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2023-TIOL-1616-HC-KERALA-GST
Nahasshukoor Vs Asstt. Commissioner
GST - Appellants' claim for input tax credit under the CGST Act and the SGST Act because of the difference in GSTR 2A and GSTR 3B returns - Appellants approached the writ court challenging the assessment order as well as the constitutional validity of Section 16(2)(c) of the CGST Act and Rule 36(4) of the CGST Rules - Single Judge dismissed the writ petitions, therefore, the present appeals.
Held: It is settled that input tax credit is in the nature of a benefit/concession and not a right extended to the dealer under the statutory scheme - The said benefit can accrue to the assessee only as per the scheme of the statute - Coming to the facts of the cases, the appellants failed to produce the tax invoices despite sufficient opportunities extended - They did not appear for personal hearing either - As per section 155 of the CGST Act, the burden is on the dealer who claims the benefit of input tax credit to prove that he is eligible for such benefit - The appellants did not discharge the said burden - They failed to produce any evidence to prove that they are entitled to the benefit of input tax credit - That apart, the appellants rushed to the writ court without exhausting the alternative appellate remedy - The challenge of the constitutional validity of the provisions on the grounds of violation of Article 14 of the Constitution is vague - Nothing in the impugned provisions indicates that they discriminate between the purchasing and selling dealers - The prescription of the conditions cannot be considered discriminatory to contravene Article 14 - So far as the second point urged by the appellants is concerned, it is settled that legislation or provision in a statute cannot be challenged only on the grounds of arbitrariness or unreasonableness - Manifest arbitrariness must be established to strike down a provision in the statute as violative of Article 14 of the Constitution - Challenge to the constitutional validity of the impugned provisions must fail - Appeals dismissed: High Court [para 5, 8, 10]
- Appeals dismissed: KERALA HIGH COURT
2023-TIOL-1615-HC-KERALA-GST
Malabar Cements Ltd Vs Asstt. Commissioner CT & CE
GST - Petitioner availed transitional credit of excise duty and Kerala Value Added Tax paid on inputs and service tax paid under RCM for input services such as telephone charges, manpower services, etc. - Single Judge dismissed the writ petition holding that the Commissioner did not commit any error of law or jurisdiction in rejecting the Ext.P1 application, which had been filed belatedly after five years from the prescribed date - Writ appeal filed against order of Single Judge. Held: From a perusal of Sub-section (5) of Section 140 of the CGST Act, it is evident that beyond the period of thirty days, an assessee can claim the transitional credit of input tax within another thirty days only on production of an order passed by the Commissioner - In other words, unless the order is passed by the Commissioner extending the limitation period, an assessee cannot claim the input tax credit in respect of the inward supply taken before 1/07/2017 - The appellant filed the application for extending the time of limitation, claiming transitional credit only after five years - The Commissioner, therefore, rightly rejected the application - No illegality or impropriety in the impugned judgment of the Single Judge - Writ appeal dismissed: High Court [para 5]
- Appeal dismissed: KERALA HIGH COURT
2023-TIOL-1614-HC-JHARKHAND-GST
Chitra Automobile Vs State of Jharkhand
GST - Rule 142(1)(a) of the JGST Rules provides that the summary of show cause notice in Form DRC-01 should be issued "along with" the show cause notice under Section 73 (which will spell out the contraventions in details for which the Assessee is charged) - The word "along with" clearly indicates that, in a given case, show cause notice as well as summary [DRC-01] thereof both have to be issued - As per Rule 142(1)(a) of the JGST Rules, the summary of show cause notice has to be issued electronically to keep track of the proceeding initiated against the registered person whereas a show cause notice need not necessarily be issued electronically - DRC-07 has been issued within five days of issuance of DRC-01 is a clear picture of violation of principles of natural justice - In the instant case, the purported show cause notice has been issued, but at the cost of repetition, the same was issued in a format without striking out irrelevant particulars, which is not the intent of the legislature - Thus, this Court holds that the foundation of the proceeding in the instant case suffers from material irregularity and hence not sustainable being contrary to Section 73(1) of the JGST Act - Thus, the subsequent proceedings /impugned orders issued under DRC-07 dated 17.02.2022 cannot sanctify the same and are liable to be quashed and set aside - Accordingly, the show cause notice under Section 73(1) of the Act dated 12.02.2022, summary of show cause notice in FORM GST DRC-01 of the same date and also the summary of order dated 17.02.2022 in FORM GST DRC-07 are quashed and set aside - Respondents are at liberty to initiate fresh proceeding from the stage of issuance of show cause notice under Section 73(1) of the JGST Act, 2017 in accordance with law: High Court [para 9, 10]
