2021-TIOL-496-HC-MAD-GST
Ram Auto Vs CCT & CE
GST - Petitioner was required to file the necessary GST TRAN-1 - While filing the said Form, instead of entering the details under column 7(a), the petitioner erroneously entered the details against column 7(d) - Column 7(d) would apply only in cases of stock of goods not supported by invoices/documents evidencing payment of tax whereas the petitioner was very much having the necessary invoices/documents evidencing payment of tax - Since the petitioner did not correctly enter the details, the petitioner was not given the consequential credit under the new GST regime - Jurisdictional Commissioner/first respondent informed the petitioner that it is not possible for them to consider the petitioner's request in the absence of any specific Court order, hence, the present writ petition came to be filed.
Held: Decision of the Division Bench of Delhi High Court in the case of Blue Bird Pure Pvt. Ltd. - 2019-TIOL-1564-HC-DEL-GST provides a complete answer to all the objections raised by the respondents - Factual matrix obtaining in Tara Exports' case is quite different from the case on hand - Communication impugned in the writ petition is quashed - The second respondent is directed to forward the petitioner's application to the third respondent forthwith and without any delay - The third respondent will verify the correctness of the averments set out in communication of the jurisdictional Assistant Commissioner to the Commissioner of Central Taxes & Central Excise, Madurai - Upon the third respondent being satisfied with the correctness of the same, the third respondent will grant the relief as sought for by the writ petitioner - The entire exercise shall be concluded within a period of twelve weeks from the date of receipt of a copy of this order - The writ petition stands allowed: High Court [para 8, 9]
-Petition allowed : MADRAS HIGH COURT
2021-TIOL-494-HC-MP-GST
Kanti Abhushan Vs State Of Madhya Pradesh
GST - Petitioner challenges the cancellation of its GST registration w.e.f 01.07.2017 vide order dated 24.08.2019 passed by respondent no.3 - Petitioner has argued that the impugned order has been passed without serving a show cause notice on the petitioner - It is argued that in the notice (Annexure P/1) itself, the petitioner was required to furnish its reply within seven working days from the date of receipt of the notice and at the same time, the petitioner was directed to appear on 25.7.2019 before the Assistant Commissioner of State Tax, the authority who had issued the show cause notice dated 22.7.2019 (Annexure P/1) i.e. within three days.
Held: Bench deems it appropriate to remit the matter to the competent authority for considering the same afresh in accordance with law - Petitioner shall file a reply to the show-cause notice (Annexure P/1) dated 22.7.2019 within fifteen days and on filing of such reply by the petitioner, the said competent authority shall consider and decide the matter afresh in accordance with law within reasonable time - Petition disposed of: High Court
-Petition disposed of : MADHYA PRADESH HIGH COURT
2021-TIOL-493-HC-MUM-GST
Sky Corporation Vs UoI
GST - Petitioner's [Proprietor of Sky Corporation] bank account with Central Bank, Rajkot was frozen upon directions by Principal Commissioner of Central GST, Mumbai South, however, the said communication was quashed and set aside by the Gujarat High Court on 27.01.2021 - Immediately thereafter, the Principal Commissioner of Central GST, Mumbai South, issued another notice dated 03.02.2021 to the branch Manager, Central Bank, Rajkot under section 79(1)(c) of the Act, 2017 calling upon the said authority to pay a sum of Rs.47,25,000/- from the account of M/s. Sky Corporation alleging that the said amount is due or may become due to the petitioner who is alleged to be involved in fraudulent refund claim.
Held: Petitioner submits that M/s. Sky Corporation of which petitioner is the proprietor is not subjected to any investigation till date - There shall be stay of the impugned notice dated 03.02.2021 - Notice issued - Stand over to 20.04.2021: High Court [para 3, 7]
-Stay granted : BOMBAY HIGH COURT
2021-TIOL-492-HC-P&H-GST
Skylark Infra Engineering Pvt Ltd Vs Additional Director General DGGI
GST - Petition has been filed challenging the provisional attachment of the bank account of the petitioner u/s 83 of the Act, 2017 - As per the impugned order, the account has been frozen in view of Section 74 of the said CGST Act - Precise contention of the petitioner is that the proceedings u/s 74 can be initiated only once notice under sub-Section (1) is issued and in the present case, no such notice has been issued even till today.
