoke extended period - Tribunal has been consistently holding that extended period cannot be invoked when the case is made on the basis of 26AS statement, more so, when no ingredients for invocation of extended period are present in the case. Therefore, we are of the considered opinion that no case has been made for invocation of extended period.
In the instant case, the appellant is a GTA service provider wherein the service recipient is liable to pay service tax on Reverse Charge Mechanism. The Department failed to adduce any evidence to the effect that the appellants have rendered taxable service to the category of persons who do not fall under the category liable to pay service tax on RCM basis and this appropriate tax requires to be paid by the appellants themselves. In the absence of the same, the benefit of doubt has to be given to the appellants. It is not proper on the part of the Department to make allegations and show the failure on the part of the appellants to provide records as evidence. It is for the Department who are alleging to adduce evidence.
The extended period cannot be invoked and thus, the appeal succeeds on limitation - appeal is allowed on limitation.
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2024 (8) TMI 1102
Levy of service tax - transportation of goods through pipeline/conduit service - works contract service - period from 01.04.2013 to 31.03.2014.
Advance Received against Transmission Charges from Tea Estate and other consumers - HELD THAT:- The same issue has already been settled by this Tribunal in the appellant’s own case Final Order Nos. 76345-76346 of 2024 dated 25.06.2024 [2024 (8) TMI 396 - CESTAT KOLKATA] where it was held that 'Any interest therefore earned thereon shall not be includible in the gross taxable value for purpose of assessment. The department has woefully failed to establish any nexus with the security deposit to the discharge of the taxable service per se nor has it been borne out of record that such deposit in any way influences the value of the service rendered. It thus cannot form part of the taxable service and demand on this account for the aforesaid amount of Rs.40,77,945/- is required to be set aside.' - thus, the demand of service tax confirmed in the impugned order, on this count is not sustainable.
Amount against cost of Gas Meter and installation charges - HELD THAT:- The amount is collected as 'security deposit' in terms of Section 14 of the PNGRB Act, 2006. Further, this amount is refundable at the time of surrender of the connection. Hence, no taxable service is rendered and the amount is not liable to Service Tax - the demand of service tax confirmed in the impugned order, on this count is not sustainable.
Reconnection charges collected against re-installation - HELD THAT:- Regarding the demand of Rs.1,483/- on the reconnection charges against re-installation, it is observed that the appellant has not contested this demand. Further, in the appellant’s own case, this Tribunal vide Final Order [2024 (8) TMI 396 - CESTAT KOLKATA] has held that the appellant is liable to pay Service Tax on re-connection charges - the appellant is liable to pay service tax along with interest on the reconnection charges received by them. However, there is no suppression of fact with intention to evade the payment of tax exist in this case and hence, no penalty is imposed on this demand.
Penalties - HELD THAT:- All the penalties imposed on the appellant are set aside.
Appeal disposed off.
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2024 (8) TMI 1101
Classification of services - construction of roads services or construction of complex services - works contract services - best judgment assessment resorted to under section 72 of the Finance Act - appellant had already paid service tax, as applicable, even before the SCN was issued - applicability of section 73 (3) of the Finance Act.
The submission is that the appellant was told by some consultant that it need not pay service tax and therefore based on that advice it had not obtained service tax registration and had not paid service tax.
HELD THAT:- It is found that the intent can only be infered from the facts of the case. In this case, the violation of the Act or Rules is evident and it also evident that as a result the appellant had not paid service tax which it had to pay. The plea that it’s consultant had advised it not to pay service tax and, therefore, it had no intent to evade cannot be accepted. If this is accepted as a ground, anybody rendering taxable services and not paying tax can simply take the plea that some consultant had advised him not to pay service tax and not take registration and service tax - in the provisions related to invoking extended period of limitation under section 73 and imposition of penalty under section 78 are identical to the provisions of section 73 (4) - there are no reason to take a different view in this regard to the extended period of limitation or imposition of penalty under section 78.
The rest of the demand of service tax is upheld. The amounts already paid by the appellant as service tax need to be appropriated against the remaining part of the demand.