- Petition allowed: JHARKHAND HIGH COURT
2023-TIOL-1613-HC-KERALA-CT
T A Salilamma Vs State of Kerala
Commercial Tax - Kerala Value Added Tax Act - KVAT - Revision petitioner, is stated to be a supplier of coir looms - Petitioner received orders for the supply of coir looms from various individuals who were the beneficiaries of the Scheme announced by the Central Government through the Coir Board - Based on the provisions of the Scheme, and on request for loans for the purchase of the coir looms, banks would sanction loans to needy beneficiaries and on being satisfied with the entitlement of their customer for the benefit of the Scheme, they would sanction the loan by paying the loan amount directly into the account of the petitioner - Petitioner submits that, after receiving the amounts from the bank, he did not supply a complete loom to the customer but only parts thereof, and that he billed the customer concerned only for the parts of the looms supplied to him and refunded the differential value by cheque to the said customer - Intelligence Officer, who adjudicated the show cause notice issued to the petitioner proposing a penalty under the KVAT Act, was of the view that the payment of tax by the petitioner on the reduced amount for which he is stated to have billed his customer was not sufficient, and the petitioner was obliged to pay tax on the consideration amount received from the banks for the supply of the looms to the customer - Against the order of the Intelligence Officer, the petitioner approached the Revision Authority, who by order, reduced the penalty to the actual differential tax amount demanded, namely, Rs.4,61,625/- - Commissioner, Commercial taxes, in further revisionary proceedings held that the findings of the First Revision Authority did not warrant any intervention - Aggrieved by this order, the present revision petition. Held : Petitioner dealer had clearly contravened the terms of the Central Government Scheme that proposed benefits to purchasers of coir looms - The legal presumption to be drawn in the instant case, in the backdrop of the Central Government Scheme, is that the amounts received by the petitioner from the bank represented the actual consideration for the supply of the coir looms, which the petitioner was obliged to sell to the beneficiaries of the Scheme - Obvious illegality (which cannot be overlooked) that would arise if, as contended by the petitioner, it is a fact that he had colluded with the customer and supplied only parts of a loom, instead of an actual loom, and refunded a part of the amounts received from the bank to the customer - Impugned order of the Commissioner does not require to be interfered with - Revision petition disposed of by answering the questions of law raised in favour of the revenue and against the petitioner assessee : High Court [para 6]
- Petition disposed of: KERALA HIGH COURT
2023-TIOL-1612-HC-KERALA-CT
A M Rahman Vs State of Kerala
Commercial Tax - KVAT - It is Petitioner's contention that inasmuch as Annexures-I and II notifications were optional exemption notifications issued under Section 8(5) of the CST Act, it was upto to the petitioners to choose whether or not to avail the exemption under those notifications and in situations where they had admittedly chosen to pay CST under Section 8(1) of the CST Act on the inter-state sales effected by them, they have to be seen as entitled to the input tax credit in terms of Section 11/Section 12 of the KVAT Act of the tax paid by them on local purchases. Held : Since the statutory provisions under the KVAT Act restrict the availment of input tax credit to only such situations where tax is payable on outward sales and there is a prohibition against availment of input tax credit in situations where the outward inter-state sale is exempted, the issuance of the exemption notification by the State Government under Section 8(5) of the CST Act must be seen as bringing into operation the prohibition under the 3rd proviso to Section 11(3) in respect of input tax credit and the 3rd proviso to Section 12(1) in the case of special rebate - The question really is not whether the petitioners had an option to avail the exemption envisaged in the notifications or not; rather, the point is that by virtue of the notifications aforementioned, the inter-state sale of rubber had to be seen as exempted for the purposes of the 3rd proviso to Section 11(3) and the 3rd proviso to Section 12(1) of the KVAT Act - The petitioners were, therefore, not entitled to avail input tax credit of the tax paid on purchases of rubber within the State so long as Annexures-I and II notifications were in force and operational - O.T.Revisions are, therefore, disposed by answering the questions of law raised therein against the assessees and in favour of the Revenue: High Court [para 7]
- Petitions disposed of: KERALA HIGH COURT |
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