Held : Bench finds that sub-Section (7) clearly says that if the proper Officer comes to the conclusion that the amount voluntarily deposited by the assessee falls short of the amount actually payable, he shall proceed to issue the notice as provided under sub-Section (1) - Bench is left with the situation where till date no notice has been issued under sub-Section (1) of Section 74 - In the circumstances, this petition is allowed and impugned order attaching the bank accounts is set aside - It is, however, clarified that the revenue would be at liberty to take appropriate steps after initiating the proceedings in accordance with law: High Court [para 6, 12]
-Petition allowed : PUNJAB AND HARYANA HIGH COURT
2021-TIOL-488-HC-KAR-GST
Asiatic Clinical Research Pvt Ltd Vs UoI
GST - Petitioner has sought for issuance of writ of certiorari to quash the refund rejection orders - It is further submitted that the petitioner had paid IGST, but in light of his entitlement to claim refund on the ground of zero-rated supply, petitioner had sought for refund of the IGST paid by him under Section 54 of the Central Goods and Service Tax Act, 2017 - Respondent contends that personal hearing was fixed originally on 12.01.2021 and the petitioner ought to have availed of that opportunity and accordingly, the authority cannot be found to be in default as the impugned orders have considered in detail the submissions of the petitioner as made out in the reply to the show cause notices - Petitioner submits that respondent - Authority had issued a show cause notice at Annexure-C dated 30.10.2020 at 4.04 p.m. calling upon him to furnish reply within 15 days from the date of service of notice and the petitioner was directed to appear on 03.11.2020 at 4.03 p.m - An application for adjournment dated 03.11.2020 was also filed requesting for personal hearing. It is further submitted that without waiting for the period of 15 days as was made available to make out his reply to the show cause notice, refund application of the petitioner came to be rejected on 12.11.2020.
Held : Taking note that an opportunity of personal hearing was not availed, in the interest of justice, it would be appropriate if the petitioner is afforded an opportunity of personal hearing to substantiate the detailed replies made - Orders at Annexures-A and A1 are set aside - Petitioner to be present for availing of opportunity of personal hearing, when such an opportunity is granted - Petitioner submits that he would avail of the opportunity on the date that is fixed for hearing and would co-operate for expeditious disposal of the matter - Petitions disposed of: High Court [para 10, 11]
- Petitions disposed of : KARNATAKA HIGH COURT
2021-TIOL-487-HC-MUM-GST
Goods And Services Tax Practitioners Association Vs UoI
GST - Goods and Service Tax Practitioners' Association, Mumbai and its President as the petitioners have preferred the present writ petition under Articles 226 / 227 of the Constitution of India for a direction to the respondents to extend the periodicity of filing of annual returns in the State of Maharashtra until complete lock-down is lifted or until the Covid-19 pandemic situation improves completely; seek further direction to the respondents to extend periodicity of limitation of filing of annual returns for the year 2019-20 in the State of Maharashtra under section 44 of the Central Goods and Services Tax Act, 2017 read with Rule 80 of the Central Goods and Services Tax Rules, 2017 upto 30.06.2021.
Held: Bench is not inclined to accede to the prayer made by the petitioners that too at this eleventh hour - It is not that the time-limit has not been extended - The initial due date of 31.12.2020 has been extended to 28.02.2021 - That apart, on going through the relevant provisions of the CGST Act, more particularly the provision of section 47(2) thereof, Bench does not find that non-extension of the time-limit beyond 28.02.2021 would lead to any extinguishment of right - Bench finds from the written instructions dated 25.02.2021 that vide notification No. 77 of 2020 - Central Tax dated 15.10.2020 filing of annual return in the prescribed form for businesses with annual turnover upto Rs.2 crores has been made optional for the financial years 2017-18, 2018-19 and 2019- 20; and for businesses with annual turnover upto Rs.5 crores, filing of the prescribed form for the financial years 2018-19 and 2019-20 has been waived off vide notification No. 79/2020 - Central Tax dated 15.10.2020 - Bench also takes note of the fact that it is the professional body of GST practitioners who are before us and not any individual taxable person expressing any difficulty in adhering to the extended timeline of 28.02.2021 - Court is not inclined to entertain the writ petition, hence Writ petition is dismissed: High Court [para 11, 12]
- Petition dismissed : BOMBAY HIGH COURT
2021-TIOL-10-AAAR-GST
Fraunhofer Gesellschaft Zur Förderung Der Angewandten Forschung EV
(Dated: February 02, 2021)
GST - The Appellant herein is an organisation incorporated in Germany and is engaged in promoting applied research and development for the benefit of industry and society - The Appellant had established a Liasion Office in Bengaluru (also referred to as LO or Head Office or HO) which is an extended arm of the Head Office to carry out activities as permitted by the Reserve Bank of India - The Appellant had approached the AAR seeking to know whether the activities of a Liaison Office amount to supply of service & whether the LO is required to be registered under the CGST Act & whether the LO is liable to pay GST - The AAR held that the Liaison activities being undertaken by the appellant (Liaison Office - LO) in line with the conditions specified by RBI amounted to supply in terms of s.7(1)(c) of the CGST Act, 2017 - It was also held that the appellant was required to be registered under the Act and is liable to pay GST if the place of supply of services is India.
