2022-TIOL-971-HC-DEL-GST
AG Enterprises Vs CGST
GST - Petitioner seeks setting aside of demand notice dated 14.06.2022 - Principal plea of the petitioner is that a show-cause notice (SCN) issued earlier i.e. SCN dated 08.02.2021, has already been adjudicated by the authority concerned - Inasmuch as via the adjudication order dated 12.05.2022, the refund claim lodged by the petitioner was rejected - Adjudicating authority concluded that the refund was founded on forged input tax credit ['ITC'] claim and the same had to be rejected - An appeal has been lodged against the adjudication order on 26.05.2022.
Held: It is clear that once the petitioner's refund claim was rejected on the ground that it was founded on forged ITC, the petitioner would be liable to pay tax, interest and perhaps also penalty, in the event the adjudication order is sustained - The fact that an appeal has been preferred by the petitioner, which is pending adjudication, persuades the Bench to hold that, at this stage, the impugned show-cause notice is premature - In the event the appeal were to be dismissed, it would then be open to the respondent/revenue to take recourse to Section 75 of the Act and the attendant rules - Impugned demand notice dated 14.06.2022 is set aside, with liberty to the respondent to trigger the process under Section 75 of the Act and the attendant rules, once clarity is attained with regard to the outcome of the pending appeal lodged by the petitioner - Petition disposed of: High Court [para 7, 7.1, 7.2, 8]
- Petition disposed of: DELHI HIGH COURT
2022-TIOL-970-HC-KOL-GST
Hanuman Ganga Hydroprojects Pvt Ltd Vs Joint Commissioner State Tax Authority
GST - Petition is directed against the order passed by the Joint Commissioner rejecting the appeal preferred against the adjudication order passed by the Assistant Commissioner - Petitioner had purchased a hydro mobile crane from M/s Action Construction Equipment Ltd. having its registered office in State of Haryana - In terms of the purchase order, the Hydraulic Mobile Crane was to be transported from Haryana and delivered to the petitioner at the East Sikkim site - While the said crane was being transported by road on the basis of E-Way bill dated September 25, 2021, the vehicle carrying the crane, which was parked at Fulbari bypass was intercepted by the office of the respondent no.2, i.e. the Assistant Commissioner, State Tax, Bureau of Investigation and the same was detained on the ground that the validity period of the said E-Way bill had expired - Alleging that the movement of the goods in question was in contravention of the provisions of rule 138(10) of the Rules, 2017, SCN was issued proposing imposing of tax and penalty - The outcome of these adjudication and appeal proceedings is the order impugned - Petitioner submits that the validity period of the E-Way bill dated September 25, 2021 expired only on October 3, 2021; that since October 3, 2021 was a Sunday and further instructions for extension of the validity period of the aforesaid E-Way bill could not be obtained immediately, the said vehicle was parked at Fulbari bypass when it was intercepted and detained by the office of the respondent no.2; that both the lower authorities had not returned any finding that the petitioner had any intention to evade tax; that the minor delay in extending the validity period of the E-way bill cannot saddle an assessee with liabilities.
Held: It is not in dispute that the Hydraulic Mobile Crane had to be transported from a distant place and the crane is a heavy machinery and also that the trailer on which the crane was transported was a very long one - It is further not in dispute that the said crane was being transported vide a valid E-Way bill though validity of the same stood expired some hours prior to the time of interception - It is not in dispute that the validity period of the E-Way bill stood expired on October 3, 2021 which was a Sunday - The driver of the vehicle as well as the person accompanying him may not be so well conversant with the modern information technology of making speedy communication with the parties - In the facts of the instant case, explanation offered by the petitioner may be considered to be a bonafide one as the petitioner cannot be said to benefitted in any way by the delay in transportation of the crane - Court is of the considered view that the same cannot be said to be a grave one for the purpose of holding the assessee liable to penalty as directed by the orders passed by the authorities under the said statute as it is not a case of tax evasion - In order to justify invocation of the power to impose penalty in terms of the said Act, it is necessary that such authority arrives at a definite finding that there was a deliberate and wilful attempt on the part of the assessee to evade tax or there is lack of bona fide - It is the admitted position that the petitioner has paid the amount of penalty levied by the adjudicating authority and the vehicle was also released thereafter - Orders passed by the appellate authority dated April 18, 2022 as well as the order passed by the adjudicating authority dated October 8, 2021 and consequential demand of tax and penalty are all set aside and quashed - The Assistant Commissioner, State Tax Authority, Commercial Taxes, Siliguri Circle, Siliguri being the respondent no.2 herein is directed to take necessary steps for refund of the amount of tax and penalty recovered from the petitioner and to refund the same forthwith but positively within a period of three weeks - Petition allowed: High Court [para 11, 13, 14, 17, 19, 20]
- Petition allowed: CALCUTTA HIGH COURT
2022-TIOL-969-HC-ORISSA-GST
JSW Steel Ltd Vs UoI
GST - Assailing the Order dated 28th March, 2022 passed by the Deputy Commissioner of State Tax, CT & GST Enforcement Unit, Barbil under Section 74 of the OGST Act/the CGST Act for the tax periods from April, 2020 to March, 2021, the Petitioner has filed writ petition. Held: On 17th May, 2022 when the writ petition was taken up for entertainment, it was cautioned to the counsel for the petitioner to opt for appellate remedy available under the statute; nonetheless, the counsel insisted for adjudication as to jurisdiction of the State of Odisha to raise demand on the nature of transaction involved in the present case - When this Court was not persuaded for grant of interim relief as sought for, the petitioner has approached the Supreme Court challenging the Order dated 17.05.2022 - But the petitioner-company now changed its stand/approach and sought to challenge the Order of Assessment passed under Section 74 of the OGST Act invoking statutory remedy - It, thus, appears from the conduct that the petitioner has been more interested in obtaining interim order rather than to settle issues on question of law, as contended to have been raised in the writ petition - Entire gamut of stance taken by the petitioner seems to be luxury litigation and calculated to overburden this Court by wasting valuable time of this Court - Writ petition stands dismissed as withdrawn and the Petitioner may pursue already filed appeal under the OGST Act/the CGST Act: High Court [para 9, 10]
- Petition dismissed: ORISSA HIGH COURT
