2023-TIOL-1565-HC-DEL-GST
Sai Aluminium Exim Vs Pr.CCGST
GST - Petitioner essentially seeks to challenge the cancellation of its GST registration - Petitioner claims that it had changed its principal place of business in the year 2022 and applied on 11.06.2022 for amendment in its GST registration to reflect the change in its principal place of business - Petitioner's application was rejected by an order dated 09.05.2023 on the ground that the requisite information was not submitted - Thereafter on 01.09.2023, a SCN was issued proposing to cancel its GST registration for the reason that registration was obtained by means of fraud, wilful misstatement or suppression of facts - It appears from the petitioner's GST portal page, although not specifically stated in the SCN, that the petitioner's GST registration was proposed to be cancelled on the basis that it was not found existent at the principal place of business - Thereafter, the petitioner's GST registration was cancelled by an order dated 14.09.2023 and which merely states that the impugned order has been passed with reference to the SCN -It is also material to note that the petitioner's GST registration got cancelled with the retrospective effect from 01.07.2017 even though the SCN did not propose the retrospective cancellation.
Held: Petitioner's contentions that the SCN did not specify any reason for proposing to cancel the petitioner's GST registration, and that the impugned order cancelling its registration is void as not informed by reason, is merited - Bench considers it apposite to set aside the order dated 09.05.2023 whereby the petitioner's application for amendment of the GST registration was rejected - The officer concerned shall satisfy that the petitioner is carrying on the business at its principal place of business as claimed by the petitioner - In the event the officer concerned is so satisfied, the order cancelling the petitioner's GST registration shall be revoked - Petition disposed of: High Court [para 12 to 14]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1564-HC-DEL-GST
Balajee Plastomers Pvt Ltd Vs Commissioner of Delhi GST
GST - Petitioner impugns the order dated 29.01.2021 whereby the petitioner's GST registration was cancelled with retrospective effect from 01.07.2017 - It is the petitioner's claim that it continued to carry on its business and complied with all the provisions of the CGST Act since its registration, however, their business suffered adversely in the year 2019 and consequently, they decided to surrender GST registration and filed an application for the cancellation on 28.11.2019 - However, the petitioner's application for cancellation of its GST registration was rejected on 08.07.2020 - Once again, they filed an application for cancellation of GST registration with effect from 28.11.2019 and which application was rejected by order dated 05/11/2020 - Later, a Show Cause Notice dated 13.01.2021 was issued proposing to cancel the petitioner's GST registration for the reason that the petitioner had not filed the returns for a continuous period of six months - Finally, petitioner's GST registration was cancelled by the impugned order with retrospective effect from 01.07.2017.
Held: There are no grounds in the impugned order setting out any reason for the cancellation of GST registration with retrospective date, that is, 01.07.2017 - Respondent no. 2's decision to cancel the GST registration with retrospective date cannot be sustained - It is also material to note that the petitioner's GST registration was proposed to be cancelled on the ground that it had not furnished any return for a period of six months - Bench is unable to accept that this could be the ground for cancelling the GST registration ab initio from the date it was granted - If the petitioner filed its returns during the relevant period when it was functioning, there would be no reason to cancel the GST registration during the said period for the reason that the subsequent returns have not been filed - Bench considers it apposite to direct that the cancellation of the petitioner's GST shall take effect from 28.11.2019 and not from 01.07.2017 - Petition disposed of: High Court [para 9, 10, 11]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1563-HC-DEL-GST
Samayshristi Enterprises Vs Superintendent, Range-31
GST - Petitioner impugns an order dated 26.10.2023 passed by the respondent cancelling the petitioner's GST registration with effect from 20.03.2021 (the date of registration) - Show Cause Notice dated 18.09.2023 was issued proposing to cancel the petitioner's GST registration on the ground that the registration was obtained by means of fraud, wilful misstatement or suppression of facts - Petitioner's registration was also suspended from the date of SCN.
