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2023-TIOL-1457-HC-MP-GST
Rakesh Kumar Gupta Vs UoI
GST - Applicant, who has been arrested in connection with offence punishable u/s 132(1)(b) and (c) of the Act, 2017 has sought for grant of bail - Applicant argues that he is an innocent person and has been falsely implicated; that the total GST liability of the applicant for the period between 2021 to 2023 is less than five crores as per the information available on the GST portal, thus, even if it is assumed for the sake of argument that any discrepancy exists, then also the amount being less than five crores, no arrest of the applicant was justified.
Held : Facts available in case diary indicates that applicant has co-operated in the investigation by making himself available as and when summons issued against him and his statement was also recorded even in the jail; that the respondent has not expressed any apprehension of flight risk for the applicant and has also not moved any application for police remand so also has not expressed any fear of tampering with the evidence or influencing the witnesses - Considering the overall facts and circumstances of the case application is allowed and it is directed that the applicant be released on bail on furnishing a personal bond in the sum of Rs.10,00,000/- with two local solvent sureties in the like amount to the satisfaction of the trial Court/committal Court - and subject to compliance of the conditions as laid down: High Court
- Application allowed: MADHYA PRADESH HIGH COURT
2023-TIOL-1456-HC-PATNA-GST
Cohesive Infrastructure Developers Pvt Ltd Vs CBIC
GST - Petitioner seeks multifarious reliefs - Inasmuch as the petitioner is desirous of availing statutory remedy of appeal before the Appellate Tribunal but due to non-constitution of the Tribunal, the petitioner is deprived of the same; that the petitioner is also prevented from availing the benefit of stay of recovery of balance amount of tax in terms of Section 112 (8) and (9) of the B.G.S.T Act upon deposit of the amounts as contemplated under Sub-section (8) of Section 112 - Respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act.
Held: Court is inclined to dispose of the petition in the following terms - Subject to deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section 107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act - The petitioner cannot be deprived of the benefit, due to non-constitution of the Tribunal by the respondents themselves - The recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed: High Court [para 6]
- Petition disposed of: PATNA HIGH COURT
2023-TIOL-1455-HC-DEL-SERVICE
Govind Krishna Dixit Vs UoI
Service - Tribunal has dismissed the OA filed by petitioner, therefore, the present petition - Petitioner has inter alia sought the following reliefs viz. Quash / set aside the impugned order No.18/2013 dated 10.06.2013; direct the Respondents to immediate stop the recovery of 1/3rd of gross salary of the Applicant being contrary to law; direct the Respondents to pay to the Applicant the salary that he is entitled to be paid in the grade and post of Commissioner that he is presently holding.
Held: Petitioner was issued a sanction order dated August 23, 2002, permitted by the respondents to pursue a course in Master of International Policy & Practice at The George Washington University, USA - This was one year course commencing from September 03, 2002 - On completion of the said course, the petitioner did not return back to the country to join his duties, instead he joined another course of Master of Law in the same University, for which no prior permission was obtained from the respondents - He finally joined the respondents on August 21, 2009, after a gap of almost 7 years - He was accordingly proceeded under the Rule 3(1) CCS (Conduct) Rules, 1969 - A charge sheet was issued to the petitioner which resulted in a final order dated June 10, 2013 - The charge sheet resulted in the charges as proved, should be taken to its logical end and for that purpose the order dated June 10, 2013 was passed whereby, the Disciplinary Authority has imposed the penalty on the petitioner - Said order was not given effect to for almost 4 years when the order dated November 16, 2017 was issued - It appears that the same was issued on realising that the order dated June 10, 2013 has not been implemented - The misconduct having been proved, the same need to be taken to its logical end by imposing penalty and giving effect to the same - Tribunal is justified in dismissing the OA in the manner it has done in the impugned order - Petition dismissed: High Court [para 6, 15, 16, 18]
- Petition dismissed: DELHI HIGH COURT
2023-TIOL-1454-HC-ORISSA-CT
Aryan Ispat And Power Pvt Ltd Vs State of Odisha
Sales Tax - Petition is filed under Section 9(2) of the Central Sales Tax Act, 1956 read with Section 24 of the Odisha Sales Tax Act, 1947 - Question of law is Whether in the facts and circumstances of the case, the Division Bench of the Orissa Sales Tax Tribunal was justified in upholding the imposition of penalty under Section 10(d) of the CST Act while holding that Petitioner was served with show cause notice under section 10(b) of the CST Act and not under Section 10(d) of the CST Act.
Held: Section 10(b) of the CST Act uses the words "falsely represents" which would mean something done knowingly having knowledge - If anything is done bona fide , such act cannot be said to be false representation - The language of Form C shows that declaration is required to be made, that the goods are covered by registration certificate, therefore, while issuing Form C in respect of the goods, it is incumbent upon the dealer to be clear that the goods in respect of which Form C is being issued is covered under the registration certificate - In the case at hand, the petitioner was not only a registered dealer, but also authorised to purchase cement as the said commodity stood incorporated in the registration certificate on the date of transactions during the period 2004-05 - Thus, finding of mens rea is a condition precedent for levying penalty under Section 10(b) read with Section 10A, which is found to be absent from a bare reading of the Order of the Tribunal - In amplifying what has been already referred to and stated above, it can further be stated that the use of the word 'falsely' in Section 10(b) of the CST Act implies that the person making the representation knew that the certificate of registration does not cover that item but knowing fully well that it does not, states that it is covered - The expression 'falsely represents' clearly leads to show that unless it is established that the conduct of the dealer was contumacious or that there was deliberate violation of the statutory provision or wilful disregard thereof, invocation of penal provisions under Section 10A of the CST Act is unwarranted - In the instant case, since cement finds place in the certificate of registration, it cannot be said that the petitioner has falsely represented by purchasing goods at concessional rate of tax on the strength of declaration in Form C - It was for the department to prove that the representation was false to the knowledge of the petitioner-dealer - Court holds that the commodity, cement, being specified in the certificate of registration at the time of effecting inter-State purchase during the period 2004-05, there was no false representation by the petitioner and the Revenue has not discharged its burden by clearly establishing that the purchases were not made bona fide on the strength of declaration in Form C - It is also noteworthy to mention that, when the notice alleging offence under Section 10(d) was served after the scheduled date calling upon the petitioner to submit reply and subsequent notice specifying commission of offence under Section 10(b) of the CST Act was responded to by the petitioner, the Sales Tax Officer was not correct in rendering finding as if the petitioner was held guilty of offence under Section 10(d) - Therefore, the penalty imposed under Section 10A of the CST Act cannot be sustained - Furthermore, as is apparent from the Order of the first appellate authority, the Sales Tax Officer himself appears to have recorded that the notice dated 31.12.2005 should have been issued for alleged commission of offence under Section 10(b), but not under Section 10(d) of the CST Act - Observation of the Sales Tax Tribunal, that there was "no absence of mens rea to constitute an offence under Section 10(b) of the CST Act", suffers from infirmity, inasmuch as no reason was assigned thereto - Therefore, the Order dated 09.12.2013 of the Sales Tax Tribunal setting aside the order of the first appellate authority and remanding the matter to the Sales Tax Officer for assessment afresh is uncalled for - Order dated 09.12.2013 of the Sales Tax Tribunal is hereby set aside and, thereby the Order dated 28.04.2007 of the Assistant Commissioner of Sales Tax, Sambalpur Range, Sambalpur is restored - Petition disposed of: High Court [para 7.10, 7.12, 7.14, 8.5, 9, 9.1, 9.3]
- Petition disposed of: ORISSA HIGH COURT |
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