HIGH COURT CASES
2020-TIOL-791-HC-KERALA-GST
GST Council Vs State Of Kerala
GST - Review petitions have been filed by Revenue aggrieved by the judgment of the Court wherein the Court had disposed of all the Writ Petitions (on a premise that the writ petitioners could not upload the details on account of technical snag) by permitting the petitioners to submit GST TRAN-1 Form claiming input tax as provided under Section 140 (3) of the Act.
Held: Review petitioners place reliance upon judgment in W.P.(C)No. 41337/2018 wherein the Court has left it to the decision of the Nodal Officer concerned to decide whether delay in uploading details was attributable to the writ petitioners or not - Since the writ petitioners have no objection in giving similar directions, review petitions are disposed of holding that the directions in the judgment in W.P.(C) No. 41337/2018 would govern the present matter as well: High Court [para 2]
- Petition disposed of: HIGH COURT KERALA
2020-TIOL-790-HC-KERALA-GST
Smeara Enterprises Vs State Tax Officer
GST - Petitioner defaulted in filing of returns from May 2018 onwards - grievance in the writ petition is against Ext.P1 series of orders of assessment passed by the 1st respondent under Section 62 of the GST Act, pursuant to a best judgment assessment - Case of the petitioner is that although there is a provision under the Act for an automatic setting aside of the best judgment assessment in circumstances where the registered dealer furnishes a valid return within 30 days of service of the assessment order, the petitioner sees this provision as futile in his case inasmuch as even if the petitioner were to file the returns within the extended time of 30 days from the date of receipt of the best judgment assessment orders, he would not be in a position to pay the admitted tax liability as reflected from the returns; that, therefore, the petitioner prays for quashing the assessment orders on the ground that it did not adhere to the yardstick indicated in s.62 for exercise of the power.
Held: Statutory prescription of 30 days from the date of receipt of the assessment order passed under sub section (1) of Section 62 has to be strictly construed against an assessee and in favour of the revenue since this is a provision in a taxing statute that enables an assessee to get an order passed against him on best judgment basis set aside - The provision must be interpreted in the same manner as an exemption provision in a taxing statute - Court may not be justified in granting an extension of the period contemplated under sub section (2) of Section 62, so as to enable the assessee to file a return beyond the said period for the purposes of getting the benefit of withdrawal of an assessment order passed on best judgment basis under Section 62(1) of the GST Act - Prayer sought for in the writ petition cannot be granted, therefore, writ petition is dismissed: High Court [para 7]
- Petition dismissed: KERALA HIGH COURT
2020-TIOL-789-HC-KERALA-GST
Mangomeadows Agricultural Pleasure Land Pvt Ltd Vs State Tax Officer
GST - Petitioner defaulted in filing of returns from April 2018 onwards - grievance in the writ petition is against Ext.P1 series of orders of assessment passed by the 1st respondent under Section 62 of the GST Act, pursuant to a best judgment assessment - Case of the petitioner is that although there is a provision under the Act for an automatic setting aside of the best judgment assessment in circumstances where the registered dealer furnishes a valid return within 30 days of service of the assessment order, the petitioner sees this provision as futile in his case inasmuch as even if the petitioner were to file the returns within the extended time of 30 days from the date of receipt of the best judgment assessment orders, he would not be in a position to pay the admitted tax liability as reflected from the returns; that, therefore, the petitioner prays for quashing the assessment orders on the ground that it did not adhere to the yardstick indicated in s.62 for exercise of the power.
Held: Statutory prescription of 30 days from the date of receipt of the assessment order passed under sub section (1) of Section 62 has to be strictly construed against an assessee and in favour of the revenue since this is a provision in a taxing statute that enables an assessee to get an order passed against him on best judgment basis set aside - The provision must be interpreted in the same manner as an exemption provision in a taxing statute - Court may not be justified in granting an extension of the period contemplated under sub section (2) of Section 62, so as to enable the assessee to file a return beyond the said period for the purposes of getting the benefit of withdrawal of an assessment order passed on best judgment basis under Section 62(1) of the GST Act - Prayer sought for in the writ petition cannot be granted, therefore, writ petition is dismissed: High Court [para 7]
- Petition dismissed: KERALA HIGH COURT
2020-TIOL-788-HC-KERALA-GST
JS Fusion Industries Pvt Ltd Vs State Tax Officer
GST - Petitioner defaulted in filing of returns from May 2018 onwards - grievance in the writ petition is against Ext.P1 series of orders of assessment passed by the 1st respondent under Section 62 of the GST Act, pursuant to a best judgment assessment - Case of the petitioner is that although there is a provision under the Act for an automatic setting aside of the best judgment assessment in circumstances where the registered dealer furnishes a valid return within 30 days of service of the assessment order, the petitioner sees this provision as futile in his case inasmuch as even if the petitioner were to file the returns within the extended time of 30 days from the date of receipt of the best judgment assessment orders, he would not be in a position to pay the admitted tax liability as reflected from the returns; that, therefore, the petitioner prays for quashing the assessment orders on the ground that it did not adhere to the yardstick indicated in s.62 for exercise of the power.
