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2020-TIOL-1946-HC-DEL-GST
SH Exports Vs CCGST
GST - Petitioner states that procured goods had been exported under Section 16 of Integrated Goods and Services Tax Act, 2017 as zero rated supply without payment of IGST against LUT for the months of July and August 2019 and the petitioner is entitled for the refund of input tax credit, which had been paid as GST on the said goods at the time of procurement - Petition has been filed seeking a direction to the respondents to release the refund qua the refund applications filed by it in respect of export for the months of July and August, 2019 – Counsel for Revenue has produced letter dated 10.11.2020 written by the Assistant Commissioner, Naraina Division informing that DGGI, Ahmedabad has booked a case for fraudulent availment /passing of ITC against M/s S.H. Exports and consequent to that they have directed to put on hold the refund of M/s. S.H. Exports; that another letter dated 10th November, 2020 has been written by Assistant Commissioner, Naraina Division to the petitioner informing it of an opportunity of personal hearing on 17th November, 2020 at 12:00 Noon under Section 54(11) of the CGST Act, 2017 before the Principal Commissioner of CGST Delhi, South Commissionerate in the matter of refund claims filed by the petitioner – In view of the aforesaid facts, petitioner wishes to withdraw the present writ petition with liberty to also challenge the two letters dated 10th November, 2020.
Held: With the aforesaid liberty, present writ petition stands disposed of: High Court [para 9, 10, 12]
- Petition disposed of: DELHI HIGH COURT
2020-TIOL-1945-HC-KERALA-GST
Damodar Corporation Vs UoI
GST - Petitioner is aggrieved by Ext.P14 series of orders passed against him under the GST Act - It is the contention of the petitioner that in the absence of a hearing extended to the petitioner the impugned orders would be vitiated by a non-compliance with the rules of natural justice - Counsel for Revenue submits that while notices were issued to the petitioner calling him for a personal herring, and the petitioner had submitted a reply and sought for an adjournment, the officer concerned had proceeded to consider the reply offered by the petitioner on merits and pass final orders, without granting a further opportunity of hearing to the petitioner.
Held: Inasmuch as the impugned orders were passed without hearing the petitioner, the said orders cannot be legally sustained inasmuch as they have been passed in violation of the rules of natural justice - The 7 th respondent shall pass fresh orders as directed within three months - petitioner is directed to appear before the 7 th respondent at his office at 11 am on 27.11.2020 either through physical appearance or through video conferencing - Petition disposed of: High Court [para 2]
- Petition disposed of: KERALA HIGH COURT
2020-TIOL-1944-HC-KERALA-GST
Mohammed Shereef Vs State Of Kerala
GST - Petitioner is aggrieved by Ext.P14 series of orders passed against him under the GST Act - It is the contention of the petitioner that in the absence of a hearing extended to the petitioner the impugned orders would be vitiated by a non-compliance with the rules of natural justice - Counsel for Revenue submits that while notices were issued to the petitioner calling him for a personal herring, and the petitioner had submitted a reply and sought for an adjournment, the officer concerned had proceeded to consider the reply offered by the petitioner on merits and pass final orders, without granting a further opportunity of hearing to the petitioner.
Held: Inasmuch as the impugned orders were passed without hearing the petitioner, the said orders cannot be legally sustained inasmuch as they have been passed in violation of the rules of natural justice - The 7 th respondent shall pass fresh orders as directed within three months - petitioner is directed to appear before the 7 th respondent at his office at 11 am on 27.11.2020 either through physical appearance or through video conferencing - Petition disposed of: High Court [para 2]
- Petition disposed of: KERALA HIGH COURT
2020-TIOL-1943-HC-KAR-GST
Sanchar Telesystems Ltd Vs CTO
GST - Import of Walkie-talkie sets - Dispute lies within a narrow compass - Was the consignment moved from the airport without generating the prescribed e-way bills? - It is observed that there is no serious dispute about the petitioner's assertion that consignment was being transported to the transporter's godown situated within the prescribed distance from the airport premises and the e-way bills are generated between 3:06 p.m. and 3:12 p.m. - The petitioner asserts that the CTO intercepted the vehicle and directed the driver of the vehicle to the CTO Enforcement Office, Devanahalli because Form-Part B of the e-way bills were not populated, and the endorsements in the prescribed form were served at 4:15 p.m. when the vehicles reached the CTO Enforcement Office premises - The petitioner to substantiate its aforesaid case proposes to rely upon the data available on Internet while the CTO relies upon correspondence with M/s Menzies Aviation Security - The documents relied upon by the petitioner are not accepted and the reason assigned by the respondents for non-accepting the petitioner's case and the documents is rooted inseparably in the reliance upon the data furnished by M/s Menzies Aviation Security in response to the communication by the CTO - CTO has consequently issued the impugned orders u/s 129(3) of the Act demanding tax and penalty - in the appeal filed u/s 107, the second respondent has confirmed the CTO's orders - Petition filed against these orders.