Interest will be payable as appropriate and any amounts of interest already paid shall be adjusted towards it. Penalty imposed under section 78 of the Finance Act needs to be recomputed accordingly.
Appeal allowed in part.
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2024 (8) TMI 1100
Jurisdiction to issue SCN - authority issuing show cause notice is different from adjudicating authority - Denial of CENVAT Credit.
Jurisdiction to issue SCN - appellant has alleged that show cause notice was issued by Assistant Commissioner, Circle-Jaipur B, CGST Audit Commissionerate, Jaipur and thus, its adjudication by Deputy Commissioner, CGST, Division-G, Jaipur, i.e. adjudicating authority, is without jurisdiction - HELD THAT:- The allegation challenging the jurisdiction is not sustainable. The adjudication authority despite being different from one which issued the said show cause notice is held to have the competent jurisdiction.
CENVAT Credit - duty paying documents - HELD THAT:- An invoice issued by the service provider is sufficient to prove the admissibility of Cenvat credit of input services. Further, reference is also made to Rule 4A of the Service Tax Rules, which provides that any person who provides taxable service, on completion of the said service, shall issue an invoice or bill not later than thirty days from the date of completion of such taxable service or receipt of payment, whichever is earlier.
In the present case, apparently the invoices were issued in the name of other plants of the appellant instead of being in favour of appellant. But it is also an admitted fact that the invoices were found accounted in the books of appellant, NEI Jaipur. Revenue has produced no evidence to prove that the units whose name were mentioned on the invoices had accounted those invoices in their books of accounts. Revenue has also failed to produce any evidence to prove that the input services were received by other units of NEI that the Jaipur unit. The burden was of the Revenue/department.
The deficiency noticed in the invoices is held to not be enough to deny the benefit of Cenvat credit in view of the proviso to Rule 9(2) of the Credit Rules. The invoices on record have all such details as mentioned above. Inasmuch as in the present case, the invoices with incorrect address issued by the input service providers contain all the requisite particulars as required under the proviso to Rule 9(2), therefore, Cenvat credit cannot be denied to the appellant. In fact, Rule 9(2) nowhere requires mentioning the address of service recipient. The proviso to Rule 9(2) of Credit Rules kicks in only when the conditions under Rule 4A of Service Tax Rules, 1944 read with Rule 9 of the Credit Rules, are not fulfilled entirely. Thus, denial of credit is not sustainable.
Appellant has also placed on record the CA certificate issued by Ashok Kanodia & Co., wherein it is certified that the Cenvat credit of Rs.12.62,017 was only availed by the appellant and not by any other unit of NEI. It is already held above that it is an admissible evidence. As a settled law, credit is a indefeasible and vested right, once there is no dispute on its entitlement.
The impugned order is set aside - appeal allowed.
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2024 (8) TMI 1099
Recovery of dues - Validity of certain read entries/charge over the properties of petitioner no. 1 on account of dues recoverable from the erstwhile Management of the 1st petitioner-Company under the Himachal Pradesh Value Added Tax Act, 2005 (HP Vat Act), the Central Sales Tax Act, 1956 (CST Act) and Himachal Pradesh Goods and Services Tax Act, 2017 (HPGST Act).
Petitioners contend that after approval of acquisition plan, it became binding on all including respondents and any act contrary to the approved plan would be illegal, particularly, when none of the respondents had challenged the acquisition plan which had also been approved by the NCLT.
HELD THAT:- It is clear that the 1st petitioner-Company, who was unable to pay its dues to Financial Creditors, was made subject to a Corporate Insolvency Resolution Process by one of its Creditors , i.e., the State Bank of India under Section 7 of the IBC and it was admitted on 05.04.2018 vide Annexure P-1.
As per sub-Section (4) of Section 14 of the Code, the said order of moratorium would have effect from the date of such order till the completion of the Corporate Insolvency Resolution Process - Since the provisions of the said Code had overriding effect on all laws in view of Section 238 of the Code, it was not permissible for the respondents to create a charge on the property of the petitioner-Company during the currency of the moratorium vide Annexure P-4 dt. 07.01.2020 in violation of the provisions of the IBC. Therefore, ex facie, the said order Annexure P-4 is void in law.
