Sai Radha Pharma India Pvt Ltd Vs UoI

GST - The petitioner filed the present petition seeking to re-open the GST portal for filing GST TRAN-01 so as to be avail eligible credit in the electronic ledger.

Held - In light of orders passed by this court in W.P.No.33290/2019 and Connected Matters [D.D. 19.11.2019] wherein the court extended the period for filing or revising the TRAN-1 by registered persons, the petitioner is entitled to avail of such extended period: HC

- Writ petition disposed of: KARNATAKA HIGH COURT

2019-TIOL-2862-HC-KERALA-GST

Top Hill Furniture Palace Vs ACST

GST - During the relevant period, a consignment of goods belonging to the petitioner was detained on grounds that while the e-way bill had been raised in favor of a consignee who had a GSTIN number and was a defaulter in filing returns for almost 27 months, the e-way bill showed that the consignment was meant for an unregistered dealer, so that the default of the registered dealer would not hamper the generation of e-way bill to cover the transaction.

Held - Considering such reasons for detention, the same is not unjustified - Nonetheless, the authorities concerned are directed to release the goods and the vehicle to the petitioner, conditional upon the petitioner furnishing a bank guarantee to cover the tax and penalty amount determined in the detention notice - The authority is directed to then forward the file for adjudication: HC

- Writ petition disposed of: KERALA HIGH COURT

2019-TIOL-2861-HC-KAR-GST

UoI Vs Aravind Lifestyle Brands Ltd

GST - Writ appeal filed by Revenue seeking setting aside of order dated 26.04.2019 passed by the Single Judge - Facts are that on 30th November 2017, the first respondent had filed Form GST TRAN-1 but they did not mention the quantity of goods held in stock in column 7B of the TRAN-1 - Amendment of rule 117 of the CGST Rules permitted submission of a statement in form GST TRAN-2 by 31st March 2018 or within such period as extended by the Commissioner on the recommendation of the GST Council - An attempt was made by the first respondent on 28th March 2018 to file TRAN-2 but same could not be done due to an error message - error message was created as form GST TRAN-1 was not complete in all respects inasmuch as the first respondent had not incorporated the quantity of goods held in stock in form GST TRAN-1 - a complaint was lodged with CBIC for redressal of the grievance and in the meanwhile the due date for filing TRAN-2 was extended till 30th June 2018 - consequently, a common notification dated 10th September 2018 was issued by which the registered persons filing declaration in form GST TRAN-1 by 31st March 2019 could submit FORM TRAN-2 by 30th April 2019 - since representations did not fetch any result, a Writ petition was filed by respondent and the Single Judge directed the fifth respondent to redress the grievance and enable the first respondent to file GST TRAN-2 - Contention of Revenue in the present appeal is that the observation of the Single Judge in paragraph 7 is not correct inasmuch as the direction, after the time prescribed by law for filing TRAN-2 has expired, is contrary to the statutory provisions and cannot be issued in exercise of jurisdiction under Article 226 of the Constitution of India.

Held: There is no dispute that there was a bonafide mistake committed by the first respondent while filing GST TRAN-1 in early days of the GST regime - consequently, the first respondent could not file TRAN-2 due to an error generated as result of their failure  to incorporate the quantity of goods held in stock in column 7B of Form GST TRAN-1 - in the case of Blue Bird Pure Pvt. Ltd. - 2019-TIOL-1564-HC-DEL-GST the Division Bench of Delhi High Court had held that although there was a failure on the part of the petitioner to fill up the data concerning its stock in column 7B of Form GST TRAN-1, the error was inadvertent - Punjab and Haryana High Court in its order dated 4th November 2019 - 2019-TIOL-2519-HC-P&H-GST has observed that by not allowing the right to carry forward the CENVAT credit for not being able to file the form GST TRAN-1 within the due date may violate the mandate of clause (g) of Article 19(1) of the Constitution of India - It cannot, therefore, be said that any illegality has been committed by the Single Judge while passing the impugned order - it cannot also be said that the observations made in paragraph 7 of the order are contrary to the provisions of the CGST Act and the CGST Rules - Division Bench concurs with with Delhi High Court decision in Blue Bird Pvt. Ltd. (supra) - There is no merit in the Revenue appeal, hence dismissed: High Court [para 6 to 8]

- Appeal dismissed: KARNATAKA HIGH COURT

2019-TIOL-72-NAA-GST

Director General Of Anti-Profiteering Vs Signature Builders Pvt Ltd

GST - The applicant approached the Standing Committee on Anti Profiteerting during the relevant period, alleging that the respondent had not passed on benefit of ITC through commensurate reduction in price as per Section 171 of the CGST Act and had also charged GST on the pre-GST base price of Rs 4000/- per square feet - The matter was then forwarded to the DGAP, which considered the documents submitted by the respondent and then concluded that the ITC as a percentage of the turnover that was available to the respondent during the pre-GST period was 3.17% and during the post-GST period was 5.89% - It was held that the same confirmed that post-GST, the respondent benefitted from additional ITC to the tune of 2.72% of the turnover.