Held: Statutory prescription of 30 days from the date of receipt of the assessment order passed under sub section (1) of Section 62 has to be strictly construed against an assessee and in favour of the revenue since this is a provision in a taxing statute that enables an assessee to get an order passed against him on best judgment basis set aside - The provision must be interpreted in the same manner as an exemption provision in a taxing statute - Court may not be justified in granting an extension of the period contemplated under sub section (2) of Section 62, so as to enable the assessee to file a return beyond the said period for the purposes of getting the benefit of withdrawal of an assessment order passed on best judgment basis under Section 62(1) of the GST Act - Prayer sought for in the writ petition cannot be granted, therefore, writ petition is dismissed: High Court [para 7]
- Petition dismissed:KERALA HIGH COURT
2020-TIOL-775-HC-AHM-GST
Mahalaxmi Rexine And Metal Traders Vs STO
GST - Short point for consideration is whether the writ-applicant could be said to have been given a reasonable opportunity of hearing by the authority concerned before passing the final order of confiscation in Form MOV-11 - Attention of the Bench is drawn to the impugned notice more particularly, Page No.30 of the paper book and it is evident from the Paragraph No.7 therein that the writ-applicant was directed to appear before the authority concerned on 05.04.2019 at 11.00 a.m; that despite the same, the impugned order came to be passed on the very same day i.e. 05.04.2019 on which the writ-applicant was supposed to remain present for the purpose of hearing - On this short ground alone, Bench is inclined to quash the impugned order of confiscation passed by the authority concerned in Form GST-MOV-11 - order is, therefore, quashed and set aside - matter is remitted to the respondent no.1 for fresh adjudication - exercise to be completed within a period of four weeks - Application disposed of: High Court [para 7 to 10]
- Petition disposed of: GUJARAT HIGH COURT
2020-TIOL-770-HC-AHM-GST
Jainam Cables India Pvt Ltd Vs UoI
GST - Writ applicant availed the benefit of the interim-order passed by this Court and got the vehicle, along with the goods released on payment of the tax amount and the proceedings, as on date, are at the stage of show cause notice, u/s 129 of the CGST Act and which proceedings shall go ahead in accordance with law - It shall be open for the writ applicant to point out the pronouncement of this Court in the case of Synergy Fertichem Pvt. - 2019-TIOL-546-HC-AHM-GST and in particular rely on the observations made by this Court in paragraph Nos.99 to 104 of the said judgment - It is now for the applicant to make good his case that the show cause notice, issued in GSTMOV- 10, deserves to be discharged - Petition disposed of: High Court [para 5 to 7]
- Petition disposed of: GUJARAT HIGH COURT
2020-TIOL-769-HC-AHM-GST
Radhe Renewable Energy Development Pvt Ltd Vs State Of Gujarat
GST - Writ applicant availed the benefit of the interim-order passed by this Court and got the vehicle, along with the goods released on payment of the tax amount and the proceedings, as on date, are at the stage of show cause notice, u/s 129 of the CGST Act and which proceedings shall go ahead in accordance with law - It shall be open for the writ applicant to point out the pronouncement of this Court in the case of Synergy Fertichem Pvt. - 2019-TIOL-546-HC-AHM-GST and in particular rely on the observations made by this Court in paragraph Nos.99 to 104 of the said judgment - It is now for the applicant to make good his case that the show cause notice, issued in GSTMOV- 10, deserves to be discharged - Petition disposed of: High Court [para 5 to 7]
- Petition disposed of: GUJARAT HIGH COURT
2020-TIOL-768-HC-AHM-GST
S Narayan And Company Vs UoI
GST - Writ applicant availed the benefit of the interim-order passed by this Court and got the vehicle, along with the goods released on payment of the tax amount and the proceedings, as on date, are at the stage of show cause notice, u/s 129 of the CGST Act and which proceedings shall go ahead in accordance with law - It shall be open for the writ applicant to point out the pronouncement of this Court in the case of Synergy Fertichem Pvt. - 2019-TIOL-546-HC-AHM-GST and in particular rely on the observations made by this Court in paragraph Nos.99 to 104 of the said judgment - It is now for the applicant to make good his case that the show cause notice, issued in GSTMOV- 10, deserves to be discharged - Petition disposed of: High Court [para 5 to 7]
- Petition disposed of: GUJARAT HIGH COURT
2020-TIOL-767-HC-AHM-GST
Shivanshi Enterprise Vs UoI
GST - Writ-applicant preferred an online application for cancellation of the GST No.24APRPK1735Q2Z9 of the Proprietory concern - In fact, the writ-applicant wanted cancellation of the GST No.24BAXPK4271K1Z5 of "Shree Sai Water Purifiers" - The aforesaid mistake committed by the writ-applicant was brought to the notice of the respondent no.2 with a request to restore the original registration - The respondent no.2 passed an order dated 04th June, 2019 restoring the registration - The grievance of the writ-applicant is that although there is an order passed by the respondent no.2 restoring the registration, which was inadvertently cancelled, yet the same has not be given effect to by the GSTN.