When the IBC permits Sale of Assets of a Company in Liquidation as a going concern under Regulation 32 (e) & 32A of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulation, 2016, and in such an e-auction conducted by the Liquidator, the current management made a plan for acquisition vide Annexure P-5A for Rs.49.95 crore and the same was approved by the NCLT on 11.05.2022 vide Annexure P-6 and Sale Certificate was also issued vide Annexure P-7 on 31.05.2022, all the claims of the respondents stood extinguished - the legislative intent was to extinguish all debts owed to the Central Government or any State Government or any Local Authority including the Tax Authorities, when once an approval was granted to Resolution Plan by the NCLT.
As per the amended Section 31 of the Code, the said principle of taking over Corporate Debtor under a Resolution Plan, will also apply to taking over by way of acquisition plan. This is referred to as the “Clean Slate” principle of IBC - The plea of the respondents that the tax dues claimed by them will have priority as a “Crown Debt”, therefore, cannot be accepted, and their action in continuing the said red entry/charge on account of dues recoverable from erstwhile management of the 1st petitioner-Company under the H.P. Vat Act, 2005, HPGST Act, 2017 and the CST Act, 1956, would be clearly illegal & arbitrary.
A Writ of Mandamus is issued directing the 4th respondent to remove its charge/red entries/claim for the tax dues of the erstwhile management of the 1st petitioner-Company on the properties of the said petitioner forthwith, from the revenue record - Petition allowed.
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2024 (8) TMI 1098
Revision u/s 263 - as per CIT despite having information regarding accommodation entries no additions were made by the AO - HELD THAT:- We have noted that the assessee provided detailed explanations and evidence to show that the transactions in question were conducted by M/s. Dee Are Products, a proprietorship firm of Divyaraj Madanlal Gupta and not by the assessee. Relevant documents, including ledger accounts, bank statements, and tax returns of M/s.Dee Are Products, were submitted to both the AO and the Ld.PCIT.
PCIT, relying primarily on information available on the INSIGHT portal, concluded that there was ample evidence of transactions between the assessee and Sanjay Govindram Agrawal for accommodation entries, thus exercising jurisdiction under Section 263 - mere information on the Insight Portal cannot be considered as evidence based on which the Ld.PCIT assumed his jurisdiction especially when the assessee has explained that the transactions are not pertaining to the assessee company but pertains to another person.
We note that the Ld.PCIT did not raise any query as to what enquiries were made by the Assessing Officer before proceeding to pass the assessment order in question. The opinion of the Ld.PCIT that the Assessing Officer had not made proper enquiries or verifications should be based on his objective satisfaction and not a subjective satisfaction from the assessment order.
The reopening in this case was held on the basis of information received from Insight Portal, whereby, the AO asked the assessee to furnish the necessary details from time to time which were duly furnished by the assessee and after considering the same the Assessing Officer passed the assessment order. However, a perusal of the revision order passed by the Ld.PCIT shows that the Ld.PCIT has not pointed out any error or discrepancy in the explanations and details furnished by the assessee and without examining such evidence and without counter questioning the assessee on the relevant points and even without considering the submission of the assessee furnished in reply to the show-cause notice, the Ld.PCIT, in our view, was not justified in setting aside the order, simply stating that in his view more enquiries were needed to be carried out by the AO.
The conditions necessary for invoking Section 263 of the Act, i.e., the order being erroneous and prejudicial to the interest of the revenue, are not satisfied in this case - Assessee appeal allowed.
