2023-TIOL-123-SC-VAT
State of Gujarat Vs Saw Pipes Ltd
Whether where it is found that a dealer is deemed to have failed to pay tax computed as per Section 45(5) of the Gujarat VAT Act, then the penalty is levied automatically & there is no discretion with the AO to dither or levying penalty or to reduce its quantum - YES: SC
- Appeal allowed: SUPREME COURT OF INDIA
2023-TIOL-971-HC-AP-GST
Arhaan Ferrous And Non Ferrous Solutions Pvt Ltd Vs Deputy Asstt. Commissioner (ST)
GST - Petitioner 1 is the owner of the goods and petitioner 2 is the owner of the vehicle and they seek writ of mandamus declaring the action of the 1st respondent in detaining their goods and vehicle while in transit with valid invoices as illegal and consequently request for setting aside of Form GST MOV-01 and confiscation notices in form GST MOV-10.
Held: It is clear [from Section 68, Rule 138A] that the proceedings for detention of goods can be initiated while the goods are in transit in contravention of provisions of the CGST/APGST Act - In our considered view, though the 1st respondent may initiate proceedings against the 4th respondent U/s 130 of the Act in view of his absence at the given address and not holding any business premises at Vijayawada, however, he cannot confiscate the goods of the 1st petitioner merely on the ground that the 1st petitioner happens to purchase goods from the 4th respondent - Even assuming that the petitioners, particularly the 1st petitioner partakes in the enquiry proceedings against the 4th respondent, his responsibility will be limited to the extent of establishing that he bonafidely purchased goods from the 4th respondent for valuable consideration by verifying the GST registration of the 4th respondent available on the official web portal and he was not aware of the credentials of the 4th respondent - Further, he has to establish the mode of payment of consideration and the mode of receiving of goods from the 4th respondent through authenticated documents - Except that he cannot be expected to speak about the business activities of the 4th respondent and also whether he obtained GST registration by producing fake documents - In essence, the petitioners have to establish their own credentials but not the 4 th respondent - In that view, the 1st respondent is not correct in roping the petitioners in the proceedings initiated against the 4th respondent without initiating independent proceedings U/s 129 of CGST/APGST Act against the petitioners - As the 1st petitioner claims to have purchased goods from the 4th respondent, whose physical existence in the given address is highly doubtful as per the enquiry conducted by the Joint Commissioner (ST), Kurnool, the 1st petitioner as observed supra, owes a responsibility to prove the genuineness of the transactions between him and the 4th respondent - Therefore, the 1st respondent can initiate proceedings U/s 129 of CGST/APGST Act against the petitioners and conduct enquiry by giving opportunity to the petitioners to establish their case - Writ petitions are accordingly disposed of by giving liberty to the 1st respondent to initiate proceedings against the petitioners U/s 129 of CGST / APGST Act, 2017 within two weeks - In the meanwhile, the 1st respondent shall release the detained goods in favour of 1st petitioner on his deposit of 25% of their value and executing personal bond for the balance and he shall also release the vehicles in favour of the 2nd petitioner in the respective writ petitions on their executing personal security bonds for the value of the vehicles as determined by concerned Road Transport Authority - Petitions disposed of: High Court [para 16, 17]
- Petitions disposed of: ANDHRA PRADESH HIGH COURT
2023-TIOL-970-HC-AHM-GST
Anjani Cotton Industries Vs Pr. CCGST
GST - Challenge in this petition is to communication dated 10.7.2023 in form DRC-22 whereby the current account of the petitioner held with Bank of Baroda is provisionally attached.