Held: Writ-application is disposed of with a direction to the newly impleaded respondent no.4 i.e. the GSTN Council to immediately look into the matter, more particularly, the order passed by the respondent no.2 dated 04th June, 2019, Annexure-A and see to it that the order is given effect to - such exercise is be undertaken at the earliest and be completed within a period of four weeks: High Court [para 5, 6]
- Application disposed of: GUJARAT HIGH COURT
2020-TIOL-766-HC-KERALA-GST
Pact Machines Pvt Ltd Vs State Tax Officer
GST - Subsequent to the filing of this Writ Petition (Civil) on 27.11.2019, the petitioner thereafter has filed Ext.P-6 statutory appeal on 09.12.2019 before the 6th respondent-Deputy Commissioner (Appeals), State Goods and Service Tax (SGST) Department, to impugn Ext.P-4 order of demand and penalty imposed in this case and that the petitioner has also made requisite 10% pre-deposit in the said appeal - Court has already passed an interim stay order on 27.11.2019 in this W.P(C), whereby the 1st, 2nd and 3rd respondents have been directed not to realise Ext.P-3 bank guarantee towards Ext.P-4 demand and not to take any coercive steps pursuant to the forfeiture of the simple bond during the pendency of this W.P(C), etc. and this interim order has been extended by the Court - directions and orders are, therefore, passed in the interest of justice inter alia directing that until orders are passed on the said appellate proceedings, both parties will ensure that the aforementioned bank guarantee offered by the petitioner is kept alive and renewed from time to time; that the 1st respondent or none of the official respondents will take steps to pre-maturely appropriate and encash the said bank guarantee and forfeiture of the bond – Petition disposed of: High Court [para 4, 5]
Petition disposed of: KERALA HIGH COURT
2020-TIOL-765-HC-KERALA-GST
Sobha Ltd Vs ASTO
GST - Petitioner is supplier of goods and services - While marble slabs were being transported, the 1st respondent detained the petitioner's vehicle and a detention order was passed under Section 129(1) of the Central Goods and Services Tax Act, 2017, on the ground of tax evasion - appeal filed along with stay petition challenging the order issued by 2 nd respondent - limited prayer of the petitioner is that Ext.P6 appeal and Ext.P6(a) stay petition may be directed to be considered within a time frame.
Held: Bench deems it just and appropriate to direct the 3rd respondent to consider Ext.P6 appeal and Ext.P6(a) stay petition as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment, on condition that the petitioner deposits 10% of penalty amount before the 3rd respondent on or before 15.01.2020 - All further proceedings pursuant to Ext.P5 penalty order shall be kept in abeyance, till such time a decision is rendered on Ext.P6 appeal - Petition disposed of: High Court [para 5]
- Petition disposed of: KERALA HIGH COURT
2020-TIOL-760-HC-RAJ-GST
Ultra Tech Nathdwara Cement Ltd Vs UoI
GST - Petitioner is aggrieved by the notices and orders issued by respondent whereby the petitioner was called upon to pay Goods and Services Tax for the period before it took over a company named M/s.Binani Cements Ltd. - A restraint order is also sought for against the respondents from raising any further demands or from proceeding with any coercive steps insofar as dues incurred in relation to the period prior to the transfer date on which the petitioner took over the company M/s Binani Cements in proceedings under the Insolvency Bankruptcy Code 2016 .
