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2023-TIOL-748-HC-MAD-GST
Mohanan Gnansekar Vs State Tax Officer
GST - A notice under DRC 01A dated 23.01.2023 issued by the officer had computed tax, interest and penalty under the provisions of the Act for the period August, 2017 to September, 2017 and had called upon the petitioner to remit the same on the ground that the demand related to fraudulent availment of Input Tax Credit (ITC) from a non-existent supplier - A nnexure to DRC 01A set out the name of the supplier that was alleged to be non-existent as M/s. Baby Suba and Company as well as TIN number of that supplier, accompanied by a tabulation containing the invoice numbers, dates and value of the transaction inter se with quantification of the tax and interest payable thereupon -
- Notice further stated that if the demand, as ascertained, was not remitted, a show-cause notice will be issued under Section 74(1) - Petitioner later received a SCN dated 31.01.2023 u/s 74(1) and an order dated 12.04.2023 in form GST DRC-07 [Summary of the Order] came to be passed - Petitioner is aggrieved that the SCN does not specifically refer to any transaction alleged to have been connected with the erroneous availment/utilisation of ITC and this itself is sufficient to vitiate the proceedings.
Held: Bench does not agree with the submissions of the petitioner for the reason that the show-cause notice issued under Section 74 is evidently a continuation of the proceedings initiated under notice in DRC-01A dated 23.01.2023 - In fact, that notice under DRC-01A has itself been issued under threat of further proceedings under Section 74 and thus, the connection or nexus, has been clearly established - The annexures filed along with DRC 01A reveal the identity of the allegedly non-existent suppliers as M/s.Baby Suba and Company as well as the details of transactions inter se and thus, the petitioner is well aware of the specifics of the proposal and is conscious of the fact that the show-cause notice relates to, and is in continuation of the earlier proceedings - The procedure adopted aligns with the statutory scheme of the Act as well - The reply which has been submitted in the format prescribed in Form GST DRC-06 in terms of Rule 142 (4) of the Rules, and contains in serial number 7, an option for personal hearing which the petitioner has marked as NIL, thus declining the offer for personal hearing - Petitioner was well aware of the issue that had been raised against it and the notices were sufficiently elaborate on the points raised for response - By not appearing on the scheduled date, Petitioner has also forfeited the benefit extended to them by way of personal hearing - It is under these circumstances, that the impugned order has come to be passed in GST DRC-07 dated 12.04.2023 wherein, in the absence of any supporting materials as promised by the petitioner and also no appearance on 05.04.2023, when the matter was fixed for personal hearing, the assessing authority has proceeded to confirm the proposals - No legal infirmity in the procedure followed by the assessing authority in passing the impugned order - Impugned order of assessment is confirmed and this writ petition is dismissed: High Court [para 7, 8, 13, 16, 17, 18]
- Petition dismissed: MADRAS HIGH COURT
2023-TIOL-747-HC-ALL-GST
Antosh Traders Vs State of UP
GST - Appeal was dismissed by the Additional Commissioner (Appeals) on the ground that the same was filed beyond the period of limitation - Petitioner submits that he fell seriously ill [Spinal Tuberculosis] for which he was continuously under medical treatment from 05.02.2021 to 19.07.2022 and, therefore, the appeal was filed on 19.07.2022 but without taking into consideration the bonafide delay, the appeal was dismissed.
Held: Admittedly, the appeal was filed beyond time, however, in the peculiar set of facts and circumstances, the reason for delay prima facie , appears to be bona fide - Impugned order dated 26.12.2022 passed by the Appellate Authority is set aside and the matter is remanded to the Appellate Authority with a direction to consider and adjudicate upon the appeal filed by the petitioner on merits without raising any objection on the limitation, after giving notice and opportunity of hearing to all concerned - Appeal to be filed within two weeks - Order is passed in the peculiar set of facts of the case and without entering into merits of the case - Petition is partly allowed: High Court [para 12, 14, 18]
- Petition partly allowed: ALLAHABAD HIGH COURT
2023-TIOL-95-AAR-GST
Satyam Balajee Rice Industries Pvt Ltd
GST - A pplicant is supplying rice to customers in pre-packaged and labelled packages, having quantity upto 25 kilograms - These customers are (a) those located abroad; (b) customers located in India who purchase rice from the applicant for the purpose of exports on ‘bill to ship to' basis; (c) customers located in India who purchase rice from the applicant for the purpose of exports - Applicant has sought to know the taxability of such supplies.
Held: (a) GST is leviable on export of the said pre-packaged and labelled rice up to 25Kgs to foreign buyer @ 5% IGST, subject to compliance of the provisions as specified in Notification no. 01/2017 - IGST (Rate) dated 28.6.2017 as amended, effective from 18.7.2022; (b) GST is leviable on supply of pre-packaged and labelled rice up to 25Kgs, to exporter on "bill to ship to" basis, @ 5% [2.5% CGST + 2.5% SGST] or (5% IGST) as the case may be, wherein the exporter ultimately exports the rice to foreign buyer subject to compliance of the provisions as specified in Notification no. 01/2017 -CT(Rate) / Integrated tax (rate) dated 28.6.2017 as amended, as applicable effective from 18.7.2022; (c) GST is leviable on supply of pre-packaged and labelled rice upto 25Kgs to factory of exporter, @ 5% [2.5% CGST + 2.5% SGST] or (5% IGST) as the case may be, wherein the exporter ultimately exports the rice subject to compliance of the provisions as specified in Notification no. 01/2017 - CT(Rate) / Integrated tax (rate) dated 28.6.2017 as amended, as applicable effective from 18.7.2022 - For interstate / intrastate supply of taxable goods by a registered supplier to a registered recipient/ merchant exporter, for exports, IGST @0.1%/ CGST-SGST@ (0.05% + 0.05%) has been stipulated vide Notification no. 41/2017 -lntegrated Tax (Rate) dated 23.10.2017 / Notification no. is 40/2017-Central Tax(Rate) dated 23.10.2017 respectively, subject to the adherence of the terms and conditions as stipulated therein: AAR
- Application disposed of: AAR
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