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2020-TIOL-94-SC-GST
Sandeep Goyal Vs UoI
GST - Allegation against the petitioner is that he has created about 555 fake firms and has committed fraud to the tune of Rs.74 crores - maximum punishment to be imposed on the petitioner, if convicted, is five years - It is also not in dispute that the petitioner has already undergone one year and eight months imprisonment; that some of the accused are released on bail - Having regard to the totality of facts and circumstances, it is directed that State shall make endeavour to complete the investigation within three months and in case the investigation is not completed within three months, the petitioner shall be released on bail by the Trial Court by imposing appropriate terms and conditions - In case, the investigation is completed and the report is filed within three months, it is open for the petitioner to move the trial court for bail - If such an application is filed, the same shall be considered on its own merits by the trial Court - Special Leave Petition is disposed of: Supreme Court
- Petition disposed of: SUPREME COURT OF INDIA
2020-TIOL-910-HC-RAJ-GST
Sandeep Goyal Vs UoI
GST - Petition is filed u/s 439 Code of Criminal Procedure, 1973 seeking regular bail in F.I.R. No.15/2018, registered at Police Station DGGI, GST, Jaipur, Rajasthan for offence under Sections 132(1)(b)(c)(d)(f)(i) and (i) read with Section Sub-section 5 of the CGST - Petitioner submits that his earlier bail petition was dismissed as bail petition filed by co-accused Himani Munjal had been dismissed by this court; however, co-accused has been granted bail by Apex Court vide order dated 27.01.2020, therefore, the petitioner is also entitled to be granted bail; that the petitioner is already in custody for about one and a half years and maximum period of sentence that can be awarded in the case is five years.
Held: Prosecution case is that the petitioner and co-accused by creating fake firms, have issued invoices involving tax amount of more than Rupees Seventy Four Crores; that the firms were misused for evading GST input taxes by the accused; that fake firms had been created in different States of the country; that although, co-accused Himani Munjal has been granted bail by the Apex Court, it appeared that she had been granted bail on account of the fact that she is a lady and has a young child to lookafter and, therefore, the case of the petitioner can be said to be on different footing - Keeping in view the seriousness of the allegations leveled against the petitioner, no ground for grant of bail to him is made out - Petition dismissed: High Court
- Petition dismissed: RAJASTHAN HIGH COURT
2020-TIOL-909-HC-MP-GST
Lalit Kumar Gandhi Vs State of MP
Miscellaneous/GST - Applicant is facing trial for offence punishable under Section 409, 467, 468, 120-B and 427 of the IPC - Application made by the applicant under Section 439 Cr.P.C. for grant of bail during trial - allegation is that applicant had received a sum of about Rs.6,52,00,000/- for supply of pesticides and insecticides and as against this he had made the supply worth Rs.4,30,00,000/- only and has not made the supply against the payment of Rs.2,22,50,000/- - Further allegation in the FIR is that though the complainant had approached the applicant for supply of pesticides against remaining payment but the same was avoided and the applicant had also misbehaved with the complainant and by making fabricated invoices and uploading the same on the GST portal, the applicant had committed further offence - applicant submits that the transaction was spread over a period of past three years and that the applicant himself had made a complaint at Police Station in Rajasthan on 30.7.2019 alleging that a sum of Rs.1,35,00,000/- is receivable by the applicant from the complainant but no action was taken – applicant further submits that allegation that the invoices have been fabricated is incorrect because the invoices have been shown in the GST Return-1, which tallies with GSTR-3.
Held: On the query made by the Court that if the applicant is ready to deposit Rs. 1 Crore with the trial Court and secure the remaining amount by furnishing the solvent security, the submission of applicant is that the amount of deposit be reduced by 50% - after considering the submissions and taking note of the prevailing Covid-19 infection and considering the fact that the applicant is in custody since 28.11.2019 and in the present scenario, conclusion of trial is likely to take time and also taking note of the submission of the applicant in respect of the condition relating to deposit of the amount, it is directed that the applicant-Lalit Kumar Gandhi will be released on bail subject to complying with the conditions as laid down: High Court
- Applicant disposed of: MADHYA PRADESH HIGH COURT
2020-TIOL-908-HC-ALL-GST
Shahzad Alam Vs State of UP
GST - Petitioner seeks quashing of the first information report dated 06.02.2020 registered as Case Crime No. 0350 of 2020 at P.S. Sihani Gate, District- Ghaziabad, under Sections 420, 424, 467, 468, 120-B I.P.C. and section 122/132 of the CGST Act, 2017 - allegation is that the petitioner along with others had set up bogus firms for the purpose of evading tax and had been preparing false documents/invoices.
