I-T - Re-assessment proceedings are invalidated where based solely on statements subsequently retracted: HC

I-T - Writ court's intervention cannot be sought for in respect of factual issue which can be considered by appellate authority : HC

I-T - Past provisions would not continue to apply after substitution for assessment periods prior to substitution: HC

I-T - Time barred reopening notice issued without following procedure contained u/s 148A, would not be revived by virtue of application of Section 149(1)(b): HC

GST - Granting of anticipatory bail does not arise for an offence which is bailable u/s 132 of the Act, 2017: HC

GST - If goods were not accompanied by proper documents, it is only the authorities under GST Act, 2017 who are empowered to take action - Police has no authority - FIR is malicious and grave abuse of power - exemplary cost to be imposed: HC

GST - Rule 86A - Insertion of negative balance in the electronic credit ledger would be wholly without jurisdiction and illegal: HC

ST - Without presenting the cheque, merely collecting bank details on date of closure of scheme, it cannot be concluded that appellant has not paid tax dues in accordance with law: CESTAT

2022-TIOL-392-HC-ALL-GST

VK Traders Vs UoI

GST - Applicants seek anticipatory bail u/s 438 of the CrPC, 1973 - A pplicants state that the dispute in the present matter relates to an amount of  Rs.1,80,86,343/- which is stated to be prima facie availed by M/s V.K. Traders, the applicant no. 1 (proprietorship firm of which the applicant no. 2 is the sole proprietor)  as an inadmissible Input Tax Credit (ITC); that since the tax evasion is less than Rs.5 crores, the offence remain bailable.

Held:  The conditions prerequisite for the court's exercise of its discretion under Section 438 Cr.P.C. is that the person seeking such relief must have a reasonable apprehension of his arrest on an accusation of having committed a non-bailable offence; that is, that an application under Section 438 Cr.P.C. is only maintainable by a person who has apprehension of his arrest on accusation of having committed a non-bailable offence - In the present case, it is a common ground between the applicants and the opposite party No. 3 that the offences are bailable - Resultantly, the question is being answered by holding that granting of anticipatory bail does not arise for an offence which is bailable and a direction for the same can be issued only in respect of non-bailable and cognizable offences, the present anticipatory bail application deserves rejection and, accordingly, it is rejected - Interim order dated 02.03.2022 is vacated: High Court  [para 15, 16, 19, 20]

- Applications rejected: ALLAHABAD HIGH COURT

2022-TIOL-391-HC-ALL-GST

Vishal Gupta Vs State of UP

GST -   Petitioner is filed praying for a  a writ order or direction in the nature of certiorari quashing the first information report dated 20.02.2021 registered under section 420, 188 I.P.C. & section 63 of the Copyright Act; to issue a writ order or direction commanding the respondent authority concerned to not adopt any coercive measures against the petitioners in the above mentioned case - As per allegations in the impugned first information report, the petitioner was carrying 8 bundles of betel-nuts and tobacco and on being asked by the Police Sub Inspector, the petitioner could not show valid papers relating to transportation of betel-nuts and tobacco and for that reason the impugned first information report has been registered. Held:  None of the ingredients of cheating, as defined under Section 415 is reflected from the impugned first information report - That apart, the basic requirement of presence of two persons is also absent - Since the alleged act does not prima facie fall within the meaning of word "cheating", consequently no case is made out under Section 420 I.P.C - Insofar as invoking Section 188 I.P.C. is concerned, the same relates to disobedience of the order promulgated by a public servant - As there is no allegation in the impugned first information report that the petitioner has disobeyed the order promulgated by a public servant, prima facie no offence is made out under Section 420/188 I.P.C  - Moreover,  mere alleged failure to show the invoices to the informant Sub Inspector at the time of interception of the vehicle and without presence of any of the ingredients of an offence under Section 63 of the Copy Right Act, the allegation of commission of offence under Section 63 is prima facie not made out - FIR appears to be malicious and grave abuse of power by the informant Sub Inspector i.e. respondent no. 3 - If the goods were not accompanied by proper documents for transportation, it is only the authorities under the U.P. Goods and Service Tax Act, 2017 /Central Goods and Service Tax Act, 2017 , as the case may be, are empowered to check and take action in accordance with law, as provided under the relevant Acts and Rules - But the police has no authority to check invoices etc. and accounting the goods during transportation - The impugned first information report, on the very face of it, prima facie , reflects ill intention of the informant and obstruction in free flow of trade and commerce - Counter affidavit is to be filed by the respondents by means of a personal affidavit of Superintendent of Police, Jalaun - Respondents shall also show cause that in the event the FIR is found to be malicious and abuse of power, then why exemplary cost may not be imposed on the respondent no. 3 to be recovered from his personal assets - Case to be put up on 18th August - As an interim measure, it is provided that till the next date fixed, the petitioner shall not be arrested pursuant to the impugned first information report: High Court