Held - The findings of the AAR are set aside, being incorrect: AAAR
+ The Appellant's Head office in Germany is no doubt a 'person' by virtue of clause (h) of Section 2(84) of the CGST Act. However, the liaison office is not recognised as a separate legal entity in India. Under the Companies Act, 2013 , every foreign entity establishing its place of business in India by way of a liaison office shall be treated as a foreign company as defined under Section 2(42) of the Companies Act, 2013. The liaison office is registered with the Registrar of Companies in the same name as the parent foreign company. It does not have a separate legal existence in law. The liaison office can at best be a geographical extension of the parent Company in Germany having the same legal identity as the parent company. As already mentioned earlier, the concept of related person arises only when there are two 'persons' in existence as per law. In this case, there is only one legal entity i.e the company in Germany and the liaison office in India is only an extension of the foreign company having no separate identity in India. We disagree with the findings of the lower authority that the liaison office is an 'artificial juridical person' and that the business conducted by it comes within the purview of the definition of business stated in Section 2(17) of the CGST Act. Artificial juridical persons are not natural persons but separate entities under law. As observed by us, the liaison office is not a separate entity under law. It is merely an extension of the parent company in Germany. When the liaison office is not a 'person' recognised as per law, the question of being a related person to the parent company does not arise. Thus,the finding of the lower Authority that the parent Company in Germany and the Appellant liaison office in India are deemed to be related persons is not correct. (Para 15)
+ Since the parent company in Germany and the Appellant in India cannot be treated as separate persons but as one legal entity, the liaison activity performed by the Appellant for the parent company is in the nature of a service rendered to self. A service rendered to oneself does not come within the purview of 'supply' under GST. Therefore, we hold that the activities of the Appellant as a liaison office does not amount to a supply of service. The activities of the liaison office are not a 'supply' under Section 7(1)(a) of the CGST Act and will also not be covered under the ambit of clause 2 of Schedule I of the said Act. (Para 16)
+ As regards the requirement of registration under GST, Section 22 of the CGST Act mandates that every supplier who makes a taxable supply of goods or services or both, whose aggregate turnover in a financial year exceeds Rs 20 lakhs is required to be registered in the State from where he makes the taxable supply. The term 'taxable supply' is defined in Section 2(108) of the CGST Act to mean a "supply of goods or services or both which is leviable to tax under this Act". We have already held that the activities of the liaison office do not amount to a 'supply' under GST. Hence, there is no taxable supply and there is no requirement for obtaining a GST registration or payment of GST. When the liaison office is not required to be registered under GST, the question of whether they are a distinct person or establishment of distinct person is irrelevant. (Para 17)
-Appeal allowed : AAAR
2021-TIOL-84-AAR-GST
Rachna Infrastructure Pvt Ltd
GST - The applicant-company is engaged in construction of State and National Highways, roads and bridges - The applicant is also engaged in mining of Black trap in the State of Gujarat - Such Black Trap is used for concrete aggregates and road metalling - Such Black Trap is classifiable under Heading 2517 and attracts GST @ 5% - The applicant holds mining lease subject to various terms and conditions - The applicant sells the mined Black Trap and also uses some for its own business - On every tonne of Black Trap dispatched, the applicant os required to pay royalty to the State of Gujarat for the right to use minerals - The applicant stated that in compliance to the said lease agreement they have paid annual dead rent or royalty as the case may be & that Gujarat Govt. has transferred its right to use Black Trap Minerals for commercial purpose for a period of 20 years against the payment of royalty or dead rent as the case may be by executing Lease deed with the applicant - The applicant stated that it is liable to pay royalty in respect of mining lease for the right to use minerals including its exploration and evaluation - Hence the applicant approached the AAR seeking to know the classification of the service provided by the State of Gujarat to the applicant, in accordance with Notfn No 11/2017-CT(R) - The applicant sought to know whether such service could be classified under item (iii) or item (viia) of Tariff Heading 9973.
Held - The activity undertaken by the applicant is classifiable under Heading 9973 (Leasing or rental services, with or without operator), as mentioned in the annexure at Serial No. 257 (Licensing services for the right to use minerals including its exploration and evaluation) sub-heading 997337 of Notification Number 11/2017-C.T. (Rate) - The Licensing services for the right to use minerals including its exploration and evaluation' which is classifiable under SAC 9973 37 will be covered under residual entry No. (viii) of the Notification No. 11/2017-(Rate) Central Tax - The activity undertaken by the applicant attracts 18% GST (9% CGST+ 9% SGST): AAR
-Application disposed of : AAR
2021-TIOL-83-AAR-GST
Swaminarayan Foods Pvt Ltd
GST - The applicant-company is engaged in manufacture & supply of Fryums & different types of Namkeen & Farsaan - The applicant stated that the items prepared from Maida are purchased as raw material in unfried form - These are then fried & variousd masala powders are applied - The snacks are then packed in small packets for sale - The applicant stated it to be settled position that Fryums are Pappad and since pappad is tax free/exempt as per tariff item 19059040, the Fryums manufactured and sold by the applicant would also be exempt from payment of any tax - Hence the applicant approached the AAR seeking to know whether any tax is payable in respect of sale of Fryums manufactured by the applicant & the rate of tax, if any is payable.
Held - The 'Fried Fryums' manufactured & supplied by applicant is classifiable under Tariff Item 2106 90 99 of the First Schedule to the Customs Tariff Act, 1975 - GST rate of 18% (CGST 9% + GGST 9% or IGST 18%) is applicable to the product 'Fried Fryums' as per Sl. No. 23 of Schedule III of Notification No. 1/2017-Central Tax (Rate) , dated 28-6-2017, as amended, issued under the CGST Act, 2017 and Notification No. 1/2017-State Tax (Rate) , dated 30-6-2017, as amended: AAR
-Application disposed of : AAR
