2022-TIOL-958-HC-JHARKHAND-GST
Juhi Industries Pvt Ltd Vs State of Jharkhand
GST - Rule 142(1)(a) of the JGST Rules provides that the summary of show cause notice in Form DRC-01 should be issued "along with" the show cause notice under Section 74(1). The word "along with" clearly indicates that in a given case, show cause notice as well as summary thereof both have to be issued - As per Rule 142(1)(a) of the JGST Rules, the summary of show cause notice has to be issued electronically to keep track of the proceeding initiated against the registered persona whereas a show cause notice need not necessarily be issued electronically – in the case of M/s NKAS Services Pvt. Ltd. = 2021-TIOL-2079-HC-JHARKHAND-GST note was taken of the said position of law and it has been categorically held that Summary of Show Cause Notice in Form DRC-01 is not a substitute of show cause notice under Section 74(1) - Foundation of the proceeding in both the cases suffers from material irregularity and hence not sustainable being contrary to Section 74(1) of the JGST Act; thus, the subsequent proceedings/impugned Orders cannot sanctify the same - Though the petitioner submitted their concise reply vide letter dated 11-10-2018, the respondent State cannot take benefit of the said action as summary of show cause notice cannot be considered as a show cause notice as mandated under Section 74(1) of the Act - It is well settled that there is no estoppel against statute - A bonafide mistake or consent by the assessee cannot confer any jurisdiction upon the proper officer - The jurisdiction must flow from the statute itself - The rules of estoppel is rule of equity which has no role in matters of taxation - Summary of show-cause notices issued in Form GST DRC-01, the orders issued under section 74(9) of JGST Act and also the final orders passed after rectification are quashed and set aside - Writ applications stand allowed: High Court [para 7, 8, 9, 11]
- Petitions allowed: JHARKHAND HIGH COURT
2022-TIOL-957-HC-ORISSA-GST
Atlas Pvc Pipes Ltd Vs State of Odisha
GST - Petitioner has filed this writ application with a prayer to set aside the impugned order and sought for a direction to the Appellate Authority (opposite party No.2) to entertain the appeal on merit - Petitioner received notice dated 13.05.2022 [served on 20.05.2022] wherein it was indicated that the tax payer-Appellant was required to submit the certified copies within seven days of filing of the appeal, on or before 21.05.2022 - Petitioner applied and received copy on 21.05.2022 - Although the Petitioner offered to submit the certified copy on 23.05.2022, (22 nd being Sunday) the Opposite Party No.2 refused to receive the same on the plea that he had already passed the order of rejection of appeal and uploaded the same in the GST portal on 23.05.2022.
Held: Court finds that Rule 108(3) has not prescribed for condonation of delay in the event where the Petitioner would fail to submit certified copy of the order impugned in the appeal nor is there any provision restricting application of Section 5 of the Limitation Act, 1963, in the context of supply of certified copy within period stipulated in sub-rule (3) ibid - The requirement to furnish certified copy of the impugned order within seven days of filing of appeal is provided as a procedural requirement - On the altar of default, in compliance of such a procedural requirement, merit of the matter in appeal should not have been sacrificed - Since the Petitioner has enclosed the copy of impugned order as made available to it in the GST portal while filing the Memo of Appeal, non-submission of certified copy, as has rightly been conceded by the Additional Standing Counsel appearing on behalf of CT&GST Organisation, is to be treated as mere technical defect - Keeping in view inter alia executive instruction/clarification during the COVID-19 pandemic, it is apt to say that the Appellate Authority has not exercised its power in proper perspective and the Petitioner cannot be said to be indolent, rather he it has pursued its matter diligently - Impugned order is set aside and matter restored to the file of the Appellate authority - Petition disposed of [para 6.11 to 6.14, 7]
- Petition disposed of: ORISSA HIGH COURT
2022-TIOL-956-HC-KOL-GST
Paras Pan Products Pvt Ltd Vs Asstt. Commissioner State Tax
GST - Intra court appeal filed against order of Single Judge directing that affidavit-in-opposition be filed and, thereafter, the matter to be heard - Petitioner were aggrieved by an assessment order passed under Section 74 (9) of the WBGST Act, 2017 dated 12th October 2020 and had filed an appeal by pre-depositing ten per cent of the disputed tax but their appeal was rejected by the Senior Joint Commissioner of State Tax - The appellants would contend that before the assessment order dated 12th October 2020 was passed, no opportunity was granted to the appellants and there has been violation of principles of natural justice and more particularly when the date of hearing fixed by the assessing officer was on 18th September 2020 and at that point of time, the appellants' factory was not working and it was during the COVID pandemic period.
Held : Considering the peculiar facts and circumstances of the case, Bench is of the view that one more opportunity can be granted to the appellants, more particularly, when the appellants had already deposited 10 per cent of the disputed tax while preferring the appeal - Order is not to be treated as a precedence - Order passed in the appeal dated 11th February 2022 stands set aside - The pre-deposited tax made by the appellants being 10 per cent of the disputed tax shall remain in deposition and shall abide by the interim orders passed by the assessing officer - Petition disposed of: High Court
- Petition disposed of: CALCUTTA HIGH COURT |
