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Showing 481 to 500 of 1642 Records
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2024 (7) TMI 1162
Challenge to assessment order - part -B of the e- way bill was not duly filled - respondent did not submit any reply to the SCN - HELD THAT:- It is not in dispute that the goods in question was intercepted and same was detained on the ground that the e-way bill was not duly filled as required under the Act and after giving due notice to the respondent, the order was passed specifically mentioning therein that there was an intent to avoid the payment of tax.
Once the authorities have recorded a finding of fact that there was an intent to avoid the payment of tax, the appellate authority was duty bound to reverse the said finding of fact but only a reference of the judgment passed by this Court in the case of M/S RAJ IRON & BUILDING MATERIALS VERSUS UNION OF INDIA THRU' ITS SECY. & 3 OTHERS [2018 (1) TMI 949 - ALLAHABAD HIGH COURT] has been given while allowing the appeal, thus, the appellate authority had failed to record any cogent reason as to how the said judgement was applicable in the facts of the present case.
The appellate authority has neither recorded any specific finding of fact in order to reverse the finding that there was no intent to avoid the payment of tax, nor recorded any reason that the said case law relied upon was applicable in the facts of the present case. In such circumstance, the impugned order cannot be sustained in the eyes of law.
Petition allowed.
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2024 (7) TMI 1161
Challenge to order passed under Section 74 (9) of the West Bengal GST/CGST Act, 2017 - order by Proper Officer, passed subsequent to the demise of the registered taxpayer - HELD THAT:- Admittedly, in this case it would transpire that a show cause notice had been issued on the registered taxpayer. The registered taxpayer had also duly responded to the said show cause notice. Records would also reveal that from the order passed under Section 74 (9) of the said Act, it would transpire that an opportunity of hearing was also afforded to the registered taxpayer on 7th February, 2024.
The order passed by the Proper Officer under Section 74 (9) of the said Act dated 13th March, 2024, which had been passed subsequent to the demise of the registered taxpayer, is unenforceable and has to be declared as such.
The order passed by the Proper Officer on 13th March, 2024 stands set aside - petition disposed off.
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2024 (7) TMI 1160
Refund of GST claim under Inverted Duty Structure - applicability of CBEC Circular No.135/05/2020-GST - HELD THAT:- The provisions of the GST enactments being applicable pan India, the Department cannot take a different stand and such stand would be contrary to the ratio of the Hon’ble Supreme Court in KUSUM INGOTS & ALLOYS LTD. VERSUS UNION OF INDIA [2004 (4) TMI 342 - SUPREME COURT]. Therefore, the impugned order denying the benefit of the refund on account of the Inverted Duty Structure to the petitioner is unsustainable.
The impugned order is set aside and the case is remitted back to the respondent to pass a fresh order in the light of the above mentioned orders sanctioning for the refund to the petitioner. This exercise shall be completed within a period of three months from the date of receipt of a copy of this order.
Petition allowed by way of remand.
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2024 (7) TMI 1159
Violation of principle's of natural justice - petitioner's contentions were not taken into account - mismatch between the petitioner's GSTR 3B returns and the auto populated GSTR 2A - HELD THAT:- The third respondent did not discuss the petitioner's explanation for classifying it as a farm tractor or record reasons for rejecting such explanation. As regards the ITC mismatch issue, in the petitioner's reply, the petitioner refers to the issuance of invoices after the end of the financial year. On this issue, the third respondent records that the petitioner had stated that ITC matching was not a mandatory requirement for the period July 2017 to March 2019. This was not the contention of the petitioner in the reply. Thus, on both these issues, the petitioner's contentions were not dealt with in the impugned order. For such reason, a remand is necessary.
The impugned order dated 24.04.2024 is partly set aside only insofar as the ITC mismatch issue and the rate of tax difference / classification issue are concerned. Consequently, the third respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within three months from the date of receipt of a copy of this order.
Petition disposed off.