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2024 (8) TMI 1097
Penalty u/s 271D - property sold in cash - assessee pleaded that the cash was received from the purchaser on the day of registration and before the Jt. Sub Registrar only, due to pressing medical need of his mother and since the amendment has come into force only a month earlier, he was not properly advised as to the bar of receiving cash under the amendment act - HELD THAT:- Admittedly the sale took place on 3/7/2015 whereas the amendment in question has come into force w.e.f. 1/6/2015. Assessee suffered loss in this transaction and such a position is not disputed by the Department. In the circumstances, the assessee not receiving proper advice as to the non-desirability of receiving the sale consideration in cash and his explanation cannot be brushed aside.
The meaning of the “specified sum” has also been dealt with by a Co-ordinate Bench of the Tribunal in the case of ITO vs. Shri. R. Dhinagharan (HUF) [2024 (1) TMI 61 - ITAT CHENNAI], wherein the ITAT took the view that the ‘ sum specified’ as per Explanation to Section 269SS only applicable for advance receivable, namely, ‘as advance or otherwise’ means advance can be in any manner, and therefore, this provision will not apply to the transaction that happens when the final payment at the time of registration of sale deed and payment takes place before sub-registrar for registration of property.
In the present case before us, it is an admitted fact that the assessee received the amount of cash of Rs.9,38,000/- not as advance, but as the final payment in front of the Sub-Registrar at the time of registration for sale of property.
Thus, we hold that there is no violation of provisions of section 269SS of the Act in the present case in the given facts and circumstances and hence, penalty under section 271D of the Act is not leviable. Hence, we allow the grounds raised by the assessee.
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2024 (8) TMI 1096
Challenge to order passed by the Ministry of Labour, Government of India by which the appropriate Government has refused to make reference for settlement of dispute arose between the parties - HELD THAT:- Several grounds were raised by the petitioner including non-compliance of the provisions contained under Section 25G of the Act of 1947, while terminating the services of the petitioner. Reply to the aforesaid application was submitted by the respondents and an objection was taken therein that the petitioner had hardly worked for only 85 days with the respondents, hence, under these circumstances, none of the provisions of the Act of 1947 were attracted and no dispute arose between the parties, which was required to be adjudicated by the Labour Court by making a reference.
Considering the application filed by the petitioner and reply submitted by the respondents, the competent authority refused to make reference only on a technical count that the petitioner has worked for 85 days only and he could not substantiate his claim for further employment with any documentary evidence.
Whether under these circumstances, the order passed by the authority dated 05.07.2010 is legally sustainable in the eye of law or not? - HELD THAT:- In the case of Telco Convoy Drivers Mazdoor Sangh and another vs. State of Bihar and Others [1989 (4) TMI 342 - SUPREME COURT], the Hon’ble Apex Court had held that though while considering the question of making reference under section 10(1) of the Act of 1947, the Government is entitled to form an opinion as to whether an industrial dispute “exists or is apprehended”, but it is not entitled to adjudicate the dispute itself on its merits. While exercising power under Section 10(1) of the Act of 1947, the function of the appropriate Government is an administrative function and not a judicial or quasi judicial function. It, therefore, cannot delve into the merits of the dispute and take upon itself the determination of the lis.
The impugned order dated 05.07.2010 stands quashed and set aside. The matter is remitted to the appropriate Government for making reference of the dispute - Petition disposed off.
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2024 (8) TMI 1095
Seeking grant of regular bail - wrongful Input Tax Credit (ITC) - fictitious invoices shown to be issued by nonexistent/ suspicious firms - HELD THAT:- The provisions of Section 132 of HGST Act, which are pari materia with Section 132 of CGST Act are relevant for the purpose. As per Section 132 (1)(b) and (c), whoever issues an invoice or bill without supply of goods or service or both in violation of provisions of this Act, leading to wrongful availment or utilization of Input Tax Credit or refund of tax or avails Input Tax Credit using such invoice or bill ‘commits’ the offence under this Section and is liable for punishment with imprisonment for a term which may extent to 05 years and with fine in cases where the amount of tax evaded or the amount of Input Tax Credit wrongly availed or utilized or the amount of refund wrongly taken exceeds Rs. 500 Lakhs.