Held: It cannot be gainsaid that the controversy at hand hovers around the simple issue as to whether the resolution plan approved by the Committee of Creditors (COC) is binding on the department or not - In this regard, it is trite to note that as per the amended Section 31 of the IBC, the Central Govt., State Govt. or any other local authority to whom, a debt in respect of payment of dues arising under any law for the time being in force are owed, have been brought under the umbrella of the resolution plan approved by the adjudicating officer which has been made binding on such governments and local authorities - The purpose of the IBC is salutary as it has been enacted to ensure that an industry under distress does not fade into oblivion and can be revived by virtue of the resolution plan - Once the offer of the resolution applicant is accepted and the resolution plan is approved by the appropriate authority, the same is binding on all concerned to whom the industry concerned may be having statutory dues - No right of audience is given in the resolution proceedings to the operational creditors viz. the Central Govt. or the State Govt. as the case may be - reply given by the Hon'ble Finance Minister emphatically conveys that the revival of the dying industry is of primacy and to secure this objective, the government would be ready to sacrifice, leaving its interest finally in the hands of the resolution professional and the COC, as the case may be - Precedence in the Scheme of the Act is given to secure the interest of the financial creditors - The purpose of the statute is very clear that it intends to revive the dying industry by providing an opportunity to a resolution applicant to take over the same and begin the operation on a clean slate - For that purpose, the evaluation of all dues and liabilities as they exist on the date of finalization of the resolution plan have been left in the exclusive domain of the resolution professional with the approval of the COC - The courts are given an extremely limited power of judicial review into the resolution plan duly approved by the COC - In the case at hand, the situation has proceeded much further - The operational creditors i.e. the Commercial Taxes Department of Govt. of Rajasthan as well as the respondent Commissioner of Goods and Service Tax assailed the resolution plan by filing appeals before Hon'ble Supreme Court with a specific plea that their dues have not been accounted for by the COC in the resolution plan and the objection so raised stands repelled with the rejection of the appeals by Hon'ble Supreme Court - In addition thereto, it may be mentioned here that from the two possible situations; one being liquidation and the other being revival, the respondents will gain significantly in the later because as per the assessed liquidity value, their dues have been assessed as nil, whereas as per the resolution plan with revival of the industry at the instance of the resolution applicant (the petitioner company herein), their rights have been secured to the extent of Rs.72 crores odd - It may be emphasized here that the amount of Rs.72 crores assessed by the resolution professional in favour of the respondent GST Department has already been deposited by the successful resolution applicant i.e. the petitioner company - Bench is of the firm opinion that the respondents would be acting in a totally illegal and arbitrary manner while pressing for demands raised vide the notices which are impugned in this writ petition and any other demands which they may contemplate for the period prior to the resolution plan being finalized - demand notices are ex-facie illegal, arbitrary and per-se and cannot be sustained - impugned demand notices and orders and any further demands pending as on the date of finalization of the resolution plan issued/raised by the respondents Central Goods and Services Tax Department, Govt. of India are quashed and struck down: High Court [para 19, 20, 21, 22, 23, 24]
GST - Bench expresses its serious reservation on the approach of the Officers concerned of the GST in persisting with the demands raised from the petitioner in gross ignorance of the pertinent statement made by Hon'ble the Finance Minister before the Parliament and the amendment brought around in the IBC - Bench is of the firm view that the authorities should have adopted a pragmatic approach and immediately withdrawn the demands rather than indulging in a totally frivolous litigation, thereby unnecessarily adding to the overflowing dockets of cases in the courts: High Court [para 25]
- Petition allowed: RAJASTHAN HIGH COURT
2020-TIOL-748-HC-AHM-GST
Sawariya Traders Vs State Of Gujarat
GST - Writ-applicant No.2 had given his vehicle on rental basis to the transporter for transportation of the goods - While the goods where in transit, the GST authorities detained and seized the goods as well as the vehicle on the ground that the goods were being transported in contravention of the provisions of the Act and the Rules - The position as on date is that the goods as well as the vehicle is in custody of the GST Authorities and a show cause notice in form GST MOV-10 has been issued.
Held: Bench permits the writ-applicants to prefer an appropriate application addressed to the authority concerned under Section 67(6) of the Act for provisional release of the goods and the conveyance - If such application is filed, the authority concerned shall immediately look into the same and pass an appropriate order within one week from the date of receipt of such application - Insofar as the challenge to the form GST MOV-10 is concerned, the writ-applicant shall file an appropriate reply and make good his case that the notice in the form GST MOV-10 deserves to be discharged by relying upon the decision in Synergy Fertichem Pvt. Ltd. vs. State of Gujarat - 2019-TIOL-2950-HC-AHM-GST - Petition disposed of: High Court [para 4 to 6]
- Petition disposed of: GUJARAT HIGH COURT
2020-TIOL-746-HC-AHM-GST
Valimohammed Jusab And Company Vs State Of Gujarat
GST - Writ applicant availed the benefit of the interim-order passed by this Court and got the vehicle, along with the goods released on payment of the tax amount and the proceedings, as on date, are at the stage of show cause notice, u/s 129 of the CGST Act and which proceedings shall go ahead in accordance with law - It shall be open for the writ applicant to point out the pronouncement of this Court in the case of Synergy Fertichem Pvt - 2019-TIOL-546-HC-AHM-GST and in particular rely on the observations made by this Court in paragraph Nos.99 to 104 of the said judgment - It is now for the applicant to make good his case that the show cause notice, issued in GSTMOV- 10, deserves to be discharged - Petition disposed of: High Court [para 5 to 7]
- Petition disposed of: GUJARAT HIGH COURT
2020-TIOL-747-HC-KERALA-GST
Festoon Props And Rentals Llp Vs State Tax Officer
GST - Limited prayer of the petitioner is for a direction to the 1st respondent to consider Ext.P10 objection and to hear the petitioner before finalising the proposal for imposition of penalty against the petitioner.
