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2022-TIOL-777-HC-TRIPURA-GST
Progressive Enterprise Vs State of Tripura
GST - Consignor had sent the goods to the State of Tripura, however, due to various reasons including non-availability of land, etc. the consignor sought to take back the goods from Tripura to Guwahati - While the goods were being taken back from Tripura to Guwahati on a transport vehicle, on 26.04.2022 the Inspector of State Taxes, Churaibari inspected the vehicle and asked the driver to produce relevant documents - The driver is stated to have informed the Inspector that he is waiting for the fresh tax invoices and e-way bills for outward transportation of the telecommunication materials and that he had in his possession the e-way bill and the tax invoice under cover of which the goods had originally moved from Guwahati to Tripura - On 27.04.2022, a physical search was carried out and the vehicle and the goods were seized and Form MOV 7 was issued - On the same date i.e. on 27.04.2022, Reliance Jio Infocommunication Ltd. generated thirty numbers of e-way bills for the purpose of outward transportation of the aforesaid goods which were seized - Inspite of the new e-way bills provided by the driver, the authorities did not allow the goods to be moved and initiated proceedings, therefore, the present petition. Held: The moot question that arises is that once the driver of the vehicle produces a valid e-way bill, the authorities concerned are responsible to honour the same and if any fault is found therein, action can obviously be taken up under the statute - It was obligatory on part of the statutory authorities to go through the same and if the same was found in order, to permit the transport of the machinery and/or consignment concerned - Bench is of the considered view that Rule 138(10) of the Central Goods and Services Tax Rules, 2017 applies in the present case and in particular, second proviso thereof - The only lawful inference therefrom is that the said Rule has been complied with by the petitioner consequent to which fresh e-way bills were issued and produced before the authorities concerned - Accordingly, Bench finds no justification in further detention of the goods at the Churaibari check-post and directs release of the vehicle and the goods - Writ petition stands disposed of and any proceedings initiated against the petitioner shall stand quashed: High Court
- Petition disposed of: TRIPURA HIGH COURT
2022-TIOL-776-HC-MAD-GST
Sree Meenashi Industries Vs Addl. Chief Secretary/CCT
GST - Current accounts of the petitioners held with the bank have been frozen and no debit transaction is allowed till the provisional attachment ordered u/s 83 of the Act, 2017 is lifted by the Revenue authority - Therefore, the present petitions. Held: Simple language used in Section 83 of the TNGST Act may suggest that, if the Commissioner is of an opinion that, for the purpose of protecting the interest of the Government Revenue, he can invoke Section 83 of the TNGST Act and attach the property provisionally including the bank account of the assessee - However, the said content of Section 83 of the GST Act was interpreted by the Supreme Court in Radha Krishan's case - 2021-TIOL-179-SC-GST and wherein in the findings given by the Court against clause (iv) it is mentioned that, the power to order provisional attachment of the property of the taxable person including a bank account is draconian in nature; that therefore the conditions, which are prescribed by the statute for a valid exercise of the power must be strictly fulfilled; in clause (v), the Court says that, the exercise of the power for ordering a provisional tax attachment must be preceded by the formation of an opinion by the Commissioner that it is necessary so to do for the purpose of protecting the interest of the Government Revenue; that before ordering a provisional attachment, the Commissioner must form an opinion on the basis of tangible material, that the assessee is likely to defeat the demand, if any, and that therefore it is necessary so to do, for the purpose of protecting the interest of the Government Revenue - In clause (vii), the Court says that the formation of an opinion of the Commissioner under Section 83(1) must be based on the tangible material, bearing on the necessity of ordering a provisional attachment for the purpose of protecting the interest of the Government Revenue - In clause (x), the Court says that, the Commissioner is duty to bound to deal with the objection to the attachment by passing a reasoned order, which must be communicated to the taxable person, whose property is attached - Applying the aforementioned four clauses in the facts of the present case, the Bench, without hesitation, can come to a conclusion that the said criterion fixed by the Supreme Court has not been met in the present case by the Commissioner, who passed the order u/s 83 of the Act, 2017 - Commissioner has, in the impugned order, only mentioned that in order to protect the interest of the Revenue and in exercise of the powers conferred u/s 83, the account is provisionally attached - On what basis, the Commissioner has decided to invoke Section 83 to go for a provisional attachment before which, whether the Commissioner has formed an opinion to do so, before forming such opinion, what are all the tangible material available before him or placed before him, so as to enable him to form such an opinion, all these aspects have not been even indicated in the order of provisional attachment - All these things, if not exhaustively but at least to the limited extent, must have been indicated in the order itself, so that the assessee can have a prima facie satisfaction that at least the provision of the Act has not been violated as interpreted by the Supreme Court - This kind of exercise of power under Section 83, which is a draconian one, cannot be approved as it does not meet the requirement of fair play and strict adherence of the provisions of the Act as interpreted by the Supreme Court (supra) - In this case, the petitioners did approach the first respondent by filing an application / appeal / objection on 23.12.2021, which, for all practical purposes can be treated as an application / appeal within the meaning of Rule 159 (5) of the Rules, therefore, it cannot be stated that the petitioner without making an application u/r 159(5) has approached this Court and on that ground the writ petitions should be held as not maintainable - Order of provisional attachment made by the first respondent dated 20.12.2021, shall not stand the legal scrutiny, therefore, it is liable to be interfered with and accordingly, it is set aside - As a sequel, the consequential order, informing the petitioner by the respondent Bank authorities dated 30.12.2021 of the account having been frozen and no debits are allowed, is also set aside - Writ petitions are disposed of: High Court [para 28, 29, 30, 31, 35, 41]
