2021-TIOL-866-HC-MAD-GST

Sr.Intelligence Officer DG of GST Intelligence Vs KPN Travels India Ltd

GST - Revenue is in appeal against the order of the Single Judge lifting the attachment order of the bank accounts.

Held:

++ Prayer sought for in the writ petition was only to quash the summons and there was no consequential relief sought for in the writ petition and the order of provisional attachment made by the respondent was not put to challenge in the writ petition. [para 7]

++ The summons, which has been issued under Section 70 of the CGST Act, cannot be construed as a notice affording an opportunity of hearing to the first respondent, in terms of Sub-Rule 5 of Rule 159 of the CGST Rules. The summons is in connection with the investigation initiated against the first respondent. Therefore, the appellant cannot take umbrage under the summons, dated 27.01.2021 to be construed as a notice under Rule 159(5). [para 10]

++ An order of attachment of the first respondent's bank account, which are stated to be 14 in number, should be for the purpose of protecting the interest of the Government Revenue and the Commissioner should be of the opinion, it is for such purposes and he is required to pass an order in writing attaching provisionally any property including bank account. Thus, if the first respondent is able to explain to the satisfaction of the officer that the provisional attachment is not warranted, it goes without saying that the Commissioner can exercise powers and lift the order of provisional attachment or otherwise confirm the provisional attachment. Admittedly, the investigation is yet to be completed and, therefore, time is yet to come for issuance of show cause notice for recovery of alleged tax due or for that matter to crystallize the alleged liability. [para 12]

++ The first respondent is a business organisation engaged in operating buses and in logistic services, which is undoubtedly an employee driven industry requiring a large work force. Therefore, the business interest of the first respondent also needs to be taken into consideration while considering as to whether all 14 bank accounts are required to be provisionally attached. In fact, from the chain of events, Bench finds that the first respondent has not extended cooperation in the investigation, which is not appreciable. [para 13]

++ Respondent would submit that by attaching all 14 bank accounts, the business operations of the first respondent have been absolutely crippled and they are unable to pay salaries, discharge creditors, etc. [para 15]

++ Impugned order dated 10.03.2021 shall remain stayed subject to the following directions:

(a) the authorized representative of the first respondent shall appear before the first respondent at 11.00 AM on 29.03.2021.

(b) an opportunity of personal hearing be granted to the authorized representative.

(c) the first appellant is directed to pass a speaking order within 10 days therefrom.

(d) since the first respondent has pleaded that their business operations are virtually crippled, till final orders are passed on the representation dated 27.01.2021, the first appellant shall consider and pass appropriate interim orders, if found tenable, considering the lifting of the provisional attachment in respect of a few bank accounts to enable the first respondent to carry on its business activities. [para 16]

- Writ appeal partly allowed: MADRAS HIGH COURT

2021-TIOL-858-HC-MAD-VAT

Atlas Export Enterprises Vs Assistant Commissioner

Whether it is always open to an assessee to forego a benefit granted under law - YES: HC

Whether only if a constitutionally guaranteed fundamental right is at stake, the same cannot be waived - YES: HC