Held: The provisions of section 129(4) of the KGST Act mandates that no tax, interest or penalty shall be determined under sub-section (3) without giving the person concerned an opportunity of being heard - This stipulation that no tax or interest or penalty shall be determined unless the person concerned is given an opportunity of being heard incorporates the seminal principle of fair play which is inherent in the established principle that no person is to be condemned unheard - If the CTO intended to rely upon data maintained by a third party and shared by such third party pursuant to the communication made by him, the fair play makes it incumbent on the CTO to provide an opportunity to the petitioner to meet the data lest the petitioner is fastened with the liability to pay either the tax or interest or penalty on the basis of the data that, allegedly - and as is now alleged by the petitioner, is obtained behind its back to its detriment - The impugned orders when thus tested cannot be sustained and will have to be quashed and the proceedings restored to the CTO for fresh consideration with the necessary opportunity to the petitioner to meet all materials that could be relied against it - Petitioner to appear before CTO on 11.11.2020: High Court [para 13 to 15]
-Petition disposed of : KARNATAKA HIGH COURT
2020-TIOL-1942-HC-HP-GST
Macleods Pharmaceutical Ltd Vs Prakash Kumar
GST - TRAN-1 - Petitioner asserts that the judgment dated 20.11.2019 - 2019-TIOL-2824-HC-HP-GST passed by a Division Bench of this Court in CWP No.1551 of 2018 has been wilfully disobeyed by the respondents, hence, instant contempt petition has been preferred - Inasmuch as the w rit petition was disposed of with a direction to the respondents to consider the case of the petitioner-Company for amendment of TRAN-1 form and pass appropriate orders within a period of three weeks.
Held: The direction issued to the respondents in the writ petition was to 'consider' the case of the petitioner and to decide it in light of the judgment and communication referred to in Adfert Technologies Pvt. Ltd's case - 2019-TIOL-2519-HC-P&H-GST - Pursuant to the directions, the respondents 'considered' and decided the case of the petitioner - The decision has been taken, therefore, it cannot be said the respondents have flouted the judgment passed by this Court - Consequently, no contempt is made out and the same is dismissed - The respondents considered the judgment, the communication and other related aspects as per their wisdom and took a decision on 02.12.2019 as communicated vide letter dated 06.01.2020 for not permitting the petitioner to amend the TRAN-1 form - Whether the decision is in consonance with law or not is not to be gone into while deciding the contempt petition - However, liberty is reserved to the petitioner to seek appropriate remedy in accordance with law in case it still feels aggrieved by the order passed by the respondents pursuant to the judgment in CWP No.1551 of 2018 - Petition disposed of: High Court [para 5]
-Petition disposed of : HIMACHAL PRADESH HIGH COURT
2020-TIOL-1941-HC-KERALA-GST
Veer Pratab Singh Vs State of Kerala
GST - A consignment of scrap that was being transported from Coimbatore to Gujarat from the 1st petitioner, as consignor, to the 2nd petitioner, as consignee, was detained by the respondents at Kodumuda in Palakkad - The consignment in question was accompanied by a tax invoice and an e-way bill that showed payment of IGST as also that the transportation of the goods was from Coimbatore to Gujarat - The respondents, however, obtained evidence that suggested that the loading of the consignment was effected in Palakkad, within the State of Kerala, and not in Coimbatore - Consequently, an order of confiscation was passed under Section 130 of the CGST Act, confiscating the goods and the vehicle - In the writ petition, the petitioners impugn the confiscation order.