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2024 (7) TMI 1158
Violation of principles of natural justice - SCN was not communicated through any other mode - petitioner was unaware of proceedings and could not participate in the same - adjudications are challenged primarily on the ground of non-issuance of notice in Form ASMT 10 - what is the consequence of non-compliance? - Does it vitiate the subsequent adjudication either under Sections 73 or 74? - HELD THAT:- he factual question as to whether the respective petitioner's returns were selected for scrutiny under Section 61 has limited significance. This contention was advanced on the basis that the subject description in the impugned order refers to scrutiny of returns and the discovery of discrepancies. On examining the preceding show cause notice, there is no reference to scrutiny under Section 61. Instead, data from the GSTR-01 and GSTR-3B returns are set out to indicate the mismatch.
From the material on record, it is not possible to record a definitive conclusion that the petitioner's returns were selected for scrutiny under Section 61. In any event, nothing turns on the answer because such scrutiny was not the foundation for adjudication under Section 73.
Both the show cause notice and the impugned order refer expressly to a scrutiny under Section 61 and to discrepancies being noticed. Thus, the two conditions necessary to trigger the obligation to issue the ASMT-10 notice were fulfilled in this case. As a consequence of not issuing the ASMT-10 notice, any conclusions drawn in course of scrutiny would stand vitiated and cannot be the basis for adjudication. In this case, the show cause notice specifies the outward supply value from the petitioner's GSTR-3B returns and the purchase value as reflected in the auto-populated GSTR-2A. Since the petitioner was provided an opportunity to show cause, it cannot be said that the adjudication was based only on the scrutiny under Section 61 or that the petitioner was prejudiced.
The tax proposal was confirmed because the tax payer failed to reply. Since the petitioner asserted that such failure to participate was on account of not being aware of proceedings, the interest of justice warrants that an opportunity be provided to the petitioner to contest the tax demand on merits by putting the petitioner on terms.
The impugned assessment order dated 11.04.2024 in W.P.No.13507 of 2024 is set aside on condition that the petitioner remits 10% of the disputed tax demand within fifteen days from the date of receipt of a copy of this order. Within the said period, the petitioner is permitted to submit a reply to the show cause notice - The impugned assessment order dated 23.12.2023 in W.P.No.15330 of 2024 is aside aside by remanding the matter for reconsideration - Petition disposed off.
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2024 (7) TMI 1157
Maintainability of appeal - time limitation - Cancellation of GST registration of petitioner - petitioner preferred an appeal against the impugned cancellation order before the Appellate Authority on 09.09.2022, however the same was not entertained as it was filed after the expiry of the stipulated period for filling such appeals - HELD THAT:- It is material to note that the GST registration of the petitioner was cancelled by the impugned cancellation order with retrospective effect, however, no adverse action to the said effect was proposed in the impugned SCN. The impugned cancellation order also does not set out any reason for cancelling the petitioner’s GST registration with retrospective effect.
It is relevant to note that the Supreme Court in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2022 (1) TMI 385 - SC ORDER] had condoned the delay in cases where the period of limitation expired prior to 28.02.2022.
It is considered apposite to set aside the impugned order and remand the matter to the Appellate Authority to decide the petitioner’s appeal afresh on merits, uninfluenced by the question of delay, after affording an opportunity of personal hearing to the petitioner - petition disposed off by way of remand.
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2024 (7) TMI 1156
Cancellation of registration of the petitioner - order passed without assigning any reasons - time limittaion - HELD THAT:- The Co-ordinate Bench of this Court in case of AGGARWAL DYEING AND PRINTING WORKS VERSUS STATE OF GUJARAT & 2 OTHER (S) [2022 (4) TMI 864 - GUJARAT HIGH COURT] has issued the guidelines to the respondent-authorities by holding that 'Our concern is that on account of procedural lapses, the High Court should not be flooded with writ applications. The procedural aspects should be looked into by the authority concerned very scrupulously and deligently. Why unnecessarily give any dealer a chance to make a complaint before this Court when it could have been easily avoided by the department.'