Held - From the facts, it is clear that ITC as a percentage of the turnover that was available to the respondent during the pre-GST period was 3.17% and during the post-GST period was 5.89% - Hence it is established that the respondent benefitted from the benefit of additional ITC to the extent of 2.72% of the turnover - Since such computation was done based on the returns filed by the respondent as well as from the information supplied by him, the same can be relied upon - As per the DGAP's calculations, which are based on details submitted and returns filed, the profiteered amount stands at Rs 2,58,80,297/- - Hence the respondent is directed to reduce the price to be realized from the flat buyers commensurate with the benefit of ITC received - The respondent is also to refund the profiteered amount to the flat buyers without considering the benefit claimed to have been passed on - Nonetheless, no benefit is to be passed onto the applicant as the applicant did not purchase any flat or shop in the present project - Such profiteered amount be passed on along with 18% interest payable from the date from which the excess amount was collected - Moreover, denial of ITC benefit is an offence u/s 171(3A) and so penalty u/s 171(3A) r/w Section 133(3)(d) merits being imposed - SCN be issued in this regard: NAA

- Application disposed of: NAA

2019-TIOL-71-NAA-GST

Director General Of Anti-Profiteering Vs Fusion Buildtech Pvt Ltd

GST - Anti Profiteering - The applicant booked a flat in a project developed by the respondent - The applicant alleged that the respondent increased the price of the flat after introduction of GST w.e.f. 01.07.2017 and had not passed on the ITC through commensurate reduction in price - The UP State Screening Committee on Anti Profiteering recommended the matter to the Standing Committee on being prima facie satisfied that the respondent had failed to pass on the appropriate benefit of ITC to the applicant - The Standing Committee forwarded the matter to the DGAP, which proceeded to reject the contentions raised by the respondent and concluded that the benefit of 5.04% of ITC had accrued to the respondent and was required to be passed on to the applicant and other recipients.

Held - From a perusal of Section 171(1) of the CGST Act, it is clear that the legislative intent is amply clear and requires that benefit of tax reduction or ITC is to be passed on the customers by commensurate reduction in proces and the same cannot be retained by a supplier - The respondent contested that in the computation of ITC percentage for the relevant period, the DGAP did not factor the percentage of completion of each tower and unless such exercise is done, it could not be said that the credit taken was more in terms of percentage - Such contention is baseless since all towers are part of the present project and a project as a whole is taken for calculation of ITC to the turnover ratio for pre-GST & post-GST period and the same has been considered by the DGAP in calculation of percentage of ITC - Hence it is unnecessary to consider the percentage of completion of each tower - The respondent further claimed that provisions of Section 171 were applicable to the long term or continuous contracts and could not be said to be applicable to fresh contracts entered into after 01.07.2017 - Such contention too is irrelevant since the project commenced in the pre-GST era and continued in post-GST era - The provisions of Section 171 nowhere mention that the provisions were inapplicable to fresh contracts entered into after 01.07.2017 - The respondent further claimed to already have offered more than 10% discount in basic prices to all customers who booked flats post GST and that such discount was given mainly on account of availability of ITC - However, considering the provisions of Section 15(1) and Section 15(3)(a), such discount in basic prices claimed to have been paid to house buyers cannot be held to be benefit of ITC - This is because GST is chargeable on actual transaction value after excluding any discount and for the purpose of computation of profiteering, actual transaction value is to be considered for computing profiteered amount - Therefore, the respondent is found to have contravened the provisions of Section 171 and is directed to pass on the profiteered amount of Rs 4,79,04,342/- along with 18% interest within three months time - Besides, such contravention of the provisions of Section 171(3A) invites imposition of penalty u/s 171(3A) r/w Rule 133(3)(d) - SCN be issued to such effect: NAA

- Application disposed of: NAA

2019-TIOL-2847-HC-KERALA-VAT

Reji KK Vs State Tax Officer

Whether statutory provisions governing Amnesty Scheme precludes assessee from opting such Scheme if Revenue chooses to file appeal against an order that was passed in favour of assessee, by any statutory authorities in adjudicatory hierarchy - NO: HC

Whether Circular by Tax Department of the State can go beyond the statutory provisions under the guise of clarifying the scope of statutory provisions, which are quite unambiguous - NO: HC

