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2023-TIOL-1755-HC-DEL-GST
Sapphire Intrex Ltd Vs UoI
GST - Petitioner seeks a direction to the Respondents to refund an amount of Rs. 2,30,00,000/-, which was coercively recovered from them.
Held: According to the petitioner, it was coerced to make the deposit of tax through the cash ledger vide Debit Entry dated 20.10.2021 at 8:41pm while the search and inspection proceedings were continuing at the material time - The search operations started at around 3:45 p.m. on 20.10.2021 and went way beyond the normal business hours, that is, up to 00:30 a.m. on 21.10.2021 - It is an admitted case that while the payment was made by the petitioner, it had not admitted the liability to pay the amount - It is also not in dispute that there is no adjudication of the liability and the Show Cause Notice demanding the recovery of GST and the appropriation of the amount of Rs. 2,30,00,000/- deposited by the petitioner was issued on 23.06.2022, that is, much after the said deposit - In the facts of the present case, Bench accepts that the deposit was made by the petitioner under duress and compelling circumstances - If any amount is collected without any authority of law, the same amounts to depriving the person of its property and infringes its rights under Article 300A of the Constitution of India - It is also important to note that the requisite procedure under Rule 142 of the CGST Rules, has also not been complied with in the present case - Accordingly, Bench allows the petitioner's claim for refund and directs the respondents to forthwith process the same - Petition allowed: High Court [para 27, 28, 29, 31, 34]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-1754-HC-DEL-GST
Roxy Enterprises Vs UoI
GST - Petitioner's appeal against an order cancelling its GST registration was rejected, therefore, the present petition - Before the Appellate Authority, the petitioner had filed a Rent Agreement in respect of its current place of business, which reflects that the petitioner had commenced paying rent for the said premises with effect from 31.05.2023 - According to the petitioner, although its Rent Agreement for the earlier premises expired on 14.10.2022, the petitioner had continued to occupy the same till he shifted to the current place of business in the end of May, 2023. Held: Bench is unable to accept that the Appellate Authority could have taken a definite view of the petitioner being non-functional from its declared place of business prior to 31.05.2023 - It is apparent that no physical verification had been carried of the petitioner's earlier premises during the period 14.10.2022 to 31.05.2023 - Any such verification was required to be carried in accordance with the Rules, which also mandates the petitioner to be issued a notice for the same - Undisputedly, the petitioner has not been unable to upload his application for change of its earlier place of business as the petitioner's GST registration stood suspended with effect from 25.01.2023 – Petition is disposed of with the following directions - Concerned official of the respondents shall visit the petitioner's current premises within a period of one week from date, to verify whether the petitioner is occupying the same and in the event the petitioner is found occupying and operating from the aforesaid premises, the petitioner's GST registration shall be restored immediately thereafter: High Court [para 15, 16, 17]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1753-HC-DEL-GST
Sethi Sons India Vs Asstt. Commissioner
GST - Petitioner is aggrieved by the denial of refund of unutilised input tax credit - Proper Officer rejected the petitioner's application for refund on the ground that it was filed beyond the period of two years as specified under Section 54(1) of the Act, 2017 . Held : In the present case, there is no dispute that the petitioner had attempted to upload its application for refund but could not do so on account of technical glitches - Bench finds it difficult to accept that the petitioner's legitimate right to seek refund could be foreclosed on account of such technical glitches - If the taxpayer has made a bonafide attempt to make an application but was prevented to do so on account of technical glitches or for any reason attributable to GST authorities, its claim for refund cannot be denied on account of delay - There is no dispute that the petitioner had attempted to file an application for refund on the GST portal twice but its application could not be uploaded on account of technical glitches - In the peculiar facts of the case, petitioner's claim for refund cannot be denied on the ground of delay - Proper officer is directed to examine the petitioner's claim for refund and process the same - Petition is allowed in aforesaid terms: High Court [para 26, 27, 30, 31, 32]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1752-HC-DEL-GST
Pratima Tyagi Vs CGST
GST - It is the petitioner's case that she was carrying on the business under the name of sole proprietorship concern 'M/s P. S. Metal' but she closed down her business activities on 11.11.2019 on account of ill-health - Therefore, the petitioner filed an application on the said date for cancellation of her GST registration - The same was duly acknowledged, but the petitioner's application for cancellation of the registration was not processed - Thereafter, the proper officer issued a show cause notice dated 12.01.2021 proposing to cancel the petitioner's GST registration on the ground that the petitioner had not filed the returns for a continuous period of six months - It is material to note that the SCN did not specify the appointed date and time fixed for hearing the petitioner - Thereafter, the proper officer passed the impugned order dated 03.02.2021 cancelling the petitioner's GST registration with retrospective effect from 01.07.2017 - Petitioner challenges this order and prays that her GST registration be cancelled with effect from 11.11.2019 as the petitioner had stopped her business from the said date. Held : In terms of Section 29(2) of the Act, 2017 , the proper officer has a discretion to cancel the registration from any date including with retrospective effect, however, the said discretion cannot be exercised in arbitrary manner - The decision to cancel the registration with retrospective effect must be based on some objective criteria - In the present case, the petitioner's GST registration was cancelled on account of non-filing of returns for a period of six months - Impugned order does not provide any reason for cancellation of the GST registration let alone reason for doing so with retrospective effect - Bench directs that the impugned order cancelling the petitioner's GST registration would take effect from 11.11.2019 and not from 01.07.2017 - Petition is disposed of: High Court [para 6, 7, 9]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1751-HC-DEL-GST
Saroj Gagneja Vs Asstt. Commissioner of State GST
GST - Petitioner claims that she discontinued the business in January, 2020 and filed an application dated 17.01.2020 praying that her GST registration be cancelled with effect from the said date - By an order dated 21.10.2021 the petitioner's GST registration was cancelled with retrospective effect from 01.07.2017 - Petitioner impugns this “retrospective cancellation” - The impugned order does not indicate any reason for cancelling the petitioner's GST registration except mentioning that no reply has been received to the SCN - According to the respondent, one of the consequences for cancelling a tax payer's registration with retrospective effect is that the taxpayer's customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Held : Merely