Held: Above allegations have been made on the basis of search and seizure operations and the enquiry that followed - As to how the bogus tax invoices were used or were to be used would be determined on the basis of material collected during the course of investigation - submission of petitioners that there could be no registration of first information report without a specific order under the GST Code in respect of evasion of tax is not acceptable for the simple reason that the GST Code does not impliedly or explicitly repeals the provisions of Indian Penal Code or the Code of Criminal Procedure and, therefore, an offence punishable under the Indian Penal Code can very well be reported and investigated as per law - as the impugned first information report discloses commission of cognizable offence, the prayer to quash the first information report cannot be accepted - petition is dismissed without prejudice to the right of the petitioners to apply for bail: High Court [para 11, 12, 14, 15]
- Petition dismissed: ALLAHABAD HIGH COURT
2020-TIOL-907-HC-P&H-GST
Ireo Hospitality Company Pvt Ltd Vs UoI
GST - Principal challenge in the batch of five petitions is to the provisional attachment order dated 7th February, 2020 issued by the Principal Commissioner, CGST Commissionerate, Gurugram attaching the bank accounts of the Petitioner - interim orders passed in this regard on various occasions - Petitioner has on the hearing date handed over an affidavit dated 17th March, 2020 of the Petitioners setting out in a tabulated form the payments that were required to be made by the Petitioners as "essential business payments" upto 10th April, 2020 from the provisionally attached accounts for running their day to day operations and for "no other purpose" - Petitioner has further submitted that they expect further receipts of Rs.7 crores upto 10th April, 2020 on account of customer payments; that money received by IHCPL by way of borrowings, loans, OD facility and CC limit ought not to be attached by the Respondents and that the interim order already passed in this regard by this Court on 18th February, 2020 should be made absolute; that the Petitioners' have fixed deposits (FD) in various bank accounts to the tune of Rs.52,23,71,188/- which are under lien on account of security except FDR of Rs.1,43,31,817/- which is free from encumbrances; that petitioner undertakes that subject to the impugned orders being set aside, the time bound directions be issued to the respondents to pass fresh orders in accordance with law; that the Petitioners would ensure that no payments other than those set out would be made; that the petitioner would furnish to the respondents the receipts for the payments made to the vendors for completing the live residential and commercial projects of the Petitioners, accompanied by an affidavit explaining the details of such payment; that the Petitioners will maintain status quo with regard to FDs, both which are under lien as well as the FDR which is free from encumbrances.
Held: Binding down the Petitioners to the aforementioned statements made, the impugned order of provisional attachment of Petitioners' bank accounts are set aside upon the condition that fresh orders would be passed by the Respondent No.2 in that regard, in accordance with law, taking into account the submissions made by the Petitioners in these petitions, not later than 10th April, 2020; that the said orders will be communicated to each of the Petitioners not later than 12th April, 2020; that it will be open to the Petitioners, if aggrieved by such orders, to seek appropriate remedies in accordance with law - It is clarified that the interim order already passed by this Court on 18th February, 2020, viz., de-freezing the OD account of IHCPL, including any borrowings, terms loans, CC limits will continue - Petitions disposed of: High Court [para 15, 17, 18]
- Petitions disposed of: PUNJAB AND HARYANA HIGH COURT
AAR 2020-TIOL-97-AAR-GST
Swamy Kshethra Development Authority
GST - Auctioning of services for collection of vehicle entry frees, for tonsuring the heads of devotees, of the right to collect services and collect charges for vahana Pooja are supply of services classifiable under SAC 9997 - attract GST @18%, Sr. no. 35 of 11/2017-CTR: AAR
GST - Sales of Prasadam is exempt as per Entry no. 98 of 2/2017-CTR but if goods other than Prasadam are sold, they would be liable to tax at appropriate rates as applicable to those goods: AAR