In M/S. JAYACHANDRAN ALLOYS (P) LTD. VERSUS THE SUPERINTENDENT OF GST AND CENTRAL EXCISE, THE DEPUTY COMMISSIONER OF GST AND CENTRAL EXCISE HEAD QUARTERS PREVENTIVE UNIT, THE ADDITIONAL COMMISSIONER OF GST AND CENTRAL EXCISE, THE COMMISSIONER OF GST AND CENTRAL EXCISE [2019 (5) TMI 895 - MADRAS HIGH COURT], the allegation of the revenue was that the petitioner-company had contravened the provisions of Section 16(2) of the CGST Act and availed excess ITC insofar as there had been no movement of goods as against the supplier and the petitioner and the transactions were bogus and fictitious, created only on paper solely to avail ITC.
Show cause notice issued under Section 74(1) of the HGST Act/CGST Act upon him is yet to be adjudicated upon and the exact liability of the petitioner/his firm is yet to be fixed. The sentence to be awarded in this case is directly linked with the quantum of evasion of tax and the prosecution of the petitioner is also linked with determination of evasion of tax because if there is no evasion of tax, there can be no criminal liability. The determination of tax liability is subject to the challenge before tribunals and courts and does not fall within the realm of criminal courts.
The determination of tax liability is subject to the challenge before tribunals and courts and does not fall within the realm of criminal courts. Further in view of the fact that one M/s Tata Steels Ltd. has also been issued notice under Section 74(1) of the HGST Act/CGST Act jointly with the petitioner on the allegations of being major recipient of the ITC and its liability is also to be adjudicated upon, which obviously may reduce the liability to be imposed upon the petitioner, coupled with the fact that maximum period of punishment to be awarded under Section 132 of the HGST Act is 05 years.
The petitioner is directed to be released on regular bail, subject to his executing personal bonds with two solvent sureties each in the sum of Rs. 50 Lakhs to the satisfaction of the trial Court and further subject to the condition that he will surrender his passport before the trial Court and shall not leave the country during trial without prior permission of the Court.
The present petition is allowed.
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2024 (8) TMI 1094
Challenge to adjudication order passed u/s 73(9) of the CGST/WBGST Act, 2017 - no opportunity of hearing was either afforded or granted to the petitioners - violation of circular no. CBIC 183/15/2022 GST dated 27th December, 2022 - violation of principles of natural justice - HELD THAT:- The petitioners in this case complain that their response to the show cause was not considered. It is noticed in the order passed u/s 73 of the said Act, the proper officer had categorically noted that the response filed by the petitioners along with the documents has been taken into consideration. In view thereof, it cannot be said that the petitioners response was not considered or the proper officer had glossed over the same while passing the order impugned. The sufficiency or otherwise of the response, and the appreciation thereof by the proper officer, cannot form the subject matter of consideration in a writ petition under Article 226 of the Constitution of India.
Although, the petitioners complain of violation of statutory provisions of not being afforded with an opportunity of hearing, it is found that such issue has been raised as and by way of an afterthought. The order impugned had been passed on 31st October, 2023. The petitioners chose not to file an appeal within the prescribed period of limitation - since, the petitioners have not taken steps to challenge the same with the time prescribed and also having not approached this Court expeditiously, this Court ought not to extend any relief in favour of the petitioners especially when the petitioners have an alternative remedy in the form of an appeal although, the time to prefer an appeal has long expired.
Subject to payment of costs of Rs.10,000/- to be paid by the petitioners to the respondents, leave is granted to the petitioner no.1 to prefer an appeal from the order dated 31st October, 2023, before the appellate authority provided such appeal is filed within two weeks from date - Petition disposed off.
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2024 (8) TMI 1093
Seeking grant of regular bail - applicant had shown fictitious transactions with 69 firms - wrongful benefits of input tax credit - Section 439 of the Criminal Procedure Code, 1973 - HELD THAT:- From the record it appears that the present applicant is alleged to have availed input tax credit worth Rs.15.58 Crores on the basis of fictitious transactions which had been shown by the present applicant to have been entered by him with 38 fictitious firms. The record also indicated that the assets of the firms of the present applicant have already been attached and having regard to the same and so also the fact that the punishment of the present offence is five years and the present applicant has been arrested in connection of the present offence in the month of June, 2024, the present application deserves to be allowed.
