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2023-TIOL-1398-HC-DEL-GST
Vodafone Idea Ltd Vs UoI
GST - Petitioner is aggrieved by rejection of its claims for refund of IGST in respect of telecommunication services rendered by the petitioner pursuant to agreements with Foreign Telecom Operators (FTOs) - Refund claims were rejected on two grounds viz. First, that the services provided by the petitioner in respect of which refund of IGST was claimed did not as qualify export of services and second, that the claims preferred were beyond the period of two years from the relevant dates and therefore, were barred by limitation.
Held: In the present case, the petitioner claims that it had received payments in all cases after the invoices were raised - Thus, the date on which payments had been received from FTOs would be the relevant date for the purpose limitation under Section 54(1) of the CGST Act - It is not necessary to examine this issue in any details as after the impugned order was rendered, the CBIC had issued a notification (GST Notification 13/2022-Central Tax dated 05.07.2022) relaxing the period of limitation, inter alia, for filing a claim for refund under section 54(1) of the CGST Act and in terms of the said Notification, the period commencing from 01.03.2020 to 28.02.2022 is required to be excluded for computing the period of limitation, therefore, the controversy whether the petitioner had made the claims within the period of limitation, is no longer a contentious issue - As regards whether the services qualify as export of service, it is the petitioner's case that FTOs are recipient of services in question and since they are located outside India, the place of supply of services is outside India in terms of Section 13 of the IGST Act - Concededly, this issue is covered by the decision of the Co-ordinate Bench of this Court in Verizon Communication India Pvt. Ltd. = 2017-TIOL-1863-HC-DEL-ST - It is apparent that the provisions for ascertaining the place of supply of services under Rule 6A of the ST Rules are similar to Section 2(6) of the IGST Act inasmuch as the services will be treated as export of services when (a) the provider of service is located in the taxable territory, (b) the recipient of the service is located outside India, and (d) the place of provision of the service is outside India - There is no cavil that the decisions rendered on the question of export of services in the context of Rule 3 of the Export of Services Rules, 2005 are also applicable to the controversy in question - Present petition is allowed and the respondents are directed to refund the amounts as claimed: High Court [para 18, 19, 22, 23, 25]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-1397-HC-DEL-GST
Aksmd Rechargeable Vehicles Pvt Ltd Vs CCT & GST
GST - Refund of accumulated ITC due to inverted tax structure - Petitioner prays that the respondent be directed to process the refund in terms of Order-in-Appeal dated 06.06.2023 - Petitioner has handed over a photocopy of the order dated 09.10.2023 whereby the refund of Rs.8,76,636/- has been sanctioned, however, with a caveat that the same is subject to the review order and to the outcome of any appeal that may be preferred by the Revenue before the Appellate Tribunal as and when the same is constituted.
Held: Since the petitioner has prevailed before the Appellate Authority, the Order-in-Appeal dated 06.06.2023 is required to be implemented. It is seen that although the Revenue has processed the petitioner's claim for refund of Rs.8,76,636/-, no interest has been provided - Respondent is directed to disburse interest, if any, payable to the petitioner in accordance with law within a period of two weeks - Petition disposed of: High Court [para 6 to 8]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1396-HC-RAJ-GST
Power And Instrumentation (Guj.) Ltd Vs CCGST Commissionerate
GST - It is the case of the petitioner-company that despite objection being submitted by it, the respondents have forced it to deposit an amount of Rs.40,00,000/- by way of filing form GST DRC-3 under Section 73(5) on 16.12.2022 and are issuing summons from time to time intimating the petitioner that it is liable to pay GST of Rs.5,51,49,553/- in respect of short payment of GST on taxable supply to AVVNL for the period May, 2018 to September, 2021 - It is the main contention of the petitioner that without adjudication of the question in accordance with law, the respondents cannot force the petitioner to pay the amount as demanded by them - It is contended that it is mandatory for the respondents to adjudicate under Section 73 of the CGST Act, 2017 and thereafter it can proceed further as per the result of the adjudication but prior to that, the respondents cannot force the petitioner to pay the amount as adjudicated by them illegally - Respondents are claiming that they have not forced the petitioner to deposit the amount of Rs.40,00,000/-, rather the petitioner-company has deposited the amount voluntarily under Section 73(5) of the CGST Act through DRC-03 dated 16.12.2022 and further voluntarily paid an amount of Rs.10,00,000/- vide GST DRC-03 dated 03.04.2023 - Respondents has frankly admitted that the adjudication regarding the liability of the petitioner-company for short payment of GST on taxable supply to AVVNL for the period May, 2018 to September, 2021 is still to be finalised as per the provisions of Section 73 of the CGST Act.