- Assessee's petition allowed: KERALA HIGH COURT

2019-TIOL-2840-HC-PATNA-ST

Bihar State Beverages Corporation Ltd Vs UoI

ST - The petitioner has prayed for quashing/stay of the order contained in order passed by respondent no.3 wherein it has been ordered to levy service tax on reverse charge meachanism on the license fees charged by Bihar State Government for the license issued to the petitioner as well as the privilege fee charged by state government for granting exclusive wholesale business in liquor to the petitioner, both in exercise of its powers under Bihar Excise Act, 1915 and also the service tax is imposed on demurrage charges collected by petitioner from the erring suppliers as per its policy in addition to interest and penalty, on the ground that the action of the respondent no.3 in imposing service tax on the license fee, exclusive fee and demurrage charges is ultra vires, the provisions of Constitution of India, the provisions of the Finance Act, 1994 as well as the provisions of the Bihar Excise Act, 1915, and the imposition of the aforesaid service tax and passing of the impugned order by the respondent no.3 is without jurisdiction - It is not a case of inherent lack of jurisdiction, warranting interference by this Court by way of writ petition - As such, in view of availability equally efficacious alternative remedy, more so, in a case where disputed questions of fact are involved, the present petition is diposed of, reserving right to the petitioner to seek such remedies by way of appeal before the Tribunal in accordance with law - It is needless to say that the period spent by the petitioner before this Court in pursuing the instant petition, shall stand excluded for the purpose of limitation: HC

- Petition disposed of: PATNA HIGH COURT

Jai Ambey Construction Company Vs UoI

ST - The petitioner, a partnership firm is engaged in providing "Works Contract" and "Construction of Complex" Services to governmental and non governmental agencies with its business premises at Sirsa - A SCN was issued demanding service tax for having not registered itself under Service Tax Department and not paying service tax while executing various construction works - The Adjudicating Authority confirmed the demand along with interest and 100% penalty, while further imposing penalties of Rs.1,00,000/- upon each partner - The further appeal was dismissed vide order dated 29.08.2017 passed by Commissioner (A) on the ground of delay as well as non deposit of 7.5% of demand - Upon notice, respondents had sought time to file reply - At the time of hearing, the Petitioner prays for permission to withdraw the writ petition as his clients have already approached the Authorities under the Amnesty Scheme, 2019: HC

- Appeal dismissed as withdrawn : PUNJAB AND HARYANA HIGH COURT

2019-TIOL-2836-HC-P&H-ST

Maggu Tourist Company Vs CCE

ST - The appellant is engaged in business of providing bus service to its clients for picking up its employees from various destinations and drop them at the client's destination and vice versa - For the services rendered, it has already deposited the service tax alongwith interest - The challenge is to the imposition of penalties by Revenue by invoking the provisions contained under Sections 70,73,76,77 and 78 of FA, 1994 - The assessee stated that Central Government has launched 'Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 vide Central Government Notfn 04/2019 Central Excise-NT for resolution of disputes pending under indirect tax enactments, applicable to CEA, 1944 or Chapter V of FA, 1994 and the Rules made thereunder - It is further averred that case of appellant is covered under the said scheme and to seek relief under the said scheme, withdrawal of the instant appeal with the leave of this Court is condition precedent to become eligible to make a declaration under the Scheme and furnishing of the proof of such withdrawal to the designated committee for availing the benefit of the scheme - The application is supported by an affidavit of Ved Parkash Maggu, one of the partners of appellant Company - It is thus prayed that the instant appeal be dismissed as withdrawn with leave of the court to avail the relief granted under the said scheme - Appeal is dismissed as withdrawn: HC

- Appeal dismissed as withdrawn : PUNJAB & HARYANA HIGH COURT

CENTRAL EXCISE

CUSTOMS

2019-TIOL-2837-HC-P&H-CUS

CC Vs Ghaio Mall And Sons

Cus - Revenue is in appeal against the order - 2018-TIOL-3452-CESTAT-CHD passed by Tribunal whereby the appeal filed by respondent was allowed and it was held entitled to claim refund of Rs.4,00,442/- on account of additional duty of Customs, which claim was rejected by Commissioner (A) being hit by bar of limitation of one year - In view of instructions dated 30.12.2016, the monetary limit for filing of appeals before this Court has been fixed at Rs.20 lacs and as such the instant appeal is not maintainable: HC

- Appeal dismissed: PUNJAB AND HARYANA HIGH COURT

TP - Pr. CIT is not justified in revising assessment on ground of non referring of specific domestic transactions, if provision talking about such reference stood withdrawn: ITAT

TP - Belated filing of audit report in Form 3CEB u/s 92E does not amount to failure in maintaining requisite documentation u/s 92D r/w Rule 10D: ITAT

TIOLCORPLAW

Arbitration - Mere exchange of correspondences with respect to transactions of business, post expiry of arbitration agreement cannot be regarded as extension of agreement : HC

IBC - If insolvency application u/s 7 is filed within 3 years from abatement of SICA, it is well within limitation period : NCLAT