Held: Concededly, the SCN did not specifically state the reason for proposing to cancel the petitioner's GST registration - Although it was alleged that the GST registration was obtained by means of fraud, wilful misstatement, or suppression of facts, but the SCN did not provide any clue as to the alleged fraud committed by the petitioner or the wilful misstatement made by it - There is no indication as to the facts which are alleged to have been suppressed by the petitioner - It is trite law that a show cause notice is to respond to the allegation which form the basis of proposing an adverse action - In the present case, the SCN was incapable of eliciting any meaningful response - The impugned order is also bereft of any reason - It merely states that it is in reference to the SCN - In view of the above, the impugned order is liable to be set aside as it is void and not informed by reason - On 13.05.2023, the Appeal was rejected on ground of delay - Petitioner had applied for seeking revocation of cancellation of its GST registration in terms of the Circular dated 31.03.2023 - The petitioner's application was accepted and the petitioner's GST registration was restored by an order dated 16.09.2023 - Once the petitioner's GST registration [which was cancelled on an allegation that it was obtained by fraud, misstatement or suppression of facts] was restored, it is not open for the respondent to again cancel the petitioner's GST registration for the same reason unless it is premised on the ground that had occurred after the petitioner's GST registration has been cancelled on 30.09.2021 - Petition is allowed and the impugned order is set aside and the petitioner's GST registration is directed to be restored forthwith: High Court [para 6, 7, 9, 10, 11]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-1562-HC-AHM-GST
Tikona Infinet Pvt Ltd Vs State of Gujarat
GST -Petitioner challenges the show-cause notice dated 29.09.2023 - It is the case of the petitioner that Tikona Infinet Private Limited is a transferee company, which had, pursuant to Business Transfer Agreement with one Tikona Digital Networks Private Limited as per Section 18(3) of the Central Goods and Services Tax Act, as a registered company, allowed to transfer the business and the Input Tax Credit lying un-utilized in its Electronic Credit Ledger -It is further submitted that as per Rule 41(1) of the Rules, 2017, a registered person intending to transfer the credit is required to file Form GST ITC-02 on the common portal for transferring the said input tax credit to the transferee -It had been pointed out to the Central Tax Agency that Form ITC-02 was not available on the GST Portal for filing and hence they were unable to comply with the requirement of filing the said form - Having failed to do so, the petitioner did so separately manually - Petitioner relies upon an order passed by the High Court of Allahabad in the case of the petitioner itself which dealt with the similar issue of un-utilized Input Tax Credit and an order passed subsequent to the show-cause notice on similar lines.
Held : Petitioner is directed to file a response to the show-cause notice within 2 weeks - As soon as the petitioner responds to the show-cause notice, the respondents are directed to consider the case of the petitioner in light of its own case which was decided by the Division Bench of Allahabad High Court in Writ Tax No. 859 of 2023 - 2023-TIOL-906-HC-ALL-GST and pass an appropriate order in accordance with law especially considering the findings of the Allahabad High Court as to non-availability of the Form ITC-02 on online portal of GST -Petition disposed of: High Court [para 6, 7]
- Petition disposed of: GUJARAT HIGH COURT
2023-TIOL-1561-HC-MUM-CUS
AM Prototyping Labs Pvt Ltd Vs UoI
Cus -Petitioner assails the seizure memo dated 8 August 2022 issued by respondent No.2 whereby the consignment of the petitioner of " Flashforge WaxJet 400 3D Prototypeing Machine, Purple Wax, White Wax and Machine Accessories ", imported by the petitioner has been seized -Show-cause-notice came to be issued to the petitioner on 7 August 2023 - Petitioner, invoking the provisions of sub-section (2) of Section 110 read with its proviso, has approached Court praying that, by operation of law, the seizure itself has become illegal and consequently the goods are liable to be returned.
Held: In the present case, the initial period of six months to release the consignment expired on 8 February, 2023, considering the date of seizure to be 8 August, 2022 - Facts clearly demonstrate that the last (second) extension which was granted was for a period of two months vide communication dated 11 May 2023, expired on 11 July 2023 -Thereafter, no extension was granted to cover the full period of six months much less as informed to the petitioner as per the requirement of the proviso below sub-section (2) of Section 110 - In the present case, clearly there was no such communication subsequent to 11 July 2023, so as to inform the petitioner of any third extension so as to cover the balance period of one month so as to take the extended period up to six months i.e. period from 11 July 2023 to 11 August 2023, so as to aware of a situation that the full extended period of six months, was appropriately invoked by the department, as per the proviso below sub-section (2) of Section 110 - In any event, any noting / order / endorsement merely kept in the file and not communicated to the person who would be adversely affected by it, as in the present case, cannot amount to a valid order - If such proposition, as canvased, is accepted it would create a chaotic situation - By operation of law, that is, by application of the provisions of sub-section (2) of Section 110, read with the proviso, the seizure of petitioner's goods has ceased to operate and has become invalid, which would entitle the petitioner for release of the goods -Petition disposed of: High Court [para 18, 19, 22]
- Petition disposed of: BOMBAY HIGH COURT |