Held: 1st respondent directed to consider the objection of the petitioner and also hear the petitioner before finalising the penalty proceedings under Section 130 of the GST Act - It is made clear that till such time as orders are passed by the 1st respondent, under Section 130 of the GST Act, as directed, and the order communicated to the petitioner, recovery steps for recovery of the penalty amount, including further steps for encashment of the bank guarantee shall not be pursued against the petitioner: High Court [para 2]
- Petition disposed of: KERALA HIGH COURT
2020-TIOL-745-HC-AHM-GST
Shakti Motors Vs State Of Gujarat
GST - Writ applicant tried to file the Form GST TRAN-1 on 20th December, 2017 - However, on account of technical glitches i.e. failure in the GST system/error, the writ applicant was unable to save the details relating to the CENVAT Credit and VAT Credit in the Form GST TRAN-1 - the accumulated balance of the Cenvat Credit and the VAT Credit, which was reflecting in the return for the period ending June, 2017 filed under the erstwhile laws could not be carried forward by the writ applicant at the time of filing the Form GST TRAN-1 on 20th December, 2017 due to technical glitches - Writ applicant took up this issue first in point of time with the respondent no.3 but there was no response - based on the order of the co-ordinate Bench and the notice issued, case of the writ applicant has already been recommended to the respondent no.5-the Nodal Officer [IT Grievance] and the recommendations at the instance of the Deputy State Tax Commissioner is positive - Now, it is for the Nodal Officer i.e.the respondent no.5 to look into the recommendations referred to above and take up the issue further with the GSTN - writ applicant has brought to our notice an order No.1/2020/GST issued by the Government of India dated 7th February, 2020.
Held: Bench is of the view that the writ applicant is entitled to seek the benefit of the Order No.1/2020-GST, dated 7th February, 2020 - The order referred to above extends the period for submitting the declaration in Form GST TRAN-1 till 31st March, 2020 for a class of registered person, who could not submit the said declaration by the due date on account of technical difficulties on the common portal - necessary action shall be taken on or before 30th March, 2020 - writ application is disposed of with the direction to the respondent no.5 herein i.e. the Nodal Officer to undertake this exercise at the earliest - The GSTN upon receipt of the proposal from the Nodal Officer shall look into the same and take an appropriate decision in accordance with law, more particularly, keeping in mind the writ applicant should not suffer on account of any technical glitches: High Court [para 11, 12]
- Petition disposed of: GUJARAT HIGH COURT
2020-TIOL-744-HC-KERALA-GST
Daiwik Motors Vs ASTO
GST - In the case at hand, after passing the order as contemplated under the proviso to sub-section (1) if s,129 of the Act, Ext.P7 notice was issued directing the petitioner to show cause as to why the tax and penalty proposed should not be made payable - An opportunity of personal hearing was also afforded on 26.11.2019 - It is at that stage the petitioner had approached this court challenging Exts.P5 and P7 notices.
Held: Contention that the detention itself is without jurisdiction and authority is not acceptable because the officer had mentioned sufficient reason in Ext.P5 for detention of the transport; Whether those reasons mentioned in Ext.P5 will amount to a transit made in contravention of the provisions of the CGST Act or the Rules, is a matter which need to be adjudicated by the 1st respondent before passing an order for payment of tax and penalty as contemplated under Section (3) of Section 129 - it will suffice if the appellant is given an opportunity to participate in the adjudication process, if necessary after filing objections with supporting documents to Ext.P7 notice - Petition is disposed of by inter alia directing that the Bank Guarantee if any furnished for release of the transit shall not be encashed until the expiry of a period of 10 days from the date on which the order if any passed by the 1st respondent is communicated to the appellant: High Court [para 6 to 8]
Petition disposed of: KERALA HIGH COURT
2020-TIOL-737-HC-MP-GST
Flexituff International Ltd Vs UoI
GST - During the relevant period, the petition received a communication from the GST Commissionerate, stating that Cenvat credit on certain input services, inputs and capital goods, which had been claimed by the petitioner, was being disallowed - The petitioner claimed that such credit was legitimate and un-utilised and such credit pertained to the period preceding the introduction of the GST Act - The petitioner claimed to have committed a mistake due to technical error and failed in filing a declaration electronically in Form GST TRAN-1 - The petitioner claimed that in similar circumstances, large number of writ petitions were allowed by various high courts.
