2022-TIOL-1120-HC-MAD-GST
Rohit Goel Vs Addl. Director General
GST - Mandamus was sought in regard to a direction to the respondents to initiate proceedings for assessment u/ss 73, 74 as well as refund of amount collected from the company in the course of investigation proceedings - Contempt petitions came to be filed by the petitioner alleging non-compliance with the timelines as set out by the Division Bench - The petitions were disposed of together wherein the Bench was of the view that there was no wilful non-compliance of the timelines laid down but the delay had been occasioned on account of Covid pandemic; that on consideration of the submissions made, the Division Bench fixed an outer time limit of four months for completion of assessment proceedings - This order has been received by respondents on 08.04.2022 and the outer time limit would expire on 08.08.2022 - However, it is seen that there has been a delay of 2 months in forwarding the order to the Assessing officer concerned and when an explanation was sought in this regard, no explanation is given by the Counsel - Respondents are of the rank of the ADG and Senior Intelligence Officer of Directorate General of Goods and Services Tax Intelligence and have not exhibited the expected diligence or devoted necessary attention to effect compliance of the order of the Division Bench - For the intervening delay of 2 months, they are put to terms and directed to pay a sum of Rs.50000/- to the Cancer Institute, Adyar, Chennai within a period of two weeks: High Court [para 7 to 9]
GST - Insofar as the return of the amount of Rs.9.39 lakhs collected/seized from the petitioner's residence on 14.03.2019, section 67(2) authorises search and seizure - second proviso protects the interest of the assessee by stating that such documents/books/things referred to in sub-section (2) and which have not been relied upon for issuance of notice under the Act shall be returned within a period of 30 days from the date of issue of notice - It is correct that the amount of Rs.9.39 lakhs has not been appropriated toward the tax liability but such appropriation is not a condition u/s 67(2) or (3) and the condition is only that the asset seized must be 'relied upon' by the authorities for issuance of SCN - References to the amount in the course of the SCN would justify the retention of the amount till the proceedings for adjudication are complete - Second proviso to s.67(2) also states that the assets seized may be retained by the department till such time the enquiry or proceedings under the Act are complete - Therefore, the mandamus as sought for by the petitioner is not liable to be granted and hence is rejected: High Court [para 12 to 15]
- Petition dismissed: MADRAS HIGH COURT
2022-TIOL-1119-HC-ORISSA-GST
Mitambini Mishra Vs UoI
GST - Petitioner questions the propriety of the SCN dated 17.02.2022 demanding tax and penalty for the tax period 01.04.2020 to 31.03.2021; that the SCN alleges that the licensing services for right to use of minerals including its exploitation and evaluation is covered under HSN 997337 and attracts GST @18% and is required to be paid on reverse charge basis by lessees - Petitioner contends that since royalty is collected by Government under the provisions of the Odisha Minor Minerals Concession Rules, 2016, the impugned impost on the 'royalty' treating the same as 'service' is impermissible in law; that royalty is a price of winning minerals from the land and represents the State's share in such minerals and that there is no element or provision of any service by the State in this respect. Held: Court is not persuaded by the explanation of the petitioner that they would not come within the fold of s.24(iii) and is not liable to pay GST @18% - Interim orders show that the Jharkhand High Court has not restrained the Revenue authority from proceeding with the assessment - Law on the point of binding precedent of judgments and interim orders of other High Courts is fairly settled - Specious plea of the petitioner that when the issue whether 'royalty' is a 'tax' is pending before the Supreme Court, the assessment proceeding in respect of unregistered person under GST regime deserves to be kept in abeyance is misconceived - Assessment proceeding which commenced by issue of notice is required to be culminated in passing of final adjudication order within the period stipulated under the statute hence the Court is not inclined to grant stay of proceeding initiated by issue of SCN - SCN having spelt out reasons, no prejudice can possibly be caused to the petitioner in the event it is relegated to avail such opportunity by placing relevant material facts regarding legal issue - Present case seems neither to be a case of lack of jurisdiction nor is there any allegation of violation of principles of natural justice - Court feels that entertainment of the writ petition at the stage of demand cum show cause notice would be premature and doing so would frustrate the tax administration and adjudication process - Court is alive to the fact that the statute under consideration provides sufficient safeguard for the assessee -petitioner, more so, when against the final orders of adjudication, appeal lies - Court does not wish to entertain the writ petition challenging the demand cum SCN issued u/s 63 of the Act, therefore, the petition stands dismissed: High Court [para 5.2, 5.10, 5.16, 5.18, 6.2, 6.14, 8]