- Petitions disposed of: MADRAS HIGH COURT
2022-TIOL-17-NAA-GST
Sri Laxmi Kala Mandir 70MM Theatre
GST - Anti-Profiteering - s.171 of the Act, 2017 - Applicant has alleged that the Respondent did not pass on the benefit of reduction in the GST rate on the “Services by way of admission to exhibition of cinematograph films where price of admission ticket was one hundred rupees or less”, from 18% to 12% w.e.f. 01.01.2019, vide Notification No. 27/2018-Central Tax (Rate) dated 31.12.2018, and had instead, increased the base prices of the movie tickets to maintain the same cum-tax selling prices as were in the pre-rate reduction period despite the reduction in the rate of tax - DGAP has reported that the allegation of profiteering by way of increasing the base prices of the admission tickets (Services) by way of not reducing the selling prices of the admission tickets (Services) commensurately, despite the rate reduction in GST rate on supply of “Services by way of admission to exhibition of cinematography films where price of admission ticket was one hundred rupees or less” from 18% to 12% w.e.f. 01.01.2019, appeared to be correct; that the total amount of profiteering during the period 01.01.2019 to 30.09.2019, was Rs. 1,31,754/-; that the recipients of the services were not identifiable; that the provisions of s.171(1) of the Act, 2017 have been contravened by the respondent - Authority agrees with the findings of the DGAP inasmuch as the respondent had not passed on the benefit amounting to Rs. 1,31,754 (inclusive of GST) to his customers/recipients and thus profiteered in respect of the supplies made - Authority directs the Respondent to deposit within three months the profiteered amount of Rs. 1,31,754/- along with the interest to be calculated @ 18% from the date when the above amount was collected by him from the recipients till the above amount is deposited, in two equal parts, in the Central Consumer Welfare Fund (CWF) and the Telangana State CWF as per provisions of Section 171 (1) read with Rule 133 (3) (c) of the CGST Rules 2017 - Since no penalty provisions were in existence during the material period 01.01.2019 to 30.09.2019, penalty cannot be imposed u/s 171(3A) which came into force on 01.01.2020 - Compliance report to be submitted by CGST/SGST Commissioner within four months - Order passed by NAA falls within the limitation prescribed under rule 133(1) of the Rules, 2017 in view of the orders dated 23.03.2020, 10.01.2022 passed by the Apex Court on the aspect of limitation: NAA
- Application disposed of: NAPA
2022-TIOL-16-NAA-GST
Jay Ambe Developers
GST - Anti-Profiteering - S.171 of the CGST Act, 2017 - Applicant alleges profiteering in respect of construction service supplied by respondent - Applicant submits that the respondent had not passed on the benefit of ITC to him by way of commensurate reduction in the prices - DGAP in his report dated 25.03.2021 concluded that the benefit of additional ITC to the tune of 1.85% of the turnover, which has accrued to the Respondent post-GST was required to be passed on by the Respondent to his recipients; that Section 171 of the CGST Act, 2017 appeared to have been contravened by the Respondent, inasmuch as the additional benefit of ITC @1.85% of the base prices received by the Respondent during the period 01.07.2017 to 31.03.2019, had not been passed on by him to the Applicant No. 1 and other 7 recipients who are identifiable; that the Respondent had realised an additional amount to the tune of Rs. 4,31,473/- which had not been passed on to the Applicant No. 1 and other recipients; that the present investigation covered the period from 01.07.2017 to 31.03.2019 only as the Respondent had opted for a new scheme issued vide Notification 03/2019-Central Tax (Rate) dated 29.03.2019 and in terms of which the Respondent was required to pay Tax/GST @ 5% without taking/availing the benefit of ITC; that, therefore, Section 171 of CGST Act, 2017 was not attracted from 01.04.2019 - Respondent vide email dated 14.04.2022 has submitted that he has returned the profiteered amount of Rs. 4,31,473/- along with interest @ 18% thereon amounting to Rs. 3,31,544/- to the respective homebuyers/customers and documentary evidence to the said effect was enclosed - Applicant has also confirmed receipt of the amount and interest due in respect of supply made to him by the respondent - Authority agrees with the report of the DGAP and also notes that the respondent has submitted evidence that they have now passed on the profiteered amount to the homebuyers - Jurisdictional CGST/SGST Commissioner are directed to carry out the verification process of the respondent's claim - Though the period of investigation was 01.07.2017 to 30.09.2020, however, the amount profiteered relates to the period from 1.07.2017 to 31.03.2019 only, as the Respondent had not profiteered after such date on account of the option exercised by him, under the Scheme issued vide Notification No. 03/2019-Central Tax (Rate) - Therefore, the penal provisions under Section 171 (3A) which are effective from 01.01.2020 are not applicable in this case as they cannot be made applicable retrospectively - Order passed by NAA falls within the limitation prescribed under rule 133(1) of the Rules, 2017 in view of the orders dated 23.03.2020, 10.01.2022 passed by the Apex Court on the aspect of limitation: NAA
- Application disposed of: NAPA |
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