Held - Considering the decisions of the High Court and the Supreme Court in Adfert Techonolgies (P.) Ltd., vs. Union Of India, the petitioner is permitted to file or revise their already filed incorrect statutory form TRAN-1 either electronically or manually within a period of 45 days from date of this order - Though the Revenue is at liberty to verify genuineness of petitioner's claim, the petitioner shall not be denied of their legitimate claim of CENVAT/ITC on the ground of non filing of TRAN-1 by 27/12/2017: HC
- Writ petition disposed of: MADHYA PRADESH COURT
2020-TIOL-734-HC-P&H-GST
Knlights Automotives And Plastic Inc Vs UoI
GST - Respondents were directed to permit the petitioner to file Form 'TRAN-1' by the extended date - Review application filed by UOI against the said order - An earlier review application moved by the UOI stands dismissed by this Court, vide judgment dated 29.11.2019 in the case of M/s. Ajay Hardware Industries Pvt. Ltd. observing that there was an effort to re-agitate the matter, which is not within the laid down parameters of seeking a review; that the appropriate remedy for the Revenue would be to approach the Supreme Court by filing an appeal - following the said judgment, present Review Application is hereby dismissed: High Court [3, 4]
- Application dismissed: PUNJAB AND HARYANA HIGH COURT
2020-TIOL-733-HC-P&H-GST
Shiv Om Trading Company Vs State Of Punjab
GST - Petitioner had approached the Court when the goods were confiscated u/s 130 of the Act and pursuant to order dated 24.10.2019, the respondents were directed to release the detained goods/vehicle subject to payment of demanded tax as well as 100% penalty along with furnishing of personal bond equal to value of the goods to secure the amount of fine and accordingly, the goods were released upon compliance - incidentally, goods were confiscated vide order dated 20.07.2019 and which order, admittedly, is an appealable one - petitioner submits that on account of pendency of the present petition, they did not avail the statutory remedy - counsel for Revenue fairly submits that if such appeal is filed within 15 days, respondents would not raise any objection to the condonation of delay in filing such appeal - petition disposed of: High Court [para 5]
- Petition disposed of: PUNJAB AND HARYANA HIGH COURT
2020-TIOL-732-HC-P&H-GST
Shri Sai Trading Company Vs State Of Punjab
GST - Petitioner had approached the Court when the goods were confiscated u/s 130 of the Act and pursuant to order dated 04.10.2019, the respondents were directed to release the detained goods/vehicle subject to payment of demanded tax as well as 100% penalty along with furnishing of personal bond equal to value of the goods to secure the amount of fine and accordingly, the goods were released upon compliance - incidentally, goods were confiscated vide order dated 19.07.2019 and which order, admittedly, is an appealable one - petitioner submits that on account of pendency of the present petition, they did not avail the statutory remedy - counsel for Revenue fairly submits that if such appeal is filed within 15 days, respondents would not raise any objection to the condonation of delay in filing such appeal - petition disposed of: High Court [para 5]
- Petition disposed of: PUNJAB AND HARYANA HIGH COURT
2020-TIOL-731-HC-KERALA-GST
Pulickal Industries Vs State Tax Officer
GST - Petitioner has approached this Court under Article 226 challenging Exts.P3A to P3(n), whereby the assessment order under Section 2 of the State Goods and Service Tax Act 2017 has been passed, inter alia on the ground that the petitioner had, vide intimation dated 25.11.2019, informed regarding closure of the business.
Held: Petitioner has a remedy of appeal under Section 107 of the Act - On a plain and simple language of section 29 of the Act, even if the person stops the business resulting in cancellation of the registration, the liability accrued till such time cannot be waived or diminished - Petition is dismissed: High Court [para 4]
- Petition dismissed: KERALA HIGH COURT
2020-TIOL-730-HC-KERALA-GST
Fawas Associated Agencies Vs Assistant State Tax Officer
GST - While transporting two consignments of TMT steel in a Goods Vehicle from Perumbavoor to Muvattupuzha supported by invoices Exts.P1 & P1(a) and Exts.P2 & P2(a) e-way bills were detained on 27.09.2018 alleging that the e-way bills were not valid as the number of the vehicle in Part-B of the e-way bills was not entered - Petitioner submits that considering the notice and particularly the opening line of the same to be as an order, the petitioner preferred an appeal under Section 107 of the aforementioned Act, where the limitation is three months, but condonable is only one month - That appeal was dismissed vide Ext.P8 dated 14.08.2019, received on 13.11.2019, as the notice was not appealable - Incidentally, Ext.P9 adjudication order dated 21.11.2018 was passed, while the aforementioed appeal was pending - Issue is whether Ext.P4 dated 28.09.2018 demanding tax and penalty from the petitioner on account of detention of the vehicle and the goods can be construed to be an adjudication order as per the provisions of Section 129(5) of the Act.