Held: Writ petition is disposed of while directing the respondents not to insist the petitioner-company to pay the amount of Rs.5,51,49,553/-, as indicated in the impugned notices, till final adjudication is taken place under Section 73 of the CGST Act - It is also directed that the amount of Rs.50,00,000/- deposited by the petitioner-company through forms GST DRC-03 dated 16.12.2022 and 03.04.2023 shall remain subject to the final adjudication of the matter under Section 73 of the CGST Act 2017 : High Court [para 16]
- Petition disposed of: RAJASTHAN HIGH COURT
2023-TIOL-1395-HC-AHM-GST
Prima Pradeep Mhatre Vs Commissioner of State Tax
GST - Non-payment of GST - Petitioner seeks a direction to the department to release the property seized; to quash and set aside the orders of the Dy. Commissioner; that no coercive action shall be taken by the respondents in relation seized property including confiscation or auction.
Held: On 16.09.2023, the respondent no. 2 - State Tax Officer, Surat in presence of respondent no. 3 - Assistant Commissioner of State Tax, Mumbai has handed over the items viz. Cash, Jewellery, Watches to the petitioners - Petitioners have filed an undertaking not to dispose of, sell, transfer, or otherwise part with possession of the aforementioned cash, jewellery, Watches, and other valuables until the final disposal of the case - In view of the above facts and developments which have taken place after the order dated 15.09.2023, the petition is disposed of by directing that the petitioners shall deposit an amount of Rs.23,82,620/- in a separate bank account of any Nationalized Bank which in turn shall be invested in a fixed deposit in the name of the petitioners, initially for a period of one year and which shall be renewed from time to time - It is clarified that this court has not expressed any opinion on merits of the case and all the contentions of both the sides are kept open to be raised before the appropriate forum - Petition disposed of: High Court [para 4, 5, 6]
- Petition disposed of: GUJARAT HIGH COURT
2023-TIOL-1394-HC-AP-GST
Sakthi Steel Industries India Pvt Ltd Vs Appellate Addl.Commissioner
GST - Petitioner seeks a writ of mandamus declaring the order in appeal dated 07.07.2023 passed by 1st respondent confirming the order dated 20.04.2023 passed by 2nd respondent cancelling the GST registration of the petitioner as illegal, arbitrary and to set aside the same - 2nd respondent passed impugned order dated 20.04.2023 cancelling the GST registration of the petitioner accepting the field inspection report of the Deputy Assistant Commissioner alleging that the parent company and petitioner's company doing the business in the same premises which is not maintainable; the registered business was not genuine; the taxpayer obtained registration without any independent place of business and falsely claimed to have conducted business at the premises of M/s. Sakthi Ferrous Alloys India Private Limited which is not suitable for conducting the taxpayer's stated business activities involving TMT bars and iron scrap; that the taxpayer may be engaged in bill trading without proper receipt and supply of goods.
Held: Show cause notice dated 20.03.2023, which is the precursor for cancellation of registration, only reveals that the registration of the petitioner is liable to be cancelled for the reason that the same has been obtained by means of fraud, wilful misstatement or suppression of facts" - It is needless to emphasise that the show cause notice is as vague and dubious as it could be without mentioning the requisite particulars constituting the alleged fraud, wilful misstatement and suppression of facts - The elements of fraud, wilful misstatement and suppression of facts may be of varied types - Hence, the nature of fraud, wilful misstatement and suppression of facts have to be sufficiently described so as to give an opportunity to the taxpayer as otherwise, it will be difficult for him to submit an apt and appropriate reply / objections - The public authorities must know that the issuance of show cause notice has an avowed purpose of stating the formal grounds of accusation so as to invite proper explanation or reply from the person who is accused of charges - This process is based on equitable principle of natural justice that no man should be condemned of unheard - Mere issuance of the show cause notice devoid of requisite particulars does not amount to proper compliance of the requirement - In that context, it should be mentioned that the show cause notice dated 20.03.2023 has flagrantly violated the principles of natural justice - Therefore, the very foundation for invocation of cancelation is feeble as it has no legal sanctity - Even if the place of business of the petitioner, for argument sake, is not conducive for its business, how the said fact can be treated as sufficient to conclude that the petitioner obtained registration by committing fraud or wilful misstatement or suppression of facts - It should not be forgotten that whether the petitioner is involved in bill trading without proper receipt and supply of goods can be determined only after thorough examination of relevant records such as account books, e waybills, transportation particulars, toll plaza particulars etc. - However, in spite of the petitioner's submission that the complete details of purchases and sales can be verified at any point of time, the 2nd respondent without resorting to such logical and legal exercise, was simply carried away by the recommendations of the Inspecting Authority i.e., Deputy Assistant Commissioner who on a conjecture suspected that the taxpayer may be engaged in bill trading without proper receipt and supply of goods, for which there is no proper basis - Therefore, the impugned registration cancellation order is not sustainable in the eye of law - Appellate authority also committed the same mistake in confirming the order of the 2nd respondent without considering a logical question as to how the mere commonality of the location of the petitioner and parent company itself is sufficient to hold that the petitioner has committed fraud in obtaining registration and involved in bill trading, without the scrutiny of the relevant records - Appellate order is also liable to bet set aside - Writ Petition is allowed and the cancellation order dated 20.04.2023 passed by 2nd respondent and the appellate order dated 07.07.2023 passed by 1st respondent are set aside with a direction to the respondent authorities to restore the GST registration of the petitioner within one week: High Court [para 7, 10, 11, 12]
- Petition allowed: ANDHRA PRADESH HIGH COURT
2023-TIOL-1393-HC-DEL-GST
Shashi Kant Gupta And Akshy Gupta Vs State Through Incharge Economic Office Wing Section-VII
GST - Applicants Shashikant Gupta and Akshy Gupta seek anticipatory bail - F acts of the case are that complainant Sh. Rajiv Jain had filed a complaint at EOW alleging therein that he is a Chartered accountant by profession and when he downloaded his form 26AS from Income Tax portal, he came to know that a GST number has fraudulently been generated in the name of M/s Madhu Enterprises using his PAN number - The complainant further alleged that using this fraudulently obtained GST number, the accused has shown transactions worth Rs. 14.80 Crores in the short duration of July 2019 to November 2019 - Accordingly, the case was registered and investigation was taken up.
Held: A s per investigation, the mobile number with which the said M/s Madhu Enterprises was registered with the GST Department belonged to the aforesaid Sanjay Kumar, who is stated to be a security guard of the applicants - The investigation from the GST Department has also revealed that the aforesaid M/s Madhu Enterprises made business transactions worth crores of rupees with three entities of which the present applicants were director and despite that said fact, the applicants have been evading from giving details of the said transaction - Judgment of Supreme Court in Pankaj Bansal ( 2023-TIOLCORP-06-SC-PMLA ) relied upon by the applicants has no application to the facts of the present case as the answers being given during investigation of the case, are on the face of it, totally evasive - Although the stand of the applicants is that the documents are with the GST Department, Jamshedpur, it is difficult to believe that the applicants are not able to give the details of contact persons of the aforesaid M/s Madhu Enterprises with whom they have entered into transactions worth crores - Court is of the considered opinion that custodial interrogation of the applicants is necessary to unearth entire chain of transactions linked with M/s Madhu Enterprise at the behest of the present applicants and the entities in their control - The present applications are accordingly dismissed at this stage and disposed of accordingly - I nterim protection granted to Shashi Kant Gupta (applicant in BAIL APPLN. 3366/2022) vide order dated 14.11.2022 and Akshy Gupta (applicant in BAIL APPLN. 926/2023) vide order dated 21.03.2023, is withdrawn: High Court [para 11, 12, 13, 15, 16, 18]
- Applications dismissed: DELHI HIGH COURT
2023-TIOL-1392-HC-DEL-GST
Simran Chandwani Vs Pr.CCGST
GST - Petitioner is aggrieved by the denial of refund of the unutilized Input Tax Credit (ITC) on account of the inverted duty structure - Inter alia, the department alleges that the claim for the ITC could not exceed more than 20% of the eligible credit in respect of the invoices and debit notes which have not been uploaded by the supplier; that the petitioner had violated the said condition as laid down in Rule 36(4) of the CGST Rules in respect of her claims for the month of October, 2020 and November, 2020 as she had availed excessive ITC amounting to Rs.1,03,210.09; that said supplier had classified the goods supplied as HSN 6404, which was the code for the finished products (complete shoes); that supplier had charged GST at the rate of 18% and, therefore, the petitioner's claim for the inverted duty structure in respect of the said goods is questionable - Both the lower authorities rejected the claim for refund, hence the petition.
Held : Although the petitioner has the remedy of an appeal before the Appellate Tribunal, the said remedy is illusory as the Appellate Tribunal has not yet been constituted, therefore, present petition is entertained - Undisputedly, the supplier had charged the GST at the rate of 18% which is chargeable on PVC straps - According to the petitioner, the petitioner had produced a certificate from the said supplier acknowledging that it had incorrectly classified the goods under HSN 6404 instead of HSN 6406 - Adjudicating Authority had not accepted the petitioner's contention while observing that the petitioner had obtained the declaration just to "shelter their vicious thinking to gain cash refund" - Bench finds that the aforesaid reasoning is based on mere suspicion and surmises and not on cogent material - Bench holds that there is no ground to doubt the petitioner's explanation that the six invoices incorrectly mentions the classification of the goods and, therefore, the petitioner ought not to be denied the benefit of the accumulated ITC - Insofar as the allegation of excess credit having been availed, the petitioner states that they did not submit the relevant documents to establish this claim, therefore, the matter is remanded to the Adjudicating Authority to consider the petitioner's claim regarding availing ITC in excess of the limit as prescribed under Rule 36(4) of the CGST Rules - Fresh order is to be passed within a period of eight weeks - Petition disposed of: High Court [para 16, 17, 24, 25]
- Petition disposed of: DELHI HIGH COURT |
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