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2022-TIOL-1244-HC-DEL-GST
Seema Gupta Vs UoI
GST - Petition has been filed challenging clause A(b) of notification 4/2022-CTR dated 13 July 2022 [w.e.f 18.07.2022 and which seeks to amend notification 12/2017-CTR , Sr.no . 12] as unsustainable being ultra vires Article 14 of the Constitution and also being beyond the powers conferred under the Act, 2017 - It is inter alia averred that the said amendment is particularly affecting those who are doing their business as a proprietary concern, like the petitioner; that denial of exemption solely on the basis that the tenant is registered under GST is not based upon any intelligible differentia and the said differentia has no rational relation to the object sought to be achieved - In the second supplementary affidavit dated 23rd September 2022, filed by the respondent UOI & Ors, it is mentioned that - “Since the government is bound by the recommendations of the GST Council, a proposal to amend notification no. 4/2022-CTR to bring in greater clarity regarding taxability of registered persons is being examined to be placed before the GST Council as the notification 4/2022-CTR does not specify that GST would be charged only where the registered person has rented (taken on rent) residential dwelling in course or furtherance of business; However, for the present purposes, it is reiterated for clarity that renting of a residential dwelling to a proprietor of a registered proprietorship firm who rents it in his personal capacity for use as his own residence and not for use in the course or furtherance of business of his proprietorship firm and such renting is on his own account and not that of the proprietorship firm, shall be exempt from tax under notification 4/2022-CTR dated 13.07.2022."
Held: The aforesaid clarification that renting of a residential dwelling by a proprietor of a registered proprietorship firm, who rents it in his/her own personal capacity for use as his/her own residence as well as not for use in the course or furtherance of business of his/her proprietorship firm and such renting is on his/her own account and not that of proprietorship firm shall be exempt from GST, is accepted by this Court and all the respondents are held bound by the same - Accordingly, no further orders are called for in the present petition - Petition disposed of: High Court
- Petition disposed of: DELHI HIGH COURT 2022-TIOL-1241-HC-AP-GST
Dr Sandeep Kumar Gupta Vs UoI
GST - A writ petition came to be filed seeking issuance of a Writ of Mandamus directing the respondents 5 & 6 to declare the goods manufactured by the petitioner as classifiable under Chapter Heading 0804 50 40 and exempt from GST in terms of entry 51 of Notification No. 2/2017-CT(Rate) - By an order dated 27.07.2022, Court directed the respondents not to take any coercive steps for recovery of GST @ 18% as contemplated by them in respect of past transactions and insofar as future transactions are concerned, in view of the dispute as to whether 'mangoes' mentioned in the notification include 'mango pulp', directed that petitioner shall pay GST @ 18% - The question that arises is whether the authorities were right in charging GST in respect of Mango Pulp @18%.
