2022-TIOL-1003-HC-KAR-GST
DPJ Bidar Vs UoI
GST - Petitioners are concessionaires who have been entrusted with construction of road by respondent Karnataka Road Development Corporation Limited. - As a consideration for construction and maintenance of the roads for the contract period, the petitioners are paid certain amounts termed as 'annuity' by the respondent - In certain contracts where construction and maintenance of the roads has been out sourced to private persons consideration is paid by permitting the concessionaires/contractors to collect tolls from the vehicles plying on the road -100% exemption under Goods and Services Tax (for short 'GST') was granted towards collection of toll charges by way of notification No. 12/2017 dated 28.06.2017 - Subsequently, it was proposed that annuity, which was being paid by the highway authorities as a consideration to the concessionaires instead of permitting them to collect toll charges be also exempted from GST - Council in its 22 nd meeting held on 06.10.2017 decided to treat annuity at par with toll and to exempt from tax, service by way of access to a road or bridge on payment of annuity - Two notifications viz., notification No. 32/2017 and notification 33/2017 were issued on 13.10.2017 and the service by way of access to a road or a bridge on payment of annuity was also exempted - A clarification was sought from the Board as to whether the entire annuity paid to the concessionaries was exempt from GST or not, for which the GST Council in its minutes of the 43rd GST Council meeting held on 28.05.2021 clarified that the notification does not exempt annuity paid for construction of roads and based on the same, a Circular bearing No. 150/06/2021-GST dated 17.06.2021 was issued by respondent No. 5 - Aggrieved by the same, the petitioners have preferred the instant writ petitions.
Held: Though what is exempted is mentioned as service by way of access to a road or a bridge on payment of toll charges, the said toll charges is collected as consideration by the concessionaires towards construction and maintenance of the road - In short, the entire consideration for construction and maintenance of the road by concessionaires which is collected as toll charges is exempt from GST from 01.07.2017 and onwards -Annuity is paid to the concessionaires in lieu of toll charges - GST Council, in its 22nd meeting held on 06.10.2017 took note of the same and as entire toll charges were being exempted from GST had decided to recommend exemption of annuity also, which include the consideration received by concessionaires - Thereafter, for reasons best known to it, GST Council [43rd GST Council meeting held on 28.05.2021] has clarified that the annuity paid as deferred payment for construction of roads/highways was not exempted from GST - It is a settled proposition of law that a Circular which clarifies the notification cannot have the effect of overruling the notification - Deliberation of GST Council in its meeting held on 06.10.2017 and the notifications issued pursuant thereto clearly exempts the entire annuity being paid to the petitioners towards construction and maintenance of roads - It cannot be construed to have not exempted the annuity (deferred payments) towards construction of roads - The impugned circular [ No. 150/06/2021-GST dated 17.06.2021] has the effect of overriding the notifications bearing Nos. 32 and 33/2017 dated 13.10.2017 and has to be held as bad in law - Clarification issued is contrary to the said notifications - If respondent No. 1 is desirous of altering the same, it has to issue fresh notifications amending its earlier notifications - Circular dated 17.06.2021 is set aside and all actions pursuant to the said Circular is also set aside: High Court [para 9, 10, 12, 13, 14, 15]
- Petitions allowed: KARNATAKA HIGH COURT
2022-TIOL-1002-HC-AHM-GST
Dipen Champaklal Shah Vs State of Gujarat
GST - Petition filed against impugned order under section 130 of GST Act, 2017 whereby the goods which were carried by petitioner came to be confiscated by revenue - Petitioner contends that the goods in question were purchased from one M/s. Om Bana Enterprise and same was being transported - When goods were in transit, authorities intercepted the goods and confiscated them - It was submitted that entire exercise of powers under section 130 was without jurisdiction - While question raised by petitioner would require a detailed examination, it could be immediately noticed that impugned order came to be passed in a quick succession, that too without permitting the petitioner to file reply - The hot hurry on the part of authorities sacrificed the right of petitioner to reply and in process, there was evident breach of principles of natural justice to prejudice to petitioner - By way of interim relief, revenue is directed to release the goods and conveyance of petitioner on condition that they deposits with competent authority an amount of Rs. 40 lakhs within 10 days - Furthermore, when final order is passed and order also includes determination of fine in lieu of confiscation of goods, petitioner shall further comply with condition of furnishing bond of Rs. 1,17,80,550/- to be furnished alongwith deposit of amount of Rs. 40 lakhs - Non-compliance of any of conditions, shall render order of grant of interim relief liable to be vacated: HC
- Petition disposed of: GUJARAT HIGH COURT
2022-TIOL-1001-HC-AHM-GST
Varidhi Cotspin Pvt Ltd Vs State of Gujarat
