2022-TIOL-1524-HC-AHM-GST

Conceptial Trade Vs State of Gujarat

GST - Petitioner has prayed for setting aside the attachment notice dated 06.01.2022 issued by Assistant Commissioner u/s 83 of the Act, 2017 - Petitioner has further prayed for a direction to the respondents and their officers to de-freeze the bank account held with IDFC First Bank standing in the name of the petitioner - Allegation of the department is that  the GST number of M/s Raja Traders was used for bogus billing activity without actual movement of goods as well as to generate and transfer the amount in violation of the provisions of CGST Act and the petitioner was found to be a part of the syndicate who claimed and availed GST refund fraudulently without any business transaction like sale/purchase by transferring the amount in the bank account.

Held:  The pendency of the proceedings is a sine qua non for exercise of powers of provisional attachment - While earlier section 83 could be invoked only during pendency of certain proceedings, now [w.e.f 01.01.2022] it can be invoked "after initiating proceedings under the Chapters mentioned therein" - The fundamental requirement remains valid that there must be proceeding pending before the section could be invoked and provisional attachment could be acted upon -  The impugned notice was issued on 06.01.2022 - There is no gainsaying that no proceedings were pending - The summons under section 70(1) of the CGST Act and GGST Act came to be issued only on 21.01.2022 - The very invocation of powers and issuance of order dated 06.01.2022 was, therefore, in absence of any proceedings initiated - The powers under section 83 could not have been exercised - The impugned order stands illegal when it seeks to provisionally attach the bank account of the petitioner - It is only on this ground that the impugned Order is liable to be set aside - Petition succeeds in part - The attachment order dated 6.1.2022 issued by the respondent no.3 is set aside - The respondent authorities may continue to proceed further pursuant to the summons dated 21.01.2022 and are at liberty to consider imposing the provisional attachment under section 83 of the CGST Act in accordance with law - Petition is partly allowed. [para 5.6, 6, 6.1, 7]

- Petition partly allowed: GUJARAT HIGH COURT

2022-TIOL-1523-HC-AHM-GST

J P Corporation Vs State of Gujarat

GST - This is a petition seeking to question the action of respondent authority on the ground of non-availment of opportunity of hearing - The question also raised is of a cryptic notice and having suspended the registration on the basis of such SCN - Considering the fact that that notice itself is quite cryptic and non-sustainable, without entering into merit following the decision, this petition would warrant interference of this decision categorically directs the authority concerned to be specific and ensure to avail opportunity of hearing - The SCN must contain requisite details for person to meet with challenges - While quashing the notice, it is being directed that authority concerned would be permitted to issue detailed notice and avail the opportunity of hearing to other side - It is ensured to this Court that such a notice would be issued in two weeks' time, and the reply shall be filed by petitioner and if required, personal hearing shall also be sought - The authorities concerned shall decide the same on merit on affording the best opportunity in accordance with law: HC

- Writ petition allowed: GUJARAT HIGH COURT

2022-TIOL-1522-HC-AP-GST

BAMSM Constructions Vs Deputy Asstt. Commissioner (ST)

GST - Petitioner is questioning the assessment order passed by the first respondent for the tax period June 2017 to September 2019.

Held: 

Jurisdiction

+ Act does not anywhere contemplate an authorization from higher authority for assessing the case of a dealer, falling within the territorial jurisdiction of the Officer. In view of the Notification issued by the Chief Commissioner, the first Respondent is the Proper Officer to proceed against the dealer under Sections 73 and 74 of the Act, more so, when the dealer falls within his territorial jurisdiction. Therefore, the argument that the first Respondent could not have passed the Assessment Order basing on the said authorization, though appeared to be correct at the first blush, but on a close perusal of the record, coupled with the Notification given, Bench holds that there is no illegality in first respondent assessing the case of the petitioner: High Court [para 19]

Whether Procedure followed

+ GST DRC-01A dated 05.10.2021, was issued, to which the taxable person sought 30 days time to file objections vide letter, dated 14.10.2021. On 05.11.2021, a reply came to be submitted by the taxable person in Part-B and ultimately a notice in FORM GST DRC- 01 was issued on 27.01.2022, followed by a notice of personal hearing on 02.03.2022, to which a reply was received in Form GST DRC-06 on 14.03.2022. After following the other mandatory requirements, the impugned Order came to be passed on 05.05.2022. Ergo, it is very much clear that, the procedure, as required under the Act, namely, issuance of Form GST DRC-01A, followed by a reply in Form GST DRC- 06, as contemplated under the Act, have been followed: High Court [para 38]

+ Since the notice came to be issued much prior to amendment to Rule 142 (1A), the mandate that was required to be followed has been followed. Hence, the argument of the Petitioner that the procedure contemplated under the Act was not followed falls to ground: High Court   [para 42]

Whether single Assessment order can be passed for IGST, SGST, CGST?

+ Except stating that single Assessment Order could not have been passed, no  provision under law debarring the Authority from following such procedure has been placed on record. Further, the prejudice that is caused in passing single Assessment Order is also not shown. Apart from that, neither IGST nor CGST Act, anywhere prohibit making a single assessment under both the enactments. When the same Officer is authorised to assess the case of the dealer under IGST and SGST, Bench feels that there is nothing wrong in single assessment being made unless grave prejudice is shown, which is not, in the case on hand: High Court  [para 47]

Writ jurisdiction

+ Issue a s to whether the turnovers falls outside the purview of Section 7 of the IGST and, as such, no tax under Section 5 of IGST can be levied by the first Respondent is a factual aspect, for which, this Court under Article 226 of the Constitution of India, cannot embark on investigating the same, more so, when a remedy of Appeal is available to the Petitioner: High Court [para 51]

- Petition dismissed: ANDHRA PRADESH HIGH COURT