In the facts and circumstances of the case and considering the nature of allegations made in the FIR and without discussing the evidence in details as well as without going into details, prima-facie, this Court is of the opinion that this is a fit case to exercise the discretion to enlarge the applicant on bail.
Hence, the application is allowed and the applicant is ordered to be released on bail in connection with the aforesaid FIR, on executing a bond of Rs. 10,000/- with one surety of the like amount to the satisfaction of the trial Court and subject to the fulfilment of conditions imposed.
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2024 (8) TMI 1092
Cancellation of firm’s GST registration - Seeking copies of the returns and documents which are available with the GST authorities in order to enable the petitioner to pursue its appellate remedy - HELD THAT:- The respondent is directed to supply physical /soft copy of the documents as sought by the petitioner and as set out in the alternate prayer, if the same are available with the respondent. These documents shall be provided to the petitioner within one week from date.
Petition disposed off.
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2024 (8) TMI 1091
Maintainability of petition - availability of alternative remedy - Violation of principles of natural justice - Exemption from IGST in view of Sr.No.144 of N/N. 2/2017 Integrated Tax (Rate) dated 28.06.2017 - seeking declaration that the Brooms sticks imported by the petitioner which are made out of Cocos Nucifera and Nypha Fruitcane - HELD THAT:- The fact remains that the impugned order-in-original is passed in the fragrant breach of principles of natural justice by not granting any opportunity of hearing to the petitioner and even the reply submitted by the petitioner is not considered and it is stated that no reply is filed, though the petitioner has tendered the reply in response to the show-cause notice on 11.06.2020.
Without entering into the merits of the matter, the impugned Order-In-Original dated 31.12.2020 is hereby quashed and set aside and the matter is remanded back to the adjudicating authority who shall pass a fresh de novo order after giving an opportunity of hearing to the petitioner and the petitioner shall be at liberty to raise all the contentions which are raised in this petition - Petition disposed off by way of remand.
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2024 (8) TMI 1090
Cancellation of registration of petitioner - failure to file an appeal within the stipulated time - contention of the petitioner is that the SCN for cancellation of registration dated 06.01.2021 directed appearance on 04.01.2021 and the order of cancellation of registration was passed on 20.01.2021 - HELD THAT:- True, there is an illegality in so far as the notice issued having shown a date prior to the date of the notice for hearing. However, the reply was directed to be submitted within seven days. The petitioner could have responded to the notice and asked for a further date which was not done by the petitioner. The petitioner does not have any case that the show-cause notice was not received by him. Further, it is also pertinent that the reason stated in the show-cause notice for cancellation of registration is that the petitioner has not filed returns for a continuous period of six months. The petitioner does not have a case that he had in fact filed a return in the continuous period of six months. The petitioner also did not file a reply to the show-cause notice.
Petition dismissed.
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2024 (8) TMI 1089
Maintainability of petition - availability of statutory remedy of appeal against the impugned order before the Appellate Tribunal u/s 112 of the Bihar Goods and Services Tax Act - HELD THAT:- Due to non-constitution of the Tribunal, the petitioner is deprived of his statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act.
Under the circumstances, the petitioner is also prevented from availing the benefit of stay of recovery of balance amount of tax in terms of Section 112 (8) and (9) of the B.G.S.T Act upon deposit of the amounts as contemplated under Sub-section (8) of Section 112.
The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act, which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the B.G.S.T Act, enters office.
Petition disposed off subject to fulfilment of conditions imposed.