- Interim order passed: ALLAHABAD HIGH COURT

2022-TIOL-390-HC-AHM-GST

Milap Scrap Traders Vs State/CTO

GST - Petitioner seeks an order or direction in the nature of mandamus directing the respondent to unblock the ITC amounting to Rs.7,68,554/- of CGST and Rs.7,68,549/- of SGST. Held : Principal issue involved in the present writ application is no longer res integra in view of the recent pronouncement in the case of Samay Alloys India Pvt. Ltd. - 2022-TIOL-246-HC-AHM-GST wherein it is inter alia held that the condition precedent is that the input tax credit should be available in the electronic credit ledger before the power under Rule 86-A is invoked by the authority; that it is not in dispute that the amount of input tax credit available in the electronic credit ledger as on the date of blocking of ledger was Nil, therefore, if no input tax credit was available in the ledger, the blocking of electronic credit ledger under Rule 86-A of the Rules and insertion of negative balance in the ledger would be wholly without jurisdiction and illegal; that Rule 86A is not the rule which entitles the proper officer to make debit entries in the electronic credit ledger of the registered person - Directed, therefore, that the respondents withdraw the negative block of the electronic credit ledger [of Rs.14,11,678/-] at the earliest - That whatever balance remained in the electronic credit ledger after the removal of the balance to negative figure, the same shall not be utilized by the writ applicant till the show cause notice is issued, if any, under Section 73 or 74 respectively of the C.G.S.T. Act - Once the negative block is removed, the writ applicant shall proceed to file his returns with appropriate tax, penalty and interest, that may be determined in accordance with law - Writ application stands disposed of: High Court [para 2, 5]

- Application disposed of: GUJARAT HIGH COURT

2022-TIOL-232-CESTAT-MAD

Sakthi Sugars Ltd Vs CGST & CE

CX - Appellant is engaged in manufacture of sugar and also availing facility of cenvat credit on inputs, capital goods and inputs services - The issue to be decided is, whether the appellant is liable to pay 6%/7% of value of Bagasse sold by them for consideration - The Supreme Court in case of DSCL Sugar Ltd. 2015-TIOL-240-SC-CX had an occasion to consider the very same issue wherein it has been held that Bagasse is not excisable as there is no manufacturing process involved and that Rule 6 of CCR, 2004 is not applicable - Following the same, the demand cannot sustain - Impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

2022-TIOL-231-CESTAT-BANG

Kerala Ex-Servicemen Welfare Association Vs CCT & CE

ST - Assessee filed a refund application consequent to order of Bench, wherein, this Bench had remitted the matter back to adjudicating authority to reconsider the issue afresh including the law laid down by High Court in case of Geojit BNP Paribas Financial Services Ltd. 2015-TIOL-1602-HC-KERALA-ST - In a subsequent decision in case of Uniroyal Marine Exports Ltd. 2020-TIOL-1996-HC-KERALA-ST , the Kerala High Court has held that once the amounts have been refunded to assessee as per the order of original authority, Revenue would have to recover the amounts from assessee, which cannot be treated as tax due and hence, Court has held that though the question of law was answered in favour of Revenue but Revenue was incapable of recovery of amounts refunded as tax due - Thus, the Court put a restraint on Revenue from recovering the amounts refunded which decision is squarely applicable to the present case - Going by the ratio in said case, it is held that even if Revenue is correct, but still, the recovery cannot be made - In the case of M/s. Way2wealth Brokers Pvt. Ltd. 2021-TIOL-1969-HC-KAR-ST , the High Court had an occasion to consider a similar dispute and after considering its own earlier decision in case of KVR Construction 2010-TIOL-980 -HC-KAR-ST - In view of said decision, action of adjudicating authority in sanctioning refund is held to be in order - Commissioner (A) has erred in his impugned order by setting aside the sanction of refund which is contrary to decision in M/s. Way2wealth and which is also not recoverable, as held in Uniroyal Marine and therefore, impugned order is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

2022-TIOL-230-CESTAT-MAD

Sea Queen Shipping Services Pvt Ltd Vs CGST & CE

ST - Appeal is filed against the order passed by lower authority rejecting the application filed under VCES, 2013 on the ground that appellant has not paid 50% of declared tax dues on or before the last date i.e. 31.12.2013 - Appellant has filed the declaration along with the demand draft and cheque on the last date of scheme - In appeal paper book, letter accompanied with documents is furnished by appellant - In the said letter, he has stated the serial number of demand draft as well as the cheque - However, he has not specifically mentioned that the number 000416 pertains to cheque - This is the reason why the lower authority has discussed that appellant tried to present the cheque in guise of demand draft - Though the appellant specified the number of demand draft as well as the cheque, he had not specifically stated that 000416 pertains to cheque and not demand draft - Department has collected the bank details of appellant and found that there was no sufficient fund to honour the cheque on 31.12.2013 - On receiving the cheque, department ought to have presented the cheque and if the same is dishonored could have rejected the declaration as the payment of 50% dues was not made - Without presenting the cheque, merely collecting the bank details on date of closure of scheme, it cannot be concluded that appellant has not paid the tax dues in accordance with provisions of law - Applying the decision in case of Disha Securities and Manpower P. Ltd. 2016-TIOL-714-HC-DEL-ST , it is held that the rejection of declaration filed by appellant under VCES cannot sustain - The impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT