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2023-TIOL-52-HC-KOL-GST
Gayatri Projects Ltd Vs Assistant Commissioner of State Tax
GST - Intra court appeal filed by writ petitioners against order dated 18 November 2022 by which the Single Judge bench declined to grant any Interim order till disposal of writ petition - Order impugned in the said writ petition was passed by the WB AAR holding that the applicant [Eastern Coalfields Limited] is not entitled for ITC claimed by them on invoices raised by appellants during the period January, February, March 2020 and for which the supplier had furnished form GSTR-1 and GSTR-3B in month of November, 2020 and,therefore, the 4th respondent [ Eastern Coalfields Limited ], was required to reverse the said input tax credit - That, though the ITC claimed by the 4th respondent pertained to the invoices raised by the appellants, the appellants were not heard by the authority as they were not made parties to the said application - Appellants filed the writ petition contending that the non-payment of the GST amount charged by the 4th respondent [Eastern Coalfields Limited] to the appellants is violative of Article 19(1)(g) and 300A of the Constitution of India and against the provisions of the CGST and WBGST Act, 2017 - Appellants would further contend that they were unaware of the fact that the 4th respondent had approached the authority for an advance ruling and were informed by the 4th respondent only after the order was passed by the authority and even thereafter though the appellants had made a request to the 4th respondent to prefer an appeal to the appellate authority, such request was not considered by the 4th respondent and all these factors necessitated the appellants to approach the writ Court.
Held: Admittedly, the invoices, which were subject matter of consideration by the authority were the invoices raised by the appellants - Therefore, the appellants should have been put on notice by the authority or in other words, the 4th respondent ought to have impleaded the appellants in the proceedings before the authority -Undoubtedly, the appellants are aggrieved persons against the advance ruling - The 4th respondent having not preferred an appeal, such conduct of the 4th respondent cannot prejudice the rights of the appellants -Bench is of the view that the appellants cannot be non-suited by virtue of an order, which was passed by the authority without hearing them since the appellants have contended that sufficient factual details were not placed before the authority - Directing the appellants to prefer an appeal to the appellate authority may not be effective since the facts, which the appellants seek to bring on record were not part of the records before the original authority - Matter has to be re-examined by the authority themselves instead of directing the appellants to approach the appellate authority- Appellant should not be left remediless - Matter remanded to the 5th respondent for fresh consideration - 5th respondent is directed to issue notice to the appellants as well as the 4th respondent, hear the parties afresh, permit the appellants to submit documents as well as written submissions and thereafter fresh orders are to be passed on merits and in accordance with law -Directions to be complied by the 5th respondent as expeditiously as possible, preferably within a period of eight weeks - Petition disposed of: High Court [para 8, 9, 10, 11]
- Petition disposed of: CALCUTTA HIGH COURT
2023-TIOL-51-HC-MAD-GST
Vishaka Exports Vs Assistant Commissioner (ST) (FAC)
GST - Petitioner assails order dated 22.06.2022 made u/s 73 of the Act, 2017 - A ccording to the respondent, on verification of GSTR-3B and GSTR-1 monthly returns filed by the writ petitioner for the assessment year 2018-2019, certain discrepancies pertaining to difference in turnover between GSTR-1 and GSTR-3B, difference between GSTR-3B Vs GSTR-2A, input mismatch were noticed; that owing to such discrepancies said to have been noticed by sole respondent, the impugned order came to be made - Petitioner makes the following three points viz. that the impugned order was not preceded by Forms GST DRC-01 and GST DRC-01A;that no 'show cause notice' [SCN] was issued by the respondent before making the impugned order;that the writ petitioner has filed a rectification petition under Section 161 and the same is pending.
Held: As regards the first point i.e., the impugned order not being preceded by Forms GST DRC-01 and GST DRC-01A, there is an amendment to Rule 142 of 'Tamil Nadu Goods and Services Tax Rules 2017' which kicked in on and from 15.10.2020 wherein under sub-rule (1A) of Rule 142 , the expression 'proper officer shall' has been amended to read as 'proper officer may'- Therefore, decision in Shri Tyres case - 2021-TIOL-1912-HC-MAD-GST is no longer good law as the same has been rendered in circumstances where neither counsel for writ petitioner / dealer nor Revenue counsel brought to the notice of this Court the amendment to sub-rule (1A) of Rule 142 of TN-G&ST Rules which kicked in on and from 15.10.2020 - Applying the time honoured classical celebrated principle that while it is a great judicial virtue to be consistent, it is a greater judicial virtue to be correct, Bench stands corrected - First point of petitioner's campaign, therefore, stands doused -Court has no hesitation in holding that it is not imperative to issue a SCN -A careful perusal of this communication which according to writ petitioner is a rectification application, leaves this Court with the considered view that it does not qualify qua errors apparent on the face of the record as it talks about output mismatch qua Forms GSTR 3B and GSTR 1 and credit notes not reversed in GSTR 3B - This may well be grounds of appeal if the writ petitioner chooses to file a statutory appeal under Section 107 of TNG& ST Act but it cannot be gainsaid that it is an error apparent on the face of record - To be noted, the expression 'errors apparent on the face of record' has been repeatedly explained by this Court to be errors which are so obvious and so palpable (tangible, if one may say so) that no inferential process is required or no inferential process need to be applied to detect the error - A careful perusal of these issues set out herein will make it clear that they may not qualify as errors apparent on the face of record but this Court refrains itself from expressing any view or opinion on the same as this Court intends to preserve the rights of the writ petitioner to prefer a statutory appeal under Section 107 of TN-G&ST Act, if the writ petitioner is so advised and if the writ petitioner is desires to do so - Sum sequitur of the narrative, discussion and dispositive reasoning thus far leads this Court to the inevitable sequitur that the captioned main writ petition fails - It is made clear that all the rights and contentions of the writ petitioner are preserved, if the writ petitioner chooses to prefer a statutory appeal under Section 107 of TN-G&ST Act - Writ petition is dismissed: High Court[para 8, 9, 10, 12]
- Petition dismissed: MADRAS HIGH COURT
2023-TIOL-50-HC-ALL-GST
Ganpati Battery Traders Vs State of UP
GST - Petitioner sold 793 pieces of large damaged battery and 7538 pieces of small damaged battery sold to M/s Shanti Prakash Power Private Limited at Gwalior through tax invoice - Enroute to its destination, the goods sent through truck, were intercepted by the mobile squad near Unnao; the truck was detained for verification - Notice was served upon the driver of the truck and a reply was submitted - Assistant Commissioner (Mobile Squad), Unnao vide order dated 1.3.2002 imposed a penalty of Rs.9,70,542/- and directed for deposit of the amount in terms of Section 129 of the Act - Petitioner deposited the entire amount of penalty, and the truck along with goods were released on 1.3.2022 - Against the order of the Assistant Commissioner, an appeal was preferred by the petitioner before the Additional Commissioner but since the appeal was rejected [order dated 30.4.2022], the present petition is filed - Petitioner contends that the Appellate Authority was not correct to uphold the detention order and the order of penalty passed by the Assistant Commissioner on the ground that the goods sold were on the basis of number of pieces and not according to the weight - It is further submitted that it was old and damaged batteries which the petitioner had purchased only by pieces and not by weight, and was further sold according to battery per piece; that the batteries were completely redundant and cannot be re-sold after repair; that there was no concealment on the part of the petitioner/assessee as correct description was given in the truck invoice differentiating the goods between large damaged battery and small damaged battery - Counsel for Revenue submitted that the petitioner was trying to evade payment of tax and the battery was sold in terms of per piece and not according to the weight.
Held: In the reply furnished by the petitioner in paragraph 3, it has been stated that the battery is purchased and sold on the basis of per piece and not on the basis of weight - The Adjudicating Authority, while passing the order dated 1.3.2022, has not recorded any finding as to how the explanation accorded by the petitioner cannot be accepted and the trade practice of purchase and sale of battery is according to weight and not per piece - Appellate authority too has failed to record any finding as to how it has arrived to the conclusion - Court finds that Rule 46 of CGST Rules, 2017 , which has been relied heavily by the State, also does not provide for the stand taken by the State, and it only provides the description which the seller is to give while the goods are sold, which, in the present case, has been done by the petitioner - Both the orders dated 1.3.2022 and 30.4.2022 are hereby set aside - Authorities are directed to refund the amount of penalty within one month - Writ petition stands allowed: High Court
- Petition allowed: ALLAHABAD HIGH COURT
2023-TIOL-04-AAR-GST
Triveni Engicons Pvt Ltd
GST - Applicant submits that M/s Rites Limited, a Public Sector Undertaking owned by the Ministry of Railways, Government of India for and on behalf of the Eastern Coalfields Limited (ECL), has awarded the applicant the work of construction of new railway siding at Jhanjra Area, West Bengal - Applicant seeks to know as to whether the said work awarded can be covered under the definition of Works Contract a defined u/s 2(119) of the Act, 2017; whether the rate of tax for the construction of rail infrastructure facilities will be covered under Sl. No. 3(v)(a) or Sl. No. 3(xii) of notification 11/2017 -CTR.
Held: Work being undertaken by the applicant is in relation to immovable property and certainly involves transfer of property in goods thereby qualifies to be a ‘works contract' as defined in clause (119) of section 2 of the GST Act - In the instant case, the applicant executes construction work in connection of New Railway Sidings at Jhanjha Area of Eastern Coalfield Limited - Thus, the contention of the applicant that the work can be considered as original works as defined in clause 2 (zs) of Notification No. 12/2017 -Central Tax (Rate) dated 28.06.2017 is accepted - Held, therefore, that contract for construction of new railway siding at Jhanjra Area of ECL against order received from M/s. RITES Ltd is covered under the definition of works contract as defined in clause (119) of section 2 of the GST Act and would be taxable @ 12% vide Sl. No. 3(v)(a) of Notification No 11/2017 -Central Tax (Rate) dated 28.06.2017 till omission of the said entry vide Notification No. 03/2022 - Central Tax (Rate) dated 13.07.2022: AAR
- Application disposed of: AAR |
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