Held: While the respondents were justified in detaining the goods and the vehicle, based on the material that was available with them which clearly showed that the transportation undertaken by the petitioners, of the goods in question, was not necessarily from Coimbatore as was declared in the invoice and the e-way bill that were produced by the petitioners, the said material does not point to any intention to evade tax, more so when, there is nothing to doubt the genuineness of the declaration of the petitioners that the goods were consigned to Gujarat from Coimbatore, or any material to suggest that the ultimate destination of the goods was any place other than Gujarat - It has to be noticed that the 1st petitioner had admitted his liability to IGST by declaring the same in the invoice, and if the goods, even assuming that they were loaded from Palakkad, were destined to Gujarat, it is the IGST that had to be paid by the 1st petitioner/consigner of the goods - To that extent, therefore, it cannot be said that there was any intention to evade payment of tax because the tax liability, in either event, would be the same - That apart, there is no specific averment in the notice served on the petitioners, as regards any act or omission, that was suggestive of an intention to evade payment of tax - Therefore, the proceedings initiated against the petitioners u/s 130 of the GST Act, cannot be legally sustained - The impugned order u/s 130 of the GST Act is quashed and the respondents are directed to pass orders under Section 129(3) of the GST Act, after hearing the petitioners, within a week - In the meanwhile, the respondents shall permit the petitioners to clear the goods and the vehicle on furnishing a bank guarantee for the tax and penalty amounts determined, consequent to the detention of the goods and the vehicle - if the final order u/s 129(3) is adverse to the petitioners, the respondents shall refrain from invoking the bank guarantee furnished by the petitioners for a period of three weeks from the date of communication of the order so as to enable the petitioners to invoke appellate remedy, if they so desire - The writ petition is disposed of: High Court [para 4]
-Petition disposed of : KERALA HIGH COURT
2020-TIOL-65-AAAR-GST
Apsara Co-Operative Housing Society Ltd
GST - Applicant/appellant is a co-operative housing society registered under the Maharastra State Co-operative Societies Act, 1960 and formed by its members who are the shareholders - They had filed an application before the Authority seeking a ruling on whether the activities carried out by them would amount to supply and whether the same is liable to GST; whether they are correctly discharging GST liability for which they produced illustrative invoices raised on the members of the society - AAR held that the Activities carried out by the applicant for its members qualifies as "supply" under the definition of s.7 of the CGST Act, 2017; that the contention made by applicant with regard to the principle of mutuality to establish their claim that the applicant society and its members are not a distinct entity is not tenable insofar as taxability in the GST regime is concerned; that the case laws cited by the applicant are distinguishable; that as regards the second query raised by the applicant as to whether they have correctly discharged the GST as per the illustrative copy of the invoice generated by the applicant is concerned, such a question does not pertain to any matter in respect of which an Advance ruling can be sought under the GST Act, hence the Authority does not have jurisdiction to pass any ruling on such matter; said question is not maintainable under the Act - Aggrieved, the applicant has filed an appeal before the AAAR.
Held: Supreme Court in the case of Calcutta Club [ 2019-TIOL-449-SC-ST-LB ] had observed that both the amendments viz. amendment to Article 366(29A) of the Constitution and that made in the Finance Act, 1994 w.e.f 01.07.2012 were inadequate in doing away with the principle of mutuality and the deeming provisions fell short of taxing sales or service provided by incorporated clubs - However, such is not the case under the CGST Act, 2017 because the definition of ‘person' under section 2(84) of the Act clearly includes both incorporated and unincorporated clubs - Further, the definition of business includes provision by a club, association, society or any such both (for a subscription or any other consideration) of the facilities or benefits to its members - The word ‘club' is not qualified, therefore, it should be taken in the sense it conveys - that is, it includes both ‘incorporated' and ‘unincorporated clubs' - both these deeming fictions, unlike the inadequate deeming fictions introduced in the West Bengal Sales Tax Act and the Finance Act, 1994 comprehensively convey the intention of the legislature to do away with the principle of mutuality by including supplies by both incorporated and unincorporated clubs to its members - This is where the difference lies between the earlier laws and CGST and, therefore, the Supreme Court judgment in the case of Calcutta Club (supra) does not apply to the facts of the case - The provisions under the CGST law - definition of ‘person', ‘business' and ‘supply' are now self-contained, unqualified and wide enough to include the supply by both - incorporated and unincorporated clubs to its members and by their extensiveness completely does away with the principal of mutuality - Appellant's contention that a particular transaction, which cannot be considered as business under the Income tax law cannot be considered as business even under GST law is not acceptable as the definition of the term ‘business' provided under the CGST Act, 2017 is much wider than the definition of the term ‘business' provided under the Income Tax Act, 1961 - Rulings of the Appellate authority in the cases of Lions Club [ 2019-TIOL-72-AAAR-GST ] and Rotary Club [ 2020-TIOL-09-AAAR-GST ] relied upon by the appellant to support their contention are clearly different from the present case inasmuch as the activities undertaken by the clubs in those cases, for which they have been charging ‘membership fee' in the form of the reimbursement of expenditures incurred by them while performing the charitable activities were purely administrative in nature and no benefits and facility, whatsoever, have been provided by those clubs, which is not the case in the present matter - Insofar as the second question raised by the appellant as to whether they are correctly discharging their GST liability, Appellate authority agrees with the ruling given by the AAR that the said question cannot be answered as the same is outside the purview of advance ruling in terms of s.97(2) of the Act, 2017 - notably, clause (e) of s.97(2) also does not apply as the said clause does not speak about the computation or assessment of the tax liability of any transaction but only the determination of liability i.e. whether any supply is liable to GST or otherwise - Held, therefore, that there is no reason to interfere with the ruling of the AAR - Activities carried out by the appellant would amount to supply in terms of s.7(1)(a) of the Act, 2017, and the same would be liable for GST subject to the condition that the monthly subscription/contribution charged by the society from its members is more than Rs.7500/- per month per member and the annual aggregate turnover of the society by way of supplying of services and goods is also Rs.20 lakhs or more - second question regarding correctness of the GST liability on the basis of illustrative invoices cannot be answered in view of s.97(2) of the Act, 2017 - appeal rejected: AAAR
-Appeal rejected : APPELLATE AUTHORITY FOR ADVANCE RULING | |
