2023-TIOL-253-HC-MUM-GST
Gulf Oil Lubricants India Ltd Vs Joint Commissioner Of State Tax
GST - Petitioners have challenged the Order(s)-in-Appeal passed by the State Tax authorities - Petitioners have filed these Writ Petitions invoking Article 226 of the Constitution of India on the ground that though the statute provides an appeal to the Appellate Tribunal under Section 112, the Appellate Tribunal is not constituted - A challenge is also raised to the validity of statutory provisions.
Held: Circular No. JC (HQ)-1/GST/2020/Appeal/ADM-8 dated 26 May 2020 issued by the office of Commissioner of State Tax, Maharashtra State gives clarification in respect of non-constitution of Appellate Tribunal - An identical Circular extending the period of limitation to file an appeal to the GST tribunal, with some modifications, has been issued by the Central Authorities - As clarified in the Circular dated 26 May 2020, the time to file appeals/application to the Appellate Tribunal would be counted from the date the President or the State President enters the office - It is stated in Clause 5 of the Circular that a declaration in Annexure-I has to be filed before the jurisdictional tax officer stating that an appeal is proposed to be filed - If such declaration is not filed, then it would be presumed that taxpayer is not willing to file an appeal and recovery proceedings would be initiated - Therefore, the sequitur is that if such a declaration is filed, recovery proceedings will not be initiated until the prescribed time limit as specified in Clause 4.3 of the Circular - Petitioners have already filed such a declaration under Clause 4.3 of the Circular - If the Petitioners have not filed declarations, Bench permits the Petitioners to submit the same within 15 days - Respondent State will consider two measures to reduce the inflow of writ petitions in this Court due to non-constitution of the GST Tribunal - First, to incorporate a stipulation contained in Clause 4.3 and Clause 5 of the Trade Circular dated 26 May 2020 in the order passed by the First Appellate Authority - This will put the taxpayer to notice that the time limit for filing the appeal is extended and if a declaration is filed in terms of Annexure-I within the stipulated period, the protective measure would automatically come into force - Second, if recovery is being undertaken in terms of Clause 5 for failure to file a declaration within the time limit, by way of indulgence, to give 15 days period to make such a declaration - Petition disposed of: High Court [para 5, 6, 7, 8, 10]
- Petition disposed of: BOMBAY HIGH COURT
2023-TIOL-252-HC-AHM-GST
Kishore Projects Pvt Ltd Vs State Of Gujarat
GST - Demand is raised of Rs.31,95,464/- for mismatch of ITC between GSTR 2A vs GSTR 3B of the GST Act - Petitioner submits that he could not file the appeal within three months under section 107 of the Act as his mother had passed away in January, 2021 and sister was suffering from cancer - Only after provisional attachment order came that he has no other alternative but to rush this court under Article 226.
Held: Apex Court has in Bharti Airtel - 2021-TIOL-251-SC-GST held that Form GSTR-2A is only a facilitator for taking an informed decision while doing self-assessment and also bearing in mind the personal circumstances of the petitioner, Court is allowing this petition permitting petitioner to go to the appellate authority, which shall without taking an objection with regard to the limitation, decide this matter on merits - Pre-deposit of Rs.2,02,245/- to be deposited by the petitioner within a period of two weeks - Once that amount is deposited, petitioner will be entitled to make a request for the release of his bank account - Petition disposed of: High Court [para 9, 10]
- Petition disposed of: GUJARAT HIGH COURT
2023-TIOL-251-HC-AHM-GST
Jatin Bhagwatlal Shah Vs State Of Gujarat
GST - Show cause notice had been issued on 29.01.2022 proposing to cancel the registration on the ground that petitioner was not found functioning at the principal place of business - The same was replied to by the petitioner pointing out that he has already shifted to a new place and had vacated the old one on 31.12.2021 - The authority did not hear him and his registration was retrospectively cancelled on the ground that he did not appear on the day fixed for hearing - The petitioner applied for revocation of cancellation of registration - Application for revocation of cancellation was rejected by reproducing the contents of the show cause notice dated 13.04.2022 - appeal also dismissed, hence the writ petition.
Held: It is quite apparent from the material, which is placed on the record that the cancellation of registration certificate is contrary to law - It is a non-speaking order, which cancelled the registration on the ground that he did not remain present even though he did submit the reply - Thus, cancellation of registration without assigning any reason is wholly mechanical and stereotyped - The very order, which is impugned in this petition when is considered, it is very cryptic and hence, following the decision of Agarwal Dying and Printing Works vs. State of Gujarat, 2022-TIOL-504-HC-AHM-GST indulgence is necessary - It needs to be pointed out that the petitioner concerned had shifted to another premises and, hence, he simply cannot be found at the old address - In absence of any intimating during the spot visit, if it was difficult for him to remain present because of the shift in the office, the cancellation of registration with the retrospective date is fully impermissible - Impugned orders are quashed and set aside and registration is restored - Petition is allowed: High Court [para 10, 11]
- Petition allowed: GUJARAT HIGH COURT
2023-TIOL-250-HC-AHM-GST
Lakkad Brothers And Company Vs State Of Gujarat
GST - Registration cancelled - In the order dated 07 10.2022, reason given for cancellation of registration, reads - "VALIDITY OF THE TRANSACTIONS CARRIED OUT WAS NOT SUBSTANTIATED BY MEANS OF REPLY FILED" - Petition filed.
Held: From the tenor of the show cause notice dated 02.11. 2021, it is noticed that specific reasons are not stated as to why the registration of the petitioner is proposed to be cancelled - Supporting document are also not attached to justify the reason - Moreover, in the show-cause dated 02.11.2021, though opportunity granted, no time or date was specified, which reflects non-application of mind by the respondent authority - Show cause notice dated 02.11.2021 and the order of cancellation of registration dated 07.10.2022, being without reasons are cryptic and deserves to be quashed and set aside and are hereby quashed and set aside - Registration to be restored forthwith: High Court [para 9, 10]
- Petition allowed: GUJARAT HIGH COURT |
