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2022-TIOL-464-HC-GUW-GST
Veteran Facility Management Services Pvt Ltd Vs UoI
GST - A stand is taken that the petitioner was providing security services to the outlets of the AIRCEL under a contract agreement but as because AIRCEL itself were out of business, a huge amount of payment is due to the petitioner and because of such loss in business, the petitioner could not pay the required GST dues to the department on time - As the required tax amount of Rs.2,25,09,077/- for the period of April, 2018 upto September, 2021 along with applicable interest and penalty had not been paid, the order of cancellation of registration dated 30.12.2020 was issued by the Superintendent, Guwahati-C-5 as per the provisions of Section 29 of the CGST Act, 2017 - Application for revocation of registration was also rejected, hence the present petition - Petitioner firm express their willingness to pay the defaulted tax amount plus the interest and the penalty but because of the precarious financial condition they are unable to pay it in one go and, therefore, makes a request that the petitioner be allowed to make the necessary payments in 48 instalments.
Held: As per Circular No. 996/3/2015-CX dated 28.02.2015, Commissioner of GST is empowered and has the discretion of granting sanction to pay arrear of the GST in instalments upto maximum of 24 monthly instalments and the Chief Commissioners are given the jurisdiction and authority to sanction the payment of the arrears in monthly instalments greater than 24 upto a maximum of 36 - Although there may be an inherent power of the Court under Article 226 of the Constitution of India to use a discretion but at the same time when it is statutorily provided by the dep
artmental authorities that the maximum permissible instalments be 36, Bench is of the view that the Court ought not to randomly extend such instalments beyond 36 in the guise of exercising discretionary power but at the same time, Bench also takes note that if further instalments are not allowed to the petitioner firm, they would be unable to pay the tax due and it may result in a sustenance of the order of cancellation of their registration; there would be an end of their business in the present form that they are undertaking and it would also be the end of the Department to have any tax from the petitioners in the form of the present business any further - In order to provide some succour to the petitioner firm so that they can remain in the business they are presently undertaking the amount payable be equally divided by 48 and the monthly amount payable by the petitioner firm be determined and communicated to the petitioner - If the petitioner firm do not comply with the requirement of paying the determined monthly instalment within the 7th of every month, the earlier order of cancellation of registration may be revived by the department without any further reference - Writ petition stands disposed subject to the conditions stated: High Court [para 6, 8, 10, 11]
- Petition disposed of: GAUHATI HIGH COURT
2022-TIOL-463-HC-ALL-GST
Calcutta South Transport Company Vs State of UP
GST - Petitioner seeks an order in the nature of mandamus commanding the respondent no.2 to release the vehicle detained by the order dated 14.10.2020. Held: Once the order of confiscation dated 29.11.2020 and the order of first appellate authority dated 28.06.2021 were quashed by this Court by judgment dated 15.11.2021, the order of confiscation stood eclipsed from the very date of issuance - About 18 months have passed since the detention of the aforesaid truck without any valid order for confiscation or any proceeding of confiscation in existence, yet, the truck in question is being detained by the respondent no.2 arbitrarily, illegally and unauthorisedly, resulting in harassment of the petitioner - It is settled law that if a public functionary acts maliciously or oppressively and the exercise of power results in harassment and agony, then it is not an exercise of power but its abuse - No law provides protection against it - Harassment by public authorities is socially abhorring and legally impermissible which causes more serious injury to society - In modern society no authority can arrogate to itself the power to act in a manner which is arbitrary - It is unfortunate that matters which require immediate attention for compliance of order of this Court, linger on leaving the petitioner to run from one end to other with no result - Therefore, award of compensation for unauthorised, arbitrary and illegal detention of the truck of the petitioner by the respondent authorities would not only compensate the petitioner for loss suffered by him but it would also help in improving work culture and public confidence in rule of law - Since determination of loss due to arbitrary, illegal and unauthorised detention by the respondent no.2, is a question of fact, therefore, Bench directs the Commissioner of Commercial Tax, U.P., Lucknow to determine the financial loss of the petitioner in respect of the truck in question, within three weeks and pay it to the petitioner within next one week through account payee bank draft - For grossly arbitrary, illegal and unauthorised action of the respondent no.2 to detain the truck in question even despite the judgment of this Court dated 15.11.2021, Bench imposes cost of Rs. 5000/- upon the respondents - Writ Petition is allowed: High Court [para 9, 10, 12, 14]
- Petition allowed: ALLHABAD HIGH COURT
2022-TIOL-462-HC-ALL-GST
A S Enterprise Vs Commissioner of State Tax UP
GST - While the goods were in transit from Ludhiana in the State of Punjab to Gwalior through the State of Uttar Pradesh, the same was stopped for checking by Mobile Squad Authority in the State of U.P. on 01.08.2021 - Owing to inadvertence of the driver of the truck, the entire documents remained from being produced at the time of the physical verification carried out - However, immediately thereafter, the driver of the truck realised his mistake and produced the remaining documents before the detaining authority which request was declined - In response to the SCN dated 04.08.2021, petitioner produced the entire set of documents being original invoices to establish that the goods in question were covered by regular tax invoice with respect to transaction on inter-state sale on which IGST had been paid - Treating the explanation as an afterthought, tax and penalty had been demanded and confiscation made - Petition has been filed against the order passed by the first appellate authority. Held: No enquiry appears to have been made from the revenue authorities in the State of Punjab to confirm if the transactions were genuine - It is also not the case of the revenue that the goods found transported were different from the goods disclosed in the tax invoices produced by the petitioner - No enquiry was conducted by the respondent authorities either from the purchasing dealers or the Assessing Authority to doubt the transaction at the end of the consignee - In view of the above lack of enquiry and lack of reasonable doubt, the continued seizure and confiscation as also the demand of tax and penalty is based solely on presumptions and conjectures - Evidence produced by the petitioner being undoubted, the seizure and confiscation and consequent demand of tax and penalty is based on no cogent material and evidence - Though the detention did not suffer from any illegality, however, the further orders of the seizure etc. are found to be not based on any material or evidence on record - Impugned orders are set aside and goods and vehicle are directed to be released forthwith: HC [para 6 to 8]
- Petition allowed: ALLAHABAD HIGH COURT |
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