Held: On a plain and simple reading of the provisions of the Act, sub-section (3) of Section 129 envisages that the proper officer detaining or seizing goods or conveyances shall issue a notice specifying the tax and penalty payable and, thereafter, pass an order for payment of tax and penalty under clause (a) or clause (b) or clause (c) and on payment of the amount referred to in sub-section (1) all the proceedings in respect of notice specified in subsection (3) shall be again to be concluded - The expression 'order' used in sub-section (3) can in common wording can be construed to be an order - The litigants do not have the acumen of legalities of the order particularly when the word 'order' is reflected in sub-section (3) - The appeal was filed on 11.10.2018 and the adjudication order dated 21.11.2018 was issued during the pendency of the appeal - The appeal could have been rectified by an amendment appropriately to be against the adjudication order - The authorities ought not to have adopted a rigid approach and rejected the appeal as not maintainable - At the best, request of the petitioner could have been construed in the manner for the amendment of the appeal, challenging the adjudication order in order to overcome the maintainability of the appeal - the impugned order Ext.P8 dated 14.08.2019 received on 13.11.2019 is, therefore, set aside - Appeal is restored granting liberty to the petitioner to challenge the order dated 21.11.2018 (Ext.P9) in accordance with law - Petition disposed of: High Court [para 6 to 8]
- Petition disposed of: KERALA HIGH COURT
2020-TIOL-729-HC-KERALA-GST
Emmar Trading Company Vs State Tax Officer
GST - The business engaged in by the petitioner was trading of plywood, which resulted into huge loss and, therefore, the petitioner submitted online application on 29.04.2019 seeking cancellation of registration evidenced by Ext.P3 acknowledgement - During the year 2017-18, the petitioner had marginal transactions and had filed returns accordingly under the new Act which is evident from Exts.P4 and P4(a) - Even in the year 2018-19, petitioner has not effected any business transaction and as such filed monthly returns showing Nil transactions - The petitioner has filed 12 monthly returns from April/2018 to March/2019 evidenced by Exts.P5 and P5(a) - The business was actually discontinued from 01.04.2019 onwards and the same was duly communicated to the Assessing Officer - petitioner submits that Section 62 [Assessment of non-filers of returns] of CGST Act would not have come into force in view of the fact that the petitioner had submitted a request for cancellation of the registration u/s 29 of the Act.
Held: Writ petition is liable to be dismissed solely on the ground of non-disclosure of the issuance of show cause notice dated 14.5.2019 which is conveniently omitted from the pleadings - There is no scope for interference as warranted under Article 226 of the Constitution of India, when the petitioner has a remedy of appeal as provided under the Act - Petition fails and hence is dismissed: High Court [para 4]
- Petition dismissed: KERALA HIGH COURT
AAR CASES
2020-TIOL-66-AAR-GST
Latest Developers Advisory Ltd
GST - For the purpose of maintenance services, applicant will enter into an agreement (Contract-I) with society/owners' Association/individual customers - such maintenance services embodies services for common area maintenance (CAM) and applicant levies GST for providing such services - in another area which lacks proper water supply, applicant would be entering into a contract (Contract-II) with individual members for supply of water for personal use and for which purpose they would be sourcing the same through tanker water suppliers and in the absence of any meters, water charges may be collected based on square feet area occupied by such customer and an invoice would be issued accordingly - applicant seeks to know as to whether they would be required to pay GST on water charges so collected from the customers under Contract-II; whether exemption available as prescribed in Sr. no. 99 [Water - Heading 2201] of 02/2017-CTR.
Held: Applicant is involved in two agreements where Contract-I is for maintenance services provided to Resident Welfare Association (RWA) and Contract-II is for supply of water to individuals residing in the RWA - GST on services provided by RWA to its resident members is @18% when each unit household in the society pays more than Rs.7500/- per month for the said services and the supplier of services RWA is registered by way of crossing over of threshold limit of Rs.20 lakhs - it is observed that the applicant seems to have bifurcated the services provided to the society RWA in order to escape the condition of Rs.7500/- per month per members or it might be crossing the GST registration threshold limit of Rs.20 lakhs - as a general practice, the maintenance services are inclusive of supply of water and hence supply of eater provided by applicant through separate agreement raises a suspicion - even though applicant may have separate agreement for supply of water and for receiving charges on basis of per square feet, it is not possible to supply water to each apartment separately as mentioned in Contract-II because the apartments do not have their own separate water storage tanks - applicant appears to be trying to split the contract into Contract-I and Contract-II to avoid the GST and to facilitate the society (RWA) in order to keep the maintenance charges paid by residents below Rs.7500/- - Both contracts, Contract-I and Contract-II, appear to be directly linked to each other as there is no case of direct supply of water by applicant to individual residents of the society and, therefore, applicant is required to pay GST as applicable on Contract-I: AAR
- Application disposed of: AAR
2020-TIOL-65-AAR-GST
Cosme Costa And Sons
GST - Royalty paid by applicant in respect of Mining lease is classifiable under SAC 997337 and is subject to levy of GST @5% till 31.12.2018 and thereafter @18% under Reverse charge basis: AAR
GST - Contributions made to District Mineral Foundation (DMF), the National Mineral Exploration Trust (NMET) and the Goa Mineral Ore Permanent Fund Trust (GMOPFT) are classifiable under SAC 997337 and is subject to levy of GST @5% till 31.12.2018 and thereafter @18% under Reverse charge basis: AAR
- Application disposed of: AAR
2020-TIOL-64-AAR-GST
Clay Craft India Pvt Ltd
GST - Applicant informs that its Board of Directors consists of six Directors and who are performing all the duties and responsibilities as required under the laws; that along with these responsibilities all these Directors are also working in the company at different levels of management and each one of them is holding charge of procurement of raw material, production, quality checks, dispatch, accounting etc.; that they are working as employees for which they are being compensated by way of regular salary and other allowances as per company policy and as per their employment contract; that the company is deducting TDS on their salary and PF laws are also applicable; that, therefore, they seek a ruling on the following questions viz. (a) whether GST is payable under RCM in respect of the salary paid to the Director of the company who is paid salary as per contract; that (b) whether the situation would change from above if the Director is also a part-time Director in other company also.
Held: Applicant is already paying GST by way of reverse charge mechanism on the commission paid to the Directors treating such amount as being pertaining to the service provided by them in the capacity of a Director - insofar as consideration paid in the form of salary to Directors is concerned, the same is specifically covered under Sr. no.6 of notification 13/2017-CTR which states that ‘on categories of supply of services mentioned in col. (2) of Table, supplied by a person as specified in col. (3) of Table, the whole of central tax leviable u/s 9 shall be paid on reverse charge basis by the recipient of such services as specified in col. (4) - moreover, consideration paid to the Directors is against the supply of services provided by them to the applicant company and are not covered under clause (1) of Schedule III of the CGST Act, 2017 as Directors are not employees of the company - It is very clear that the services rendered by the Director to the company for which consideration is paid to them under "any head" is liable to GST under reverse charge mechanism - Applicant company is located in the taxable territory and the Director's consideration is paid for the supply of services by Directors to the applicant company and hence same is liable to GST under RCM as provided under Entry No. 6 of 13/2017-CTR issued u/s 9(3) of the Act, 2017 - situation remains the same in circumstances made in query (b) also inasmuch as it will attract GST under RCM: AAR
- Application disposed of: AAR
CGST RULES NOTIFICATION
36/2020
Seeks to extend due date for furnishing FORM GSTR-3B for supply made in the month of May, 2020.
35/2020
Seeks to extend due date of compliance which falls during the period from "20.03.2020 to 29.06.2020" till 30.06.2020 and to extend validity of e-way bills.
34/2020
Seeks to extend due date of furnishing FORM GST CMP-08 for the quarter ending March, 2020 till 07.07.2020 and filing FORM GSTR-4 for FY 2020-21 till 15.07.2020.
33/2020
Seeks to provide relief by conditional waiver of late fee for delay in furnishing outward statement in FORM GSTR-1 for tax periods of February, 2020 to April, 2020.
32/2020
Seeks to provide relief by conditional waiver of late fee for delay in furnishing returns in FORM GSTR-3B for tax periods of February, 2020 to April, 2020.
31/2020
Seeks to provide relief by conditional lowering of interest rate for tax periods of February, 2020 to April, 2020.
30/2020
Seeks to amend CGST Rules (Fourth Amendment) in order to allow opting Composition Scheme for FY 2020-21 till 30.06.2020 and to allow cumulative application of condition in rule 36(4).
CGST CIRCULAR
136/2020
Clarification in respect of various measures announced by the Government for providing relief to the taxpayers in view of spread of Novel Corona Virus (COVID-19)
ARTICLES
Refund of ITC under Inverted Duty Structure and under Zero rated supply
Refund under GST in case of temporary registration- a practical challenge
MEIS & RoSCTL - Two swords in one sheath?
Input tax credit under GST - a right or a burden?
GST - An agenda for reforms - Part - 80 - Covid-19 relief - Relaxations and further measures
Penalty under section 271AAD- Facets and Fallout
A dead claim of interest, coming alive? - 2.0
Supply of Services by DTA to their SEZ unit - Export benefits need to be extended
RoSCTL Scheme - Is it serving its purpose?
Special dispensation needed for section 50 interest refunds
As I See It by R Sridhar
Locked Economy - What GST measures may form part of 'Key'!
JEST GST by Vijay Kumar
Corona is new; not confusion
The Cob(Web) by Shailendra Kumar
Lockdown - Life vs Livelihood - Trade-off going to be 'Coronically' painful, politically!