The impugned orders passed by the appellate authority as well as the Assessing Officer are hereby quashed and set aside and the matter is remanded back to the Assessing Officer to issue fresh show cause notice with particulars of reasons incorporated with details and thereafter to provide reasonable opportunity of hearing to the writ applicants, and to pass appropriate speaking orders on merits.
Petition disposed off.
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2024 (7) TMI 1155
Challenge to assessment order - impugned order records that the petitioner has neither replied to the show cause notice nor has appeared during personal hearings - violation of principles of natural justice - HELD THAT:- Considering the fact that the petitioner has opportunity to request the second respondent to exercise the discretion under Section 161 of the GST Act, 2017, the Court is of the view that the impugned order is unsustainable in the manner, in which, it has been passed.
Under these circumstances, the impugned order is quashed and the case is remitted back to the second respondent to pass fresh orders on merits and in accordance with law.
Petition disposed off by way of remand.
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2024 (7) TMI 1154
Maintainability of appeal - time limitation - pre-deposit - appeal rejected on the ground that they had been filed beyond time and also that the pre-deposit of 10% of the disputed tax, required to be paid under Section 107 of the Central Goods and Services Act, 2017, had not been paid - HELD THAT:- The Hon’ble Division Bench after noticing Rule 108 (1) of the AP GST Rules, 2017, stipulating the method of pre-deposit as well as the provisions of Section 107 (1) of the AP GST Act which requires pre-deposit to be made under GST APL-01 had directed the Appellate Authority to consider the question of whether there was a technical difficulty in making payment under APL-01 and to pass orders thereafter. This would mean that the Appellate Authority was required to ascertain whether there was a technical glitch which shut out the petitioners from making the necessary pre-deposits and to accept the payment made under DRC-03 as payment under APL-01. However, the Appellate Authority, without going into the question as to whether there was a technical glitch or not, had simply decided that, payment made under a wrong head is not sufficient compliance of the requirements of Rule 108 of the AP GST Rules r/w Section 107 of the AP GST Act.
The matters are remanded back to the 2nd respondent-Appellate Authority for fresh consideration - petition allowed by way of remand.
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2024 (7) TMI 1153
Levy of penalty - transportation of goods - violation of Rule 129 of the SGST Rules, 2017 - HELD THAT:- The power of detention as well as seizure can be exercised only when the goods were not accompanying with the genuine documents provided under the Act. The genuineness of the documents has not been disputed at any stage.
Observation/allegation has been made that at the time of interception / detention of the goods in question, the driver of the vehicle has only produced tax invoice and e-way bill dated 11.07.2023 and 13.07.2023, but none of the documents as prescribed under the Act has been referred or even brought on record before this Court in support of the said contention. Once the documents accompanying the goods were found to be genuine the goods ought not be have been seized.
The impugned order dated 06.03.2024 cannot be sustained in the eyes of law and is hereby quashed - petition allowed.
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2024 (7) TMI 1152
Input tax credit - Time limitation - period July 2017 to March 2019 - Section 6(2)(b) of the CGST Act and RGST Act 2017 - HELD THAT:- Taking into consideration the submissions of learned counsel for the petitioner that in respect of the same transaction, an ITC claim of the petitioner pertaining to the assessment period July 2017 to March 2019, based on similar set of transactions, already a notice under Section 73 of the CGST Act 2017 has been issued by Central Goods and Services Tax Authorities, subsequent notice by the State Authorities under RGST Act 2017 in respect of the same matter is barred under Section 6(2)(b) of the CGST Act and RGST Act 2017, respondent Nos.2,3 & 4 are restrained from proceedings further pursuant to impugned show cause notice dated 31.01.2024.
Issue notice to respondent Nos.2,3 & 4 on payment of PF and notice within one week, returnable within three weeks.