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2024 (8) TMI 1088
Profiteering - Respondent had not passed on the benefit of reduction in rate of tax or input tax credit (ITC) to him by way of commensurate reduction in the price - contravention of provisions in Section 171 (1) of the CGST Act 2017 - whether there was any reduction in the GST rate or the benefit of ITC and whether the benefit of rate reduction or ITC was passed on or not to the recipients as provided under Section 171 of the CGST Act, 2017? - HELD THAT:- It is clear from the DGAP's Report that the Respondent had started the above project in the post-GST regime as the commencement certificate was issued to him on 08.03.2018 by the Ahmedabad Urban Development Authority and the Respondent was registered under GST w.e.f.27.02.2018. As per the ITC register submitted by the Respondent, the first purchase invoice was issued on 27.02.2018. On perusal of the copies of sale agreements of all the customers submitted by the Respondent, it was found that there was no sale or even booking of the units in the above project during pre-GST regime.
As far as rate reduction benefit is concerned, the Commission finds that after the implementation of the GST w.e.f. 01.07.2017, the Respondent was charging GST @ 8% with ITC. W.e.f. 01.04.2019, the Respondent was given the option either to charge GST @ 8% with ITC or 1% without ITC from the flat buyers vide Notification No. 03/2019-Central Tax (Rate) dated 29.03.2019. The Respondent continued to charge GST @ 8% with ITC instead of 1%without ITC from the flat buyers. Therefore, as the Respondent had continued to opt for an effective GST rate of 8% along with ITC, there was no benefit of reduced rate to be passed on to the flat buyers.
The Commission observes that no benefit of reduction of rate or additional ITC during the GST period as compared to the pre-GST period has accrued in the case of this Project to the Respondent, which he is obliged to pass on to his buyers. Hence, the allegations made by the Applicant No. 1 are not tenable.
The Commission finds that the provisions of Section 171 (1) of the CGST Act,2017 are not attracted in the Respondent's project “Swastik Heights”. Therefore, the proceedings in the present case are hereby dropped.
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2024 (8) TMI 1087
Delay in filling SLP - Deduction u/s 80-IB(10) and Disallowance u/s 40(a)(ia) - non- deduction of TDS on provision for expenses - HC [2022 (11) TMI 1507 - KARNATAKA HIGH COURT] decided issue in favour of assessee - HELD THAT:- We see no reason to condone the inordinate delay of 523 days in filing the Special Leave Petition as the explanation sought to be provided, does not constitute sufficient cause.
Hence, petition(s) stands dismissed on the ground of delay.
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2024 (8) TMI 1086
Validity of proceedings u/s 153C - whether the assessee should be treated as a “Searched Person” or “Other Person”? - Whether ‘Loose Sheets’ and ‘Diary’ have any evidentiary value? - HELD THAT:- We are not inclined to interfere with the impugned judgment and order passed by the High Court of Karnataka at Bengaluru in Writ Appeal [2024 (2) TMI 116 - KARNATAKA HIGH COURT] held notices issued u/s 153C of the Act, based on the loose sheets/diaries are contrary to law, which require to be set aside in these writ appeals, as the same are void and illegal.
As satisfaction note is required to be recorded u/s 153C for each Assessment Year and in the impugned proceedings, a consolidated satisfaction note has been recorded for different Assessment Years, which also vitiates the entire assessment proceedings. In view of all these findings, it is said that the appeals do not have any substance for seeking intervention as sought for by the appellant / Revenue. As per the Panchanama provided herein, it is deemed appropriate to conclude that the notice provided u/s 153C is bad in law.
Special Leave Petition is dismissed.
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2024 (8) TMI 1085
Validity of Faceless assessment of income escaping assessment - Challenge to notice u/s 148 as non-compliance with Section 151A of the Act - notices issued by JAO instead of FAO - HELD THAT:- JAO would not have jurisdiction to issue the impugned notices more particularly in view of the clear provisions of Section 151A read with notification dated 29 March, 2022 issued by the Central Government.
As fairly conceded on behalf of the revenue, the challenge in the proceedings would stand covered by the decision of this Court in Hexaware Technologies Ltd. (2024 (5) TMI 302 - BOMBAY HIGH COURT]. The impugned notices would be required to be held to be illegal and invalid as and there is no dispute that the JAO had no jurisdiction to issue the impugned notice. We, accordingly, allow this petition in favour of assessee.
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