Held: It appears that, on more than one occasion, the Court has deprecated the practice of the respondent authorities in seeking to enforce tax liabilities by provisionally attaching cash credit account - Issue notice to the respondent/s, returnable on 17.8.2023 - Till the returnable date, there shall be ad-interim relief in terms of para 9(B): High Court [para 5, 6]
- Interim relief granted: GUJARAT HIGH COURT
2023-TIOL-969-HC-KERALA-GST
S R Traders Vs Addl. Director General
GST - Petition filed against impugned orders that provisionally attached immovable properties and bank accounts of appellant on the contention that said orders were passed without application of mind and in flagrant violation of certain provisions of law under Central Goods and Service Tax Act and Rules - The value of immovable properties attached is not sufficient to meet the demand contained in SCNs, appellant cannot be financially choked to the extent of preventing it from carrying on legitimate business activities while simultaneously defending the proceedings initiated by respondents against him - The ends of justice would require court to modify the judgment of single Judge and permit the appellant to operate two of its bank account pending finalisation of adjudication proceedings by respondents so that appellant can carry on its legitimate business activities even while defending the proceedings initiated against him by respondents - Accordingly, appellant shall be permitted to operate the aforesaid accounts during pendency of adjudication proceedings initiated at the instance of respondents and until the culmination thereof: HC
- Writ petition disposed of: KERALA HIGH COURT
2023-TIOL-968-HC-ORISSA-GST
Shalimar Chemical Works Pvt Ltd Vs CCT & GST
GST - The petitioner has challenged audit report contending that certain observations have been made in audit report to which the petitioner is not liable to pay the amount - On the basis of such audit report, notice under Section 65 (6) of the Act (Annexure-5) has been issued, where petitioner has been directed to discharge its statutory liabilities as per provisions of the Act and Rules made thereunder, failing which proceedings as deemed fit may be initiated against it under provisions of the Act - The petitioner has not come against any order passed by authority concerned - In any case, if petitioner shall have any grievance with regard to audit report and subsequent order in connection with notice under Annexure-5, then he may raise the objection before assessing authority - Petitioner shall get a chance to have its say in assessment proceeding - Thus, petition at this stage is premature one, for which Court is not inclined to entertain the same: HC
- Writ petition disposed of: ORISSA HIGH COURT
2023-TIOL-110-AAR-GST
Tata Autocomp Systems Ltd
GST - Deduction of amount by the applicant from the salary of the employees who are availing facility of food provided in factory premises would not be considered as a 'supply' under the provisions of section 7 of the Act, 2017 : AAR
GST - Input Tax Credit (ITC) will be available to the applicant on GST charged by the service provider in respect of canteen facility provided to its employees other than contract employees working in their factory, in view of the provisions of Section 17(5)(b) as amended effective from 1.2.2019 and clarification issued by CBIC vide circular No. 172/04/2022 -GST dated 6.7.2022 read with provisions of section 46 of the Factories Act, 1948 and read with provisions of Gujarat Factory Rules, 1963 - ITC is restricted to the extent of the cost borne by the applicant for providing canteen services to its employees, but disallowing proportionate credit to the extent embedded in the cost of goods recovered from such employees: AAR
GST - Services by way of supply of non air-conditioned bus transport facility provided by TSPs would not be construed as 'supply of service' by the applicant to its employees under the provisions of section 7 of CGST and GGST: AAR
GST - ITC is available to the applicant on GST charged by the TSPs for providing the non air-conditioned bus transport services, however, subject to the condition that the buses hired are more than 13 seater w.e.f 1.2.2019 - ITC on the above is restricted to the extent of the cost borne by applicant for providing transportation services to its employees, but disallowing proportionate credit to the extent embedded in the cost of goods recovered from such employees: AAR
GST - No GST is applicable on salary deducted in lieu of notice period from the full and final settlement of the employees leaving the company without completing or serving the complete notice period as specified in the appointment letter: AAR
- Application disposed of: AAR
2023-TIOL-21-AAAR-GST
IVL India Environmental R And D Pvt Ltd
GST - AAR held that s ince support services are being supplied by IVL Sweden, located in a non-taxable territory to the applicant IVL India, the whole of integrated tax leviable under section 5 of the Integrated Goods and Services Tax Act, shall be paid on reverse charge basis by the recipient of such services i.e. the applicant; that, the applicant has to pay GST on the money proceeds which is being transferred to IVL Sweden - Aggrieved by this order, the present appeal.
Held: It can be said that without the services of IVL Sweden, it would not have been possible for the Appellant to bag the contract from MCGM to carry out project management consultancy work - In fact, the contract has been awarded to the Appellant based on the credentials and work experience of IVL Sweden - The aforesaid observations are also supported by the Appellant' contentions wherein it has been contended that all the responsibility of the performance of the work lie with IVL Sweden as IVL Sweden have got all the expertise and work experience to handle such massive projects - Thus, it can be safely concluded that the Appellant is availing support services from IVL Sweden to carry out the required PMC work as per the contract entered with MCGM -Since, in this case, the recipient of services is located in India and supplier of the services, namely, IVL Sweden, is located abroad, therefore, Section 13 of IGST Act, 2017 will be applicable to determine the place of supply and the default provisions of Section 13(2) will cover the present case - Thus,the place of supply of services in the present case will be the location of recipient of services, i.e., India -Service under question is import of services and the same will beliable for payment of IGST at the hands of the recipient of services in terms Entry 1 of the Notification No. 10/2017 -I.T.(Rate) dated 28.06.2017 - All the case laws relied upon by the appellant are clearly distinguishable - Order of AAR is upheld and the Appeal is rejected: AAAR
- Appeal rejected: AAAR |