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2024 (7) TMI 1151
Irregular availment of ITC on inward supplies received from registered persons during the period 2018-19 and 2019-20 - whether the petitioner was required to pay late fee for delayed filing of annual returns? - HELD THAT:- Since the petitioner has already filed reply to the show cause notice, this Court would not like to entertain the present writ petition filed against the show cause notice. It is for the competent authority to decide the issue. Once the issue has been decided, the petitioner will have remedy as provided under the statute. The show cause notice issued is neither without jurisdiction nor against law.
This Court would not like to entertain the present writ petition, which is hereby dismissed.
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2024 (7) TMI 1150
Seeking direction upon the respondents authority concerned to bear the additional tax liability for execution of subsisting Government contracts either awarded in the pre-GST regime or in the post GST regime without updating the Schedule of Rates (SOR) incorporating the applicable GST while preparing Bill of Quantities (BOQ) for inviting the bids - HELD THAT:- This writ petition is disposed of by giving liberty to the petitioner to file appropriate representation, before the Additional Chief Secretary, Finance Department, Government of West Bengal within four weeks from date. On receipt of such representation the Additional Chief Secretary, Finance Department shall take a final decision within four months from the date of receipt of such representation after consulting with all other relevant departments concerned.
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2024 (7) TMI 1149
Levy of service tax on the amount of salaries and perquisites relating to expats under Manpower Recruitment or Supply Agency Service - HELD THAT:- Since the petitioners have already represented and have taken time as such before the Revenue on 20.11.2023 that they are in the process of collating the documents to prepare a comprehensive response, the necessary response be filed by 15.01.2024. The respondents shall then take a decision on the same. In case any adverse order is passed against the petitioners during the pendency of the writ petition, the respondents shall not take any coercive steps to recover the amount.
Adjourned to 13.02.2024.
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2024 (7) TMI 1148
Levy of GST or exempt from GST - amount paid to the Forest department as Abhivahan permission shulk - Scope of continuous supply of service u/s 2 (33) of the CGST Act 2017.
Whether the amount paid to the Forest Department as Abhivahan Permission Shulk is liable to be taxed under GST or exempt as per SI. No. 4 and 5 of the Notification No. 12/2017-Central Tax (Rate), dated 28.06.2017? - HELD THAT:- The Abhivahan Shulk as collected by the Chhattisgarh Forest Department from the appellant is in lieu of granting permission for movement of Forest produce viz. coal from the forest area of Chhattisgarh state. The permit charges collected by forest department is used by (he forest officials keep a watch on the mining activity and also to assess the quantity and type of mineral being quarried to carry out survey and also keep constant watch on the movement of the produce, and is not related to “Urban forestry, protection of the environment and promotion of the ecological aspect” or “Social forestry or farm forestry”. Therefore, Abhivahan Shulk has neither any connection with “Urban forestry, protection of the environment and promotion of the ecological aspect” [functions entrusted and as specified under SI. No. 8 to municipalities in the Eleventh Schedule read with Article 243W oi the Constitution of India] nor with “Social forestry and farm forestry” [functions entrusted and as specified under SI No 6 to Panchayats in the twelfth Schedule read with Article 243G of the Constitution of India] - the said “Abhivahan permission shulk” paid by the appellant is not eligible for NII. rate of GST, as provided under SI No. 4 & 5 of Notification No. 12/2017-Central Tax (Rate), dated 28.06.2017.
Whether each transaction of Abhivahan Shulk, being less than Rs. 5000/- per transaction, is exempt under SI. No. 9 of the Notification No. 12/2017-Central Tax (Rate), dated 28.06.2017, as it is not covered by the definition of continuous supply of service u/s 2 (33) of the CGST Act 2017? - HELD THAT:- The appellant is a power generating company. The main raw material for generation of power is coal. The coal mines are situated in a forest area, and the appellant is paying Transit Fees or Abhivahan Shulk throughout the year on recurring basis to the Forest Department for issuance of transit pass whenever the Coal is cleared from the forest area, This is not a single transaction rather it's a supply of the entire coal regularly to their power plants from the said coal block located in the forest and for which permission is granted by the Forest department. It is just for administrative convenience that vehicle wise Abhivahan Permission Shulk or Transit Fee is being paid by the applicant to the Forest Department Therefore, the said service squarely falls under the category of “supply of continuous service” as per Section 2 (33) of CGST Act. 2017.