GST - Renting of commercial shops - if rental value is less than Rs.10000 per month per shop such services are exempted in terms of Entry 13 of 12/2017-CTR but if the rent is more than Rs.10000 per month per shop then the same would be liable to tax at 18% under SAC 9972, Entry 16 of 11/2017-CTR: AAR
GST - Services of accommodation to pilgrims are exempt where charges are less than Rs.1000 per day per room - 12/2017-CTR: AAR
GST - Seva charges, Special Darshan charges is exempt from CGST and KGST as they are not covered under supply and also exempt as they are covered under Entry no. 13(a) of 12/2017-CTR: AAR
GST - Renting out Kalyanamandapams is exempt if the rental is less than Rs.10,000/- per day as per Entry 13(b) of 12/2017-CTR: AAR
GST - Entry fees for providing access to temple is liable to tax @18% GST as per Entry no. 11(ii) of 11/2017-CTR: AAR
GST - Future tendering of the right to collect charges and provide services is liable to tax @18% GST as per Entry no. 35 of 11/2017-CTR: AAR
- Application disposed of: AAR
2020-TIOL-96-AAR-GST
Biocon Ltd
GST - It is an admitted fact that the product being supplied by the applicant cannot be directly administered as injection - In the instant case the applicant supplies bulk drug Micafungin Sodium to their customers and hence the said drug becomes raw material to the said customers - the entry would have been 'Micafungin Sodium' had the intention of the government been to extend the benefit of concessional rate to the bulk drugs/raw material - However, the entry at Serial number 114 reads 'Micafungin sodium for injection' - Therefore, Sale of Micafungin sodium by DTA unit of applicant is not covered under Sr. no. 114 of List 1 to Entry no. 180 of 1/2017-CTR and, therefore, is not entitled for concessional rate of GST of @5%: AAR
- Application disposed of: AAR
2020-TIOL-95-AAR-GST
Anil Kumar Agrawal
GST - Incomes received towards (i) salary/remuneration as a Non-Executive Director of a private limited company, (ii) renting of commercial property, (iii) renting of residential property and (iv) the values of amounts extended as deposits/loans/advances out of which interest is being received are to be included in the aggregate turnover, for registration - income received from renting of residential property is to be included in the aggregate turnover though it is an exempted supply: AAR
GST - Dividend on shares, capital gains/losses on sale of shares are relevant to the shares (securities) and the income earned in this relation is nothing but application of money, therefore, this income earned out of shares, which are excluded from the definition of goods or services are not relevant to the aggregate turnover and hence are not required to be added to the aggregate turnover for registration under the GST Act: AAR
GST - Amounts received on maturity of the insurance policies are not relevant to the aggregate turnover and hence are not required to be added to the aggregate turnover for registration under the provisions of the GST Act: AAR
- Application disposed of: AAR
2020-TIOL-24-AAAR-GST
Siemens Ltd
GST - Applicant had sought a ruling as to whether the freight charges recovered by them from the customer without issuance of consignment note will be eligible for exemption from GST as per notification 12/2017-CTR, Sr. no. 18 - AAR held that c ontracts are linked by a ‘cross fall breach clause' deeming that any breach in either of the contracts to be a breach of the other contract as well providing the recipient with an absolute right to terminate both the contracts or claim damages - the 'cross fall breach clause' settles unambiguously that supply of goods, their transportation to the contractee's site delivery and related services are not separate contracts but only form part of an indivisible composite works contract supply - composite nature of the contract is clear from the fact that the first contract cannot be performed satisfactorily unless the goods have been transported and delivered to the contractor's site - inasmuch as the two contracts are not separately enforceable - therefore, the supply is in the nature of ‘Composite supply of Works Contract' which is a service and would be taxable @18% in terms of notfn. 11/2017-CTR - aggrieved by the ruling of AAR, applicant is in appeal before the AAAR.