GST - The refund claim of petitioner was rejected on the ground of "Wrong ITC Claim" - The striking infirmity in impugned order whereby refund was rejected was that it was entirely new ground than the aforesaid mentioned in SCN - The claim was negatived on the ground that refund was inadmissible because of wrong ITC claim - It turns out that the new ground is relied on by authority - It rejected claim of refund which was never mentioned in SCN - On the aforesaid short ground only, impugned order is quashed and set aside - Refund claim/application of petitioner shall be reconsidered by authority concerned afresh after following due procedure in law: HC
- Petition allowed: GUJARAT HIGH COURT
2022-TIOL-1000-HC-KOL-GST
Sailesh Chandra Dutta Vs Asstt. Commissioner
GST - Intra court appeal filed against the order of the Single Judge who dismissed their writ petition - Bench notes that there were multiple prayers in the writ petition and one such prayer was to quash the final assessment order dated 21.05.2019 which apparently had not been placed before the writ court - Appellant Petitioner submits that a hearing was fixed on 13.05.2019 but the Advocate appointed by the appellant could not appear due to personal inconvenience and also because there was a resolution passed by the Bar Association concerned on certain issues which prevented the advocates in that area from appearing before any authority or any court of law. Held: Considering the peculiar facts and circumstances of the case, Bench is of the view that one more opportunity can be granted to the assessee, however, such opportunity shall be subject to compliance of certain conditions - The total demand of tax, penalty and interest is Rs. 3,02,75,172.00 of which the tax component is Rs. 1,29,38,102.00 - With a view to afford one more opportunity to the appellant and also taking note of the interest of revenue because the Department was not able to recover the tax quantified even though the final order was passed on 21.05.2019 and in the year 2022 they were able to recover a portion of the amount by way of bank attachment and subsequently the assessee himself has remitted the sum of Rs. 33,21,050.00, the appeal is allowed and the order passed in the writ petition is set aside and the writ petition stands disposed of by directing the appellant to pay a sum of Rs. 35 lakhs to the appropriate authority within a period of three weeks - If amount is paid, then the appellant shall be entitled to treat the final order dated 21.05.2019 as a show cause notice and submit their objections within 7 days from the date on which the payment is effected - Authority shall thereafter adjudicate the matter and pass fresh order on merits and in accordance with law - Till such orders are passed, no coercive action shall be initiated against the appellant for recovery of the balance amount - Appeal allowed: High Court
- Appeal allowed: CALCUTTA HIGH COURT
2022-TIOL-999-HC-AHM-GST
Lupin Ltd Vs UoI
GST - The petitioner has prayed to call for records pertaining to recovery notice stated to have been issued by revenue and also wanting this Court to go into validity and legality of said recovery notice and to hold that long term lease of 99 years is nothing but sale of land and building in terms of Entry 5 of Schedule III to Section 7 of CGST Act, 2017 and that it would not attract the levy of GST - On bare reading of said communication, described by petitioner as "recovery notice", it is found that it is a mere communication from revenue - Court is at a loss as to why such communicative exercise has been undertaken by department - It is clearly stated that petitioner has misconstrued simple communication letter as recovery notice and filed present petition taking such an insignificant ground - There exists no cause of action - Accordingly, there was no occasion for this Court to go into the merits of case inasmuch as what was challenged is recovery notice which was actually a mere communication as stated by revenue himself: HC
- Petition dismissed: GUJARAT HIGH COURT
2022-TIOL-998-HC-KOL-GST
Haldia Petrochemicals Ltd Vs Commissioner of State Taxes
GST - TRAN-1 - On account of a technical glitch or on account of the assesses not being felt sensitized with the system etc. Form TRAN-1 could not be uploaded in time or in appropriate form. Held: Single Judge in the case of M/s. Das Auto Centre = 2022-TIOL-41-HC-KOL-GST has directed the authorities to open the portal so that the assessee may be able to file their respective TRAN-1 return or revise return or re-revise return - Bench is of the considered view that this would be a difficult exercise and such cannot be done by the assessing Officer in whose jurisdiction the assessee is carrying business; that it probably will have to be done at the very higher level and consequently direction, if any, issued to open the portal, would become unworkable qua prayer made by the writ petitioners - Bench is of the view of view that instead of directing the portal to be open, the direction issued in Hans Raj Sons ( = 2019-TIOL-2891-HC-P&H-GST ) is more assessee friendly - All these writ petitions are disposed of by granting liberty to the petitioners to file individual tax credit in GSTR-3B forms for the month of June, 2022 to be filed in the month of July, 2022 subject to verification of genuineness of the claim of the petitioner in all these cases and respondent GST authorities concerned shall allow the claim of these writ petitioners if it is found that the cases of the writ petitioners are similar to the facts involved in all the aforesaid decisions: High Court
- Petitions disposed of: CALCUTTA HIGH COURT