- Petition dismissed: ORISSA HIGH COURT
2022-TIOL-1118-HC-MAD-GST
Interplex Electronics India Pvt Ltd Vs Asstt. Commissioner of State Taxes
GST - Petitioner seeks a writ of mandamus directing respondent(s) to credit the amount relating to input tax credit (ITC) of Rs.16,21,227/- and Rs.4,24,136/- to their electronic credit ledger since Petitioner had erred in the amount mentioned for transition - Petitioner also questions the wisdom in the last dates for filing of TRAN-1 and revision of TRAN-1 being one and the same, leading to an absurdity in the practical application of the respective Rules. Held: Bench is concerned as to whether the end-date/cut-off date in two sets of timelines, one seeking transition and the other seeking revision of error in the return seeking transition, can be one and the same - In Bharat Electronics Ltd., Bench has taken the view that it does not stand to reason that the time limit for revision of a TRAN-1 return be identical to the timeline for filing of a return seeking transition - The purpose of revision is to enable correction/modification of a return of transition and in such an event, it would stand to reason that some additional time, over and above the timeline granted for a TRAN-1 return be provided by the respondent, in the later instance - Timelines under Rule 120A must be of a period over and above the timelines stipulated in Rule 117, mandamus as sought for by the petitioner is issued. Since the credits filed by the petitioner relate to Central Excise and Service both coming under Central jurisdiction, R1 may will enable opening of the portal such that revision may be sought - exercise to be done within eight weeks - Petition is allowed in above terms: High Court [para 24, 25, 27, 28]
- Petition allowed: MADRAS HIGH COURT
2022-TIOL-1117-HC-ORISSA-GST
Shree Hari Printers Vs CCT & GST
GST - There was default in furnishing returns as well as payment of taxes - Petition filed against cancellation of registration certificate - Ground taken is that the petitioner was not afforded sufficient opportunity to furnish reply. Held: If the Petitioner files application for revocation of cancellation of registration within a period of 30 days, the proper officer shall consider the same in its proper perspective by condoning the delay and such consideration shall be subject to the Petitioner depositing the tax, interest, penalty and late fee from the date of default - In order to enable the Petitioner to deposit tax, interest and penalty along with late fee, the proper officer shall take steps to open the portal and also allow the Petitioner to file all its returns - Upon compliance of the above, the proper officer shall consider the application for revocation of cancellation of registration in accordance with law - Petition disposed of: High Court [para 8, 9]
- Petition disposed of: ORISSA HIGH COURT
2022-TIOL-1116-HC-JHARKHAND-GST
Ami Enterprises Pvt Ltd Vs UoI
GST - Expiry of E-way bill - Detention of vehicle - Issuance of form GST MOV-06, SCN in form MOV-07 and adjudication order in form MOV-09 were passed on the same date i.e. 20 September 2021 - Petitioner deposited the entire tax amount with interest and got the vehicle released on 21st September 2021 - Petitioner failed in appeal, therefore, the present petition. Held: Apparently, the proceedings have been initiated on the same date and also concluded also on the same date - Although the respondent has stated that the proceedings were expedited at the instance of the taxpayer, however, there is nothing to substantiate such contention - Impugned adjudication order as well as appellate order, both, therefore, suffer from procedural infirmities and lack of proper opportunity to the petitioner or the person transporting, to defend himself - Impugned order in form MOV-09 and appellate order are set aside - Respondents are at liberty to take fresh decision after affording due opportunity to petitioner as provided under the Act - Petition is accordingly allowed to the extent indicated: High Court [para 6]
- Matter remanded: JHARKHAND HIGH COURT |