Held: From a conjoined and harmonious reading of various clauses of Third and Fifth contract awarded to the appellant and their interdependency under the whole contract comprising of six contracts, it cna be safely concluded that the agreement for setting up of 320KV, 2 x 1000MW VS based HVDC Terminals and DC XLPE Cable system betweeen Pugalur and North Trichur associated with HVDC Bipole link between Western region and Southern region is a Composite Works Contract as defined u/s 2(119) of the CGST Act and taxable @18% and hence transportation services provided by appellant being part of the whole works contract will be taxable @18% as WCS and will not be eligible for exemption as provided at Sr. no. 18 of 12/2017-CR - Order passed by AAR is confirmed and appeal is dismissed: AAAR
- Appeal dismissed: AAAR 2020-TIOL-23-AAAR-GST
Segoma Imaging Technologies India Pvt Ltd
CGST - Segoma India, the appellant, takes photos of diamonds and uploads photos on software of Segoma, Israel - Segoma, Israel is also a subsidiary of R2Net based in USA and as per the agreement between R2Net and its customers, R2Net lists on the system only those diamonds that are photographed with R2Net Display technology - As per the terms of the agreement, customers of R2Net send their diamonds and or gem stones to be photographed to Segoma India who issues memo of receipt of diamonds to customers of R2Net - Appellant claimed that this transaction between Segoma, India and Segoma, Israel of providing photography services is a 'zero rated export supply' within the meaning of s.16 of the IGST Act and exempt from levy of tax and had accordingly sought a ruling from the Authority for Advance Ruling - AAR observed that t here is no need that the goods physically required for rendering services must be owned by the recipient of the services - on the other hand, it is sufficient for the recipient to make them physically available to the service provider for rendering services - in this case, the event of photography services pertaining to diamonds made physically available by the recipient of services to the provider of services is over and the service is clearly provided in India where the services are actually performed; that all the conditions stipulated in section 2(6) of the IGST Act are to be simultaneously complied with in order to consider any services as export of services - since conditions (iii) and (iv) have not been complied with, impugned supply is not “export of service' within the scope of section 2(6) of the IGST Act - as location of the supplier of service is in Mumbai and the place of supply as determined as per provisions of section 13(3) of the IGST Act is also in Mumbai, a place where the services are actually performed, the services are to be treated as intra state supply in terms of section 8(2) of the IGST Act and liable to tax under the provisions of MGST Act and CGST Act - supply of ‘photography service' is liable to GST - appellant is aggrieved and in appeal before AAAR.
Held: In order to determine which levy, whether CGST and SGST or IGST will be imposed on the said supply of photography services of the appellant, Authority has to determine the 'place of supply' and only then can one determine the nature of levy, whether CGST and SGST or IGST which will be imposed on the said supply of service - Since Authority does not have jurisdiction in view of s.97(2) of the CGST Act to determine the place of supply of services or goods or both, no ruling on this particular question can be passed by the Advance Ruling Authority - This rationale also holds true in the case of the second question asked by the appellant i.e. whether the said supply could be treated as export within the meaning of s.2(23) r/w s.2(6) of the IGST Act - Inasmuch as AAR should not have passed any ruling on the above mentioned two questions asked by the appellant and since the AAR has passed the ruling by transcending its jurisdiction, Appellate Authority quashes the impugned ruling - No ruling can be passed in the instant matter: AAAR
- Appeal disposed of: AAAR
2020-TIOL-22-AAAR-GST
Micro Instruments
GST - AAR had held that Commission received by applicant in convertible foreign exchange for rendering services as an 'Intermediary' between an exporter abroad receiving such services and an Indian importer of an equipment is NOT an export of service; that said supply will be treated as inter-state supply and IGST will be levied @18% - Appeal filed before AAAR.
Held: In order to determine which levy, whether export, or CGST or IGST, will be imposed on the said supply of 'intermediate services' of the appellant, Authority will have to determine the 'place of supply' - only then can the Authority determine the nature of levy, as to whether the same qualifies as an 'export' - As per the law, s.97(2), the Authority does not have the jurisdiction to determine the 'place of supply of services or goods or both' and accordingly no ruling on this particular question can be passed by the Advance Ruling Authority - such rationale also holds true in case of the second question asked i.e. whether the said supply could be treated as 'intra-state supply' u/s 8(1) of the IGST Act r/w s.2(65) of the CGST Act - AAR should not have passed any ruling on the above mentioned questions and since ruling has been passed by transcending its jurisdiction, Authority quashes the impugned ruling by the AAR: AAAR
- Appeal disposed of: AAAR |
