I-T - Exemption claimed by assessee u/s 54 merits being restricted where assessee has jointly invested in & jointly owns house property along with assessee's son: ITAT

I-T - Where view taken by AO is plausible, then order passed by him after due enquiry about such claim, cannot be held to be erroneous, so as to invoke revisionary jurisdiction u/s 263: ITAT

I-T - Cash withdrawn during Demonetisation drive & later re-deposited in same account, cannot be treated as unexplained: ITAT

I-T - CIT (A) should decided issue in dispute on merit instead of dismissing appeal for non-prosecution since he has power of enhancement: ITAT

I-T- If exemption is available on complying with certain conditions precedent under respective Statute, those conditions have to be strictly complied with: ITAT

Cus - In wake of availability of Appellate remedy which can examine all aspects of breach of principles of natural justice and entire spectrum of factual matrix, petitioner to approach appellate authority: HC

GST - Powers exercised u/s 83 are serious and harsh in nature and are not to be used in a manner that it may have irresistible detrimental effect on the business of assessee : HC

GST - IGST refund - Risky supplier - None of the provisions of the Act mandate the petitioner to verify the genuineness of the suppliers of the supplier: HC

CX - Rule 7 of CCR 2004 allowed distribution of credit even prior to 01.04.2016 : CESTAT

2023-TIOL-197-HC-AHM-GST

Smita And Sons Coal Pvt Ltd Vs State Of Gujarat

GST - Petitioner challenges the order of provisional attachment of the Bank account under section 83 of the Act, 2017 - Petitioner company had purchased Iron and Steel Waste Scrap from M/s. Arsh Enterprise, which has having valid GST registration at the time of purchase of goods – However, the GST registration of M/s. Arsh Enterprise had been cancelled on 31.10.2020 - It is averred by the petitioner that respondent No. 2 had taken extreme coercive steps, whereby his entire business came to a grinding halt by attaching the Bank account without any pending proceedings – A request was made by the petitioner to the respondent No. 2 to release the Bank account, however, till date the Bank account is not released and hence, this petition - It is the say of the respondent that 40 business entities had passed on Input Tax Credit amounting to Rs.6.03 Crore during the period from April 2018 to June 2019 to M/s. Arsh Enterprise and most of these entities were bogus. Held : Undoubtedly, the powers exercised under section 83 of the Act are serious and harsh in nature – Court has in the case of Arya Metacast Pvt. Ltd. 2022-TIOL-476-HC-AHM-GST had inter alia held that the powers of section 83 of provisional attachment needs to be taken recourse of sparingly; that it should not be used as a tool to harass the assessee nor should it be used in any manner that it may have irresistible detrimental effect on the business of the assessee - Procedure that had been required to be followed as per the Circular [ CBEC-20/16/05-2021-GST/359 dated 23 February 2021 ] and also on issuance of FORM DRC 01A had not been done before the provisional attachment of the Bank account had been made - Guidelines issued by the Circular of CBEC on 23.02.2021 also make it amply clear that the remedy of attachment being by itself very extraordinary needs to be resorted to with utmost circumspection and maximum care and caution, which in the instant case appear to have been missing and hence, that order needs to be quashed and set aside - At the same time, being aware of the inquiry which has been made against M/s. Arsh Enterprise and the purchase having been made by the present petitioner in 2018-19 from M/s. Arsh Enterprise for the goods worth Rs.37,21,420/-, striking the balance, it would be apt to release the Bank account by directing the Bank to not permit the petitioner to operate so far as the tax amount of Rs.3,95,568/- for the year 2018-19 and tax amount of Rs.1,72,104/- for the year 2019-20 – Petition disposed of: High Court [para 8, 9.4, 9.5, 11]

- Petition disposed of: GUJARAT HIGH COURT

2023-TIOL-196-HC-AHM-GST

Choksi Exports Vs UoI

GST - IGST Refund - Section 54 of the Act, 2017 - Delay in granting refund, hence petition filed - Petitioner seeks a direction to the respondent to release the refund of IGST amounting to Rs.14,80,27,927/-. Held: Petitioner purchased goods from Sayan Greemochem Private Limited who had purchased goods from Prince Chemicals, who is placed in the list of L2 risky supplier and, therefore, the IGST refund of the petitioner was withheld on the ground of availment of wrong ITC by the petitioner - Petitioner has reversed the Input Tax Credit of Rs.11,55,726/- along with penalty and interest towards the said goods purchased - Further, none of the provisions of the CGST Act and the IGST Act mandate the petitioner to verify the genuineness of the suppliers of the supplier, even though safeguards is provided to recover the taxes, if not paid or wrongly availed by the petitioner's supplier or supplier's supplier - In this case, the supplier's supplier is placed in the list of L2 risky supplier and even then, with a hope to get the IGST refund, the petitioner has paid the ITC, but still the refund is not processed and given to the petitioner - Respondents ought to have granted the provisional refund to the extent of 90% as provided under Section 54(6) of the CGST Act read with Rule 91 of the CGST Rules, which the respondents failed to do so - Even after submission of the positive verification report to the respondent no.7, the respondent no.7 herein has not issued the NOC for issuing the refund and even after issuance of notice and adjourning the matter on some occasions, there is no representation on behalf of respondent no.7 - In this case, the petitioner has filed shipping bills for all the exports and the petitioner is not prosecuted for any offence under the Act or under the existing law and has also reversed the ITC, therefore, there is no point for the respondents herein to withheld the refund - Respondents-authorities are directed to grant the amount of IGST refund to the petitioner, as claimed by the petitioner as provided under Section 54(6) of the CGST Act r/w Rule 91 of the CGST Rules and credit such amount to the petitioner's account within a period of three weeks - Petition partly allowed: High Court [para 8, 9, 11]