The applicant is not eligible for exemption as provided under SI. No. 9 of Notification No. 12/2017-Central Tax (Rate), dated 28.06.2017, as the Abhivahan Permission Shulk paid to the forest department is more than five thousand rupees in a financial year.
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2024 (7) TMI 1147
Delay in filling SLP - TDS u/s 195 - scope of amendment of Finance Act, 2010 in section 9 - Liability to deduct tax on payments made on sub-contract work done - outsourcing a portion of on-site work to its subsidiary in China - default u/s 201(1) & 201(1A) - as decided by HC [2023 (6) TMI 773 - KARNATAKA HIGH COURT] “person” mentioned in section 195 of the Income Tax Act cannot be expected to do the impossible, namely, to apply the expanded definition of “royalty” inserted by explanation 4 to section 9(1)(vi) of the Income Tax Act, for the assessment years in question, at a time when such explanation was not actually and factually in the statute.
HELD THAT:- There is a gross delay of 296 days in filing this Special Leave Petition. Even otherwise, we do not find any merit in the matter.
Special Leave Petition is dismissed both on the ground of delay as well as on merits.
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2024 (7) TMI 1146
Reopening of assessment u/s 147 - Notice issued after the expiry of four years - gain on sale of land - treating the land in question as ‘stock in trade’ or ‘capital asset’ - As decided by HC 2023 (9) TMI 437 - BOMBAY HIGH COURT] there was no failure to disclose any material fact, on that ground alone the notice issued u/s 148 has to be quashed - HELD THAT:- Following the order dated [2023 (11) TMI 291 - SC ORDER] passed by this Court in SLP, this Special Leave Petition is also dismissed.
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2024 (7) TMI 1145
Validity of reassessment proceeding u/s 147/148 - difference between lack of jurisdiction and irregular exercise of power/jurisdiction by the AO -reassessment triggered when the CBI search was made at others premises, not the assessee and certain documents were found at the place of one J.K. Jain - whether the AO has passed the final order in reassessment on the dictates/directions of the superior authority? - ITAT in its judgment has arrived to the finding considering various material available on record that the AO has passed the order against the assessee on the dictates of his superiors.
HELD THAT:- It is quite pertinent to mention that how these proceedings against the assessee has been conducted the series of event started on 03.05.91 when the CBI has conducted the search in premises of J.K. Jain. After it the Income Tax Department in exercise of its power under Section 132A of the IT Act, called for these documents and material seized from the CBI. The assesee was asessesed at Bhilai, therefore, the said material was handed over to the AO sitting at Bhilai on 20.03.95.
AO issued notice to assesee for reopening. The return of income was filled by the assesee on 06.06.95 however, the AO did not do anything till 20.12.95. On 20.12.95 the AO went to Delhi on receipt of some message of the DDIT (Inv.), amazingly the purpose of visit was for discussion about the case.
The records of the proceedings clearly shows that the AO was taking instructions on each and every hearing and dictates was clearly given to him.
Letter dated 30.01.96 which was written to the Commissioner of Income Tax, Central Revenue Building, Napier Town Jabalpur clearly shows that even the questionnaire was prepared on instruction of his superiors and same was even sent to Delhi for confirmation this clearly shows how far the AO was taking directions from his superior and not acted independently.
In the said letter the AO has clearly written that though he has drafted the “skeleton of the order” but he want guidance of the “higher authorities so that legal infirmity in the assessment can be taken care of” these phrases speaks a dozen about how far the AO was conducting the proceedings independently and with open mind.
Tribunal has given the detail account of the series of event which has various instances how these proceedings were influenced by the superior authorities sitting at Delhi and Jabalpur.
The proceedings before the AO gets vitiated when he start discussing about the merits of the case or in which manner he should conduct the proceedings.