- Assessee's writ petition dismissed : MADRAS HIGH COURT

2021-TIOL-865-HC-MAD-CUS

Hindustan Unilever Ltd Vs UoI

Cus /GST - Amendment of GSTIN details in the Bills of Entry - Petitioner challenges orders rejecting the request of the petitioner for amendment of bills of entry in terms of Section 149 of the Customs Act, 1962 - Tax credit under the Integrated Goods and Service Tax Act, 2017 is availed by an importer based on the B/E filed and in relation to the GSTIN number mentioned in that B/E - With the onset of GST, the GSTIN number was specifically required to facilitate a seamless flow of IGST and it was proposed that the Customs Electronic System Data Interchange System would be integrated with the Indian Customs and Central Excise Electronic Commerce/Electronic Data Interchange Gateway (ICEGATE) - Failure of this integration would result in mismatch between GSTIN numbers leading to a disastrous collapse of the import-export system as well as untold hardship even in the case of bona fide mistakes in mentioning of GSTIN numbers or other data in the documentation filed - The present petitioner claims to be a victim of such failure - In the light of the errors that have transpired and apprehension that the credit to which it was entitled would be questioned and not granted, the petitioner requested the 2nd respondent/the Central Board of Indirect Taxes and Customs to rectify the procedure involved, as according to it, such errors had their genesis in the format of the documentation provided by the authorities - This, however, did not have the desired result - A formal application for amendment was filed under Section 149 of the Act - This request was rejected by the respondent justifying the rejection on the ground that it was part of a safeguard mechanism put in place to secure the integrity of transactions and it was for this reason that no manual alterations or rectifications could be effected by the Officer.

Held:

++ Only two legal questions arise for resolution ( i ) whether the provisions of Section 149 of the Act support the request of the petitioner for amendment of the B/E; (ii) whether the limitation of the technology available at the end of the respondent can stand in the way of the petitioner obtaining substantial relief. [para 10]

++ Spirit and intent of Section 149 is to facilitate the correction of error where the importer is in a position to establish that such error was inadvertent and bonafide. [para 12]

++ To say that the goods have already been cleared for home consumption and thus no amendment may be made, would fall in the face of the proviso to Section 149 which imposes a condition to be satisfied by an importer if he requests amendment after the goods have been cleared. The imposition of the condition itself means that a request for amendment may certainly be considered, subject to satisfaction of the condition imposed.

++ The phrase 'on record' would mean any documents that were available with the petitioner that were contemporaneous with imports must also be taken into consideration, to decide the question of existence of error. The Assessing Authority cannot restrict examination only to documents that are available on record. This issue thus stands answered in favour of the petitioner. [para 13]

++ The purpose of transition to the goods and services tax regime is to facilitate the conduct of transactions pan India and all consequences thereof including the seamless availment of credit. The robustness of the information technology system is critical to this venture. It is thus incumbent upon the authorities to ensure that technology is kept up to date in order to facilitate a seamless exchange of data. The impugned order states that ICEA System is limited in its operation and cannot permit any changes once the goods have left for home consumption. This is clearly erroneous even in the context of the 1962 Act that envisages amendments to be made even after goods have been cleared. The operation of the 2017 Act cannot go back to the Jurassic age denying an assessee relief that it would have obtained under the earlier enactment. Measures must be put in place for this purpose and till such time this is done, amendment of documents must be considered manually. [para 14]

++ The petitioner succeeds and must be permitted to place all records that it has in its possession to prove its plea in regard to the erroneous mention of the GSTIN numbers in the B/E. [para 15]

++ Impugned orders are set aside. The petitioner is permitted to approach the Assessing Authority i.e. R5, seeking amendment of the B/E, which request shall be considered by the Officer and orders passed after hearing the petitioner within a period of four weeks. [para 16]

++ SCN dated 01.02.2021 issued by the Authorities for reversal of credit is to be kept in abeyance till such time the exercise as above is carried out and revived based on the outcome of the aforesaid exercise.

- Petitions allowed: MADRAS HIGH COURT

2021-TIOL-854-HC-MAD-CUS

T Giridhar Vs Pr.CIT

Cus - The petitioner has sought a Mandamus forbearing the respondents as well as the Regional Manager of MSTC Limited from auctioning and selling the property along with undivided share of land belonging to the petitioner and his wife, sought to be auctioned under proclamation of sale dated 12.03.2021 - After hearing the concerned parties, an order has been passed on 29.03.2021, a copy of which is placed before this court - The aforesaid order is to the effect that 50% of property does vests with the petitioner and his wife and the auction proposed is only in regard to the remaining portion that vests with the petitioner's brother and his wife - With this, the Mandamus sought for is achieved and the writ petition is disposed recording the aforesaid submissions and confirmation of respondents: HC

- Writ petition disposed of :MADRAS HIGH COURT