2023-TIOL-922-HC-DEL-GST
Vikas Enterprises Vs CCT (GST)
GST - Petitioner impugns a communication issued by the Superintendent, Anti-Evasion group to the Branch Manager, SBI directing the bank to not permit any debit from the account maintained with the said bank without prior permission of the department.
Held: Counsel appearing for the respondents is unable to point out any provision under the Act, 2017 permitting respondent no.2 to issue such a communication directing the Bank to freeze the bank account - An order of provisional attachment of assets under Section 83 of the CGST Act can be issued only if the Commissioner is of the view that it is necessary to protect the interest of the Revenue - However, admittedly, in the present case, the Commissioner has not issued any such order - The impugned communication also does not indicate that it was issued with the authority of the Commissioner - No order under Section 83 of the CGST Act can be passed by any officer other than the Commissioner and this can be done only if he is satisfied that it is necessary to pass such an order for protecting the interest of Revenue - It is well settled that the orders of provisional attachment of bank accounts or other assets of a taxpayer has a serious adverse effect on the business of the taxpayer - The impugned communication is without authority of law - Statutory provisions have been disregarded with impunity - Cost of Rs. 5,000/- on the respondents and which has to be recovered from the officer concerned - Impugned communication to the extent that it seeks to place a debit freeze on the petitioner's account is set aside - Petition disposed of: High Court [para 3, 4, 5, 8, 9]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-921-HC-P&H-VAT
DLF Projects Ltd Vs State of Haryana
VAT - Assessee has knocked at the doors of this Court for assailing a show cause notice dated 30.12.2021 issued by respondent No.2 under Section 34 of Haryana Value Added Tax Act, 2003.
Held: Supreme Court had [in Malladi Drugs and Pharma Limited v. Union of India - 2004-TIOL-135-SC-MISC ] affirmed the view taken by the High Court that the appellant should first raise all the objections before the authorities who had issued the show cause notice and in case, any adverse order is passed against the appellant, then liberty can be granted to approach the High Court - The petitioner filed this writ petition even before filing any reply to respondent No.2 - It has failed to show that there was any lack of jurisdiction on the part of respondent No.2 while issuing this notice - Though it has been submitted that the principles of natural justice had been violated, however, it could not be pointed out as to what principle of natural justice had been violated while issuing the impugned notice and how? - The respondent No.2 was competent to issue the impugned notice within six years from the date of supply of copy of the remand assessment order dated 02.08.2017 to the assessee and as such this notice had been issued within time and, therefore, bar of limitation or jurisdiction does not arise - The matter has not gone beyond the show cause notice - In the present set of circumstances, any finding by this Court at this stage is likely to be prejudicial to the interest of either of the parties to this petition - The issues raised in the show cause notice are required to be determined by the respondent No.2 at the first instance – Petition dismissed: High Court [para 13, 18]
- Petition dismissed: PUNJAB AND HARYANA HIGH COURT
2023-TIOL-920-HC-ALL-GST
DRS Wood Products Vs State of UP
GST - The petition filed against order whereby the appeal preferred by petitioner has been rejected - Said appeal was preferred against order whereby the application for revocation of cancellation of registration was rejected - A perusal of SCN clearly depicts the opaqueness of allegations levelled against petitioner, which were only to the ground that 'tax payer found non-functioning/non-existing at the principal place of business' - A vague SCN without any allegation or proposed evidence against petitioner, clearly is violative of principles of administrative justice - Cancellation of registration is a serious consequence affecting fundamental rights of carrying business and in a casual manner in which SCN has been issued clearly demonstrates the need for State to give quasi-adjudicatory function to persons who have judicially trained mind, which on the face of it absent in present case - The order of cancellation of registration on the ground that no reply was given is equally lacking in terms of a quasi-judicial fervor as same does not contain any reasoning whatsoever - SCN issued after the petitioner had filed an application for revoking cancellation of registration also smacks of lack of judicial training by quasi-adjudicatory authorities under GST Act as it merely shows that no satisfactory explanation was received within prescribed time - It is also not clear as to why the request of petitioner to adjourn the matter because of marriage of his daughter was not even considered prior to passing of rejection order - The Appellate Authority has gone on a further tangent by placing reliance upon a report of year 2018, which was neither confronted to petitioner nor was ever part of record based upon which orders have been passed - This case clearly highlights the manner in which quasi-judicial authorities and appellate authorities are working under GST Act - The manner of disposal can neither be appreciated nor accepted - Said authorities while passing the order impugned have miserably failed to act in light of spirit of GST Act - The stand of Central Government before this Court is equally not appreciable as on one hand they are alleging that excess goods were found for which the petitioner is liable to pay duty and on the other hand there is justification to the order passed and impugned in present petition - Finding the orders contrary to mandate of Section 29 and 30 of the Act as well as principles of adjudication by quasi-judicial authorities, the orders impugned cannot be sustained and are set aside - The registration of petitioner shall be renewed forthwith - For the manner in which petitioner has been harassed since 20.05.2020, State Government is liable to pay a cost to the petitioner within a period of two months, failing with the petitioner shall be entitled to file a contempt petition: HC
- Writ petition allowed: ALLAHABAD HIGH COURT
2023-TIOL-919-HC-P&H-GST
Afflatus International Vs UoI
GST - Refund of unutilized input tax credit on inputs or input services used in making zero-rated supplies - Petitioner is seeking writ of mandamus directing respondents to release the refund due to the petitioner along with interest.
Held: Stand of respondents is that since the amount was refunded to the petitioner on the very next day after issuing acknowledgement in Form RFD-02, there was no delay in issuing refund to the petitioner - Payment of refund has been made after following the guidelines issued by CBEC circular No. 17/17/2017-GST and the moment the petitioner gave his application manually with earlier ARN after reversing input tax credit in the electronic credit ledger on 11.04.2019 and intimated the same to the proper officer - The proper officer issued acknowledgement in form RFD-02 on the same date and on the very next day i.e. 12.04.2019 refund was issued - Payment has been made as per the procedure given in the circular No. 94/13/2019-GST dated 28.03.2019 - Hence, there is no delay on the part of the respondents in making payment of refund – Petition dismissed: High Court [para 6, 7, 8]
- Petition dismissed: PUNJAB AND HARYANA HIGH COURT
2023-TIOL-918-HC-ALL-GST
Bhawani Traders Vs State of UP
GST - Petition is aggrieved by penalty order passed by Assistant Commissioner in Form MOU-09 under Section 129(1) (b) of Goods and Services Tax Act, 2017 whereby and whereunder penalty has been levied upon petitioner by not treating the petitioner to be the owner of goods - Admittedly, goods were duly accompanied by tax invoice, e-way bill and bilty issued in the name of petitioner as consignor and the goods were in transit through State of U.P. during its movement from Kolkata to New Delhi and as such, there was no intention to evade tax - It is further contended that petitioner is owner of goods and is ready and willing to deposit penalty under protest under Section 129(1) (a) to get the goods released considering the perishable nature of goods and diminishing of its value substantially with onset of monsoons - Expressing full agreement with the view expressed by Coordinate Bench of Court in case of M/s Sahil Traders , impugned penalty order is set aside - The revenue is directed to pass fresh order treating the petitioner to be eligible to the benefit of Section 129(1) (a) of the Act - Petitioner submits that revenue has already passed an order of assessment treating the petitioner to be entitled to benefit under Section 129(1) (a) - Petitioner shall be at liberty to avail any remedy available to it to assail the assessment order: HC
- Writ petition allowed: ALLAHABAD HIGH COURT
2023-TIOL-917-HC-KOL-GST
Suncraft Energy Pvt Ltd Vs Asstt. Commissioner of State Tax
GST - Intra Court appeal is directed against the order passed in WPA 12153 of 2023 dated 21.06.2023 - Appellant had impugned the order dated 20.02.2023 passed by the Assistant Commissioner by which the first respondent reversed the input tax credit availed by the appellant under the provisions of the Act, 2017 - Single Bench by the impugned order disposed of the writ petition by directing the appellant to prefer a statutory appeal before the appellate authority - In the show cause notice dated 06.12.2022, the allegation is that the fourth respondent has not shown the Bill in GSTR 1 and hence the appellant is not eligible to avail the credit of the input tax as per Section 16(2) of the WBGST Act, 2017 as the tax charged in respect of such supply has not been actually paid to the Government.
Held: What Bench finds is that the first respondent has not conducted any enquiry on the fourth respondent supplier more particularly when clarification has been issued where furnishing of outward details in Form GSTR 1 by a corresponding supplier and the facility to view the same in Form GSTR 2A by the recipient is in the nature of taxpayer facilitation and does not impact the ability of the taxpayers to avail input tax credit on self-assessment basis in consonance with the provisions of Section 16 of the Act - The first respondent, without resorting to any action against the fourth respondent who is the selling dealer, has ignored the tax invoices produced by the appellant as well as the bank statement to substantiate that they have paid the price for the goods and services rendered as well as the tax payable thereon, the action of the first respondent has to be branded as arbitrary - demand raised on the appellant dated 20.02.2023 is not sustainable – Order is set aside with a direction to the appropriate authorities to first proceed against the fourth respondent and only under exceptional circumstance, as clarified in the press release issued by the Central Board of Indirect Taxes and Customs (CBIC), then and then only proceedings can be initiated against the appellant: High Court [para 8, 9, 10]
- Appeal allowed: KOLKATA HIGH COURT
2023-TIOL-916-HC-DEL-GST
HT Media Ltd Vs UoI
GST - The petitioner impugns the SCN issued under Section 73 of Delhi GST which alleges that "tax has not been paid or short paid or refund has been released erroneously or input tax credit has been wrongly availed", but does not disclose any detailed reasons for proposing the demand - Curiously, petitioner was called upon to appear for a personal hearing on a date earlier than the time provided to file a reply - The revenue had also issued another Notice in Form GST DRC-01 which was accompanied by an audit report - The petitioner responded to said SCN and submitted its reply - They also requested the concerned officer to afford the petitioner an opportunity of being heard - Admittedly, concerned officer did not afford the petitioner any further opportunity of being heard and passed the impugned order raising a demand - Said order under Section 73 of the Act neither deals with submissions made by petitioner in its reply nor mentions any reason for raising said demand - Thus court cannot accept the contention that petitioner did not opt for a personal hearing or waived its right - It is apparent that concerned officer has not considered the reply furnished by petitioner - The court is also unable to appreciate the procedure of affording petitioner an opportunity to be heard prior to expiry of time afforded to him for responding to impugned SCN - An opportunity to be heard is not required to be a mere formality - It is to enable the noticee to canvas its case before concerned officer - Thus, it is apposite that noticee be permitted to file a reply prior to being afforded a hearing - Impugned order cannot be sustained - However, it is apparent that petitioner has no doubt as to why a further demand is proposed to be raised - Admittedly, it is based on observations in audit report provided to the petitioner - Concerned officer is directed to consider the petitioner's response and pass a fresh order after affording the petitioner due opportunity to be heard: HC
- Petition allowed: DELHI HIGH COURT
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