Held: It is to be noted that on an application made by the petitioner before the Authority For Advance Ruling, Andhra Pradesh, an order came to be passed on 07.07.2021 wherein it was held that the 'Mango pulp/puree' falls under the entry no.453 of Schedule-III of Notification No. 1/2017-Central Tax (Rate) , attracting GST @ 18% and in appeal, the AAAR by its order dated 20.01.2022 held that Mango Pulp/Puree' is classifiable under Tariff Item 0804 50 40 and chargeable to GST @ 18% by virtue of entry No.453 of Schedule III in Notification No.1/2017-CTR - Pending the writ petition, the CBIC issued a Circular 179/11/2022-GST dated 03.08.2022 clarifying that on the basis of recommendation of GST Council in its 22nd meeting, the GST rate on 'Mangoes sliced, dried' falling under heading 0804 was reduced from 12% to 5% while GST rate on all forms of dried mangoes (other than sliced and dried mangoes) falling under heading 0804, including mango pulp, was always meant to be at the rate of 12% - Orders passed by the Appellate Authority for Advance Ruling imposing GST in respect of 'mango pulp' @18% is, therefore, incorrect - Petitioner is liable to pay GST on Mango pulp @ 12% - Petition is disposed of: High Court [para 6, 7, 8]
- Petition disposed of: ANDHRA PRADESH HIGH COURT
2022-TIOL-1240-HC-AP-GST
Bommineni Ramanjaneyulu Vs Joint Commissioner of State Taxes
GST - Petition is filed to declare the Authorization for access to Business premises issued under Section 71(1) by the first respondent [Joint Commissioner] dated 28.10.2021 in favour of the second respondent [Deputy/Assistant Commissioner] as contrary to Sub-Section 91 of Section 2 read with Section 5(1) and 5(3) of the APGST Act. Held: Point that arises for consideration is, whether the authorization given to the second respondent herein by the Joint Commissioner is valid in law - It would be relevant to refer to Gazette Notification issued on 09.12.2019 by the Government of Andhra Pradesh - Serial 21 of the list, refers to Section 71(1), (2) & (2)( i ) of the Act - In the column 'Function', it is shown as "to access business premises, inspect books of accounts, documents, etc for Audit, Scrutiny, Verification" - In the column 'Designation of Officer authorised', it is mentioned as "JCST working in the divisions/Addl. CST/Commissioner ST working in the office of CCST entrusted with the enforcement activities" - From the above, it is very much evident that the Proper Officer for the functions referred to Section 71(1) of the Act, would be the three officers referred to in the column designation of officer authorized and one such Officer being Joint Commissioner (ST) working in the Division - Therefore, the authorization given by the Joint Commissioner pursuant to the Gazette Notification issued by the Chief Commissioner authorizing certain categories of persons cannot be found fault with - It is also to be noted here that the authorization by the Chief Commissioner came to be issued in terms of Section 2(91) of the Act which categorically states that the "Proper Officer" would mean not only the Chief Commissioner but also Officer of the State Tax, who is assigned that function by the Chief Commissioner - No grounds to grant the relief sought for by the petitioner namely, to quash the proceeding issued by Joint Commissioner authorizing the Assistant Commissioner (ST) to conduct inspection/search etc. of the premises of the petitioner - Writ petition is dismissed: High Court [para 10, 11, 12, 13, 14]
- Petition dismissed: ANDHRA PRADESH HIGH COURT
2022-TIOL-1239-HC-DEL-GST
Balaji Enterprises Vs Principal Additional Director General Directorate General of GST Intelligence
GST - Petition is directed against order dated 04.05.2022 passed by Superintendent in the matter of SCN dated 31.03.2022 proposing cancellation of registration of the assessee. Held: A perusal of the SCN would reveal that there is next to nothing stated as to the reason why the authority concerned proposed the cancellation of registration - Ironically, the onus is put on the petitioner to demonstrate that registration has been obtained by fraud, wilful mis-statement or suppression of facts - After a reply was submitted on 07.04.2022, the impugned order was passed - A plain reading of the order would show that the petitioner's registration was cancelled on account of an enquiry pending against the petitioner, which evidently is being carried out by DGGI, Chennai, concerning supply of ‘spurious goods' - Interestingly, the impugned order reveals that nothing was due from the petitioner on account of tax, interest, penalty etc. - Clearly, the SCN did not advert to the facts which were referred to in the impugned order - Although as per the impugned order, the Range Inspector appears to have physically verified the petitioner's premises, neither was any notice given of the physical verification nor is the report which was generated after the verification uploaded on the portal and which was required to be done as per rule 25 of the Rules, 2017 - Counsel for Revenue is unable to give any satisfactory answer in this regard - Apart from anything else, there is, certainly, an infraction of the provisions of rule 25 of the Rules and that apart, the impugned order has gone beyond the frame of the SCN - Impugned order is set aside and the writ petition is allowed - Respondents will restore the registration of the petitioner: High Court [para 2, 4, 5, 6, 7.1, 7.2, 9, 11, 12]
- Petition allowed: DELHI HIGH COURT |
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