As decided in M/S GREENWORLD CORPORATION AND M/S THE GREEN WORLD CORPORATION VERSUS ITO, PARWANOO & ANR. [2009 (5) TMI 14 - SUPREME COURT] while making the orders of assessment the assessing officer shall be bound by the statutory circulars issued by CBDT but it is another thing to say that the assessing authority exercising quasi-judicial function keeping in view the scheme contained in the Act, would lose its independence to pass an independent order of assessment.
AO has duty to act judicially and independently and its judgment cannot be controlled by the superior authority - The officers sitting at Delhi and Jabalpur has even interfered in the order especially the guidance has been sought by the AO to deal with the grounds raised by the assessee.
Thus, the tribunal has rightly concluded that the AO has passed the order of reassessment on the dictates of the higher authorities sitting at Delhi and Jabalpur.
Once having held that the reassessment started at the dictation of the higher authorities and thereafter, during reassessment process too continuous instructions were imparted and even the AO obtained instructions, therefore, the end result would be same as the bias would exist. Decision of reassessment, reassessment thereafter is at the dictation of higher authorities then the order itself would be outcome of bias and authority having original jurisdiction would not be able to come to save them under the shell. The entirety of facts cannot be fragmented in peace meal and entire state of affairs are to be considered as a whole.
Even otherwise the court cannot condone the delay of the proceedings which is not before it as limitation for framing of reassessment order section 147/143 (3) which, in terms of section 153 of the Act (as then applicable) lapsed on 31.03.1997.
Decided in favour of assessee.
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2024 (7) TMI 1144
Reopening of assessment u/s 147 - mere change of opinion - differential amount i.e. difference between the amounts reflected in the balance-sheet and income offered in the profit and loss account has escaped assessment - HELD THAT:- It is apt to take note of the admitted fact that the case of the petitioner was selected for scrutiny and the then AO after having considered details furnished by the petitioner such as, export sale as well as benefit in the form of duty drawback, duty of customs or central excise repaid and repayable, cash assistance, vide order, framed the assessment under the provision of section 143 (3) meaning thereby, in our view, AO was in possession with all the relevant material including the profit and loss account as well as the balance-sheet at the time when the assessment order was framed u/s 143 (3) of the Act.
Therefore, Revenue was well within their possession of all the relevant materials and thereby it is difficult to hold that the petitioner has not fully and truly disclosed the material facts.
When the then AO has framed the assessment under the provisions of section 143 (3) of the Act, all the documents were furnished by the petitioner and therefore now in absence of any new and/or tangible material, keeping in mind the contents of the reasons recorded if notice u/s 148 is issued on the same material, in our considered opinion, the same is nothing but the mere change of opinion which is not permissible in eye of law.
In absence of failure on the part of the petitioner to disclose fully and truly all material facts, the notice u/s 148 is issued beyond the period of four years the same is not even otherwise permissible. Assessee appeal allowed.
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2024 (7) TMI 1143
Validity of Reopening of assessment - legality of notice u/s 148 and the order rejecting objections - Revenue has sought to reopen the assessment on the sole basis that the profit being the difference between purchase and sale of commodities over national multi commodities exchange, though derived but not reflected in the return of income - HELD THAT:- As per the undisputed fact that the petitioner has already submitted a contract note dated 01.10.2011 issued by Star Commodities with regard to the transaction in which it is alleged that the income has escaped assessment. Considering the ledger account of Star Commodities produced, the very income has already been reflected. Further, on perusal it has been found that the Bank Statement of the Union Bank of India for the period between 01.04.2011 to 31.03.2012 wherein the said amount has been reflected.
Keeping in mind the aforesaid material on record, in our considered opinion, the entire base of reopening that income escaped assessment is not correct. The reasons so recorded and the notice u/s 148 is nothing but a sheer non application of mind by the Revenue. Thus, we therefor hold that a notice u/s 148 of the Act cannot be said to be legal in the eye of law. Decided in favour of assessee.
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