- Petition partly allowed: GUJARAT HIGH COURT

2023-TIOL-198-HC-AHM-CUS

Aziz Fakirmohamed Sumbhaniya Vs UoI

Cus - Smuggling of gold - Petition filed seeking for setting aside the OIO passed by the adjudicating authority and the order passed by CESTAT and to re-adjudicate the SCN since orders passed by not following the principles of natural justice. Held : Bench is not convinced prima facie that there has been any breach of principles of natural justice much less gross violation at the time of service and thereafter of adjudication of the show cause notice - However, the fact remains that the participation on the part of the petitioner was missing when OIO was finalized - All these aspects, which have been raised before this Court in the writ jurisdiction are not to be gone into by this Court in wake of availability of Appellate remedy which can surely examine all these aspects of breach of principles of natural justice and entire spectrum of factual matrix - A balance needs to be struck by allowing the petitioner to approach the appellate authority by furnishing the amount of pre-deposits of the requisite amount - If request, if any, comes from the petitioners to the Appellate authority to consider and regard the value of attached properties as adequate security at the time of furnishing pre-deposit, the same may be regarded, if permissible - Resultantly, without making any interference with the OIO, all the petitioners are permitted to approach the appellate authority by making the pre-deposit in four weeks' period - When the petitioner represents himself either in person or through the authorised person, the appeal shall be decided in accordance with law, where appellate Court would be also permitted to relegate/ remand the parties to the stage of considering afresh the recording of evidence, if deemed appropriate - Petition disposed of: High Court [para 36, 37, 38, 39]

- Petition disposed of: GUJARAT HIGH COURT

2023-TIOL-122-CESTAT-DEL

Shahi Food Product Vs CCGST & CE

CX - The issue at hand is whether input service credit distributed by M/s. Parle Biscuits Pvt. Ltd. Parle to M/s. Shahi Food Product the appellant can be denied on the ground that credit could be distributed by Parle only to its own manufacturing unit under rule 7 of the CENVAT Credit Rules, 2004 the CENVAT Rules and not to the appellant which is not a manufacturing unit of Parle - The Commissioner (Appeals), by order dated 25.03.2019, held that the appellant would be eligible for taking CENVAT credit w.e.f. 01.04.2016 in view of the amendment made in rule 7 on 01.04.2016 but has denied CENVAT credit to the appellant for the period prior to 01.04.2016 from April 2013 to 31.03.2016 - The said order passed by the Commissioner (Appeals), to the extent that it is denied CENVAT credit for the period prior to 01.04.2016, has been assailed in this appeal. Held - The only issue that arises for consideration in this appeal is as to whether the appellant was entitled to take CENVAT credit prior to 01.04.2016 since credit for the period w.e.f. 01.04.2016 has been granted by the Commissioner (Appeals) - The assessee's submission advanced before the Larger Bench was that Rule 7 of CCR, 2004 allowed distribution of credit even prior for the period to 01.04.2016 and, in any case, substitution of rule 7 of the CENVAT Rules would have retrospective application. After noticing the provisions of the CENVAT Rules and the Authorization submitted by Parle, which was accepted by the appellant, the Larger Bench had observed that Rule 7 of the CENVAT Rules allows distribution of credit to its manufacturing units - It was also observed that it does not use the words its own manufactures units - It can, therefore, safely be presumed that the term its manufacturing units should include a contract manufacturer, who manufactures in accordance with the provisions of the Registration Exemption Notification - Therefore, the Commissioner (Appeals) was not justified in denying CENVAT credit distributed by Parle prior to 01.04.2016: CESTAT

- Appeal allowed: DELHI CESTAT

2023-TIOL-121-CESTAT-KOL

Shree Automotive Pvt Ltd Vs CCGST & CE

ST - O-I-O dated 24.04.2019 was communicated to appellants on 07.05.2019 and appeal before First Appellate Authority was required to be filed on or before 07.07.2019 - But the Appeal was filed on 02.08.2019 - Accordingly, appeal was filed beyond statutory period of 60 (sixty) days, but within condonable period of 30 (thirty) days - Appellant inadvertently mentioned the date of communication of O-I-O in appeal Memo as 26.04.2019 instead of actual date of receipt of O-I-O - Accordingly, Commissioner (A) considering the date as 26.04.2019, dismissed the appeal before him - However, appellants realized their mistake and communicated with Department and it was communicated vide letter dated 09.01.2023 - Appeal though filed beyond statutory period, but was filed within condonable period - Accordingly, delay in filing appeals is condoned and find it appropriate to remand the matter to Commissioner (A) to decide the appeals on merits without further visiting the aspect of limitation - Appellant has submitted some documents which shows that Department had taken coercive steps for realization of demand - However, subsequent to order of Tribunal dated 11.01.2023, a letter was issued on 13.01.2023 to all the banks of appellant that the order for freeze may be treated as withdrawn w.e.f. 13.01.2023 onwards - It is observed from O-I-O that substantial amount has already been paid by appellant and also appropriated in O-I-O - The Officers need not have taken these steps so as to stop complete business transactions of appellant and put him into a condition that he is unable to transact his day to day business when all their bank accounts have been freezed - Impugned orders are set aside: CESTAT

- Matter remanded: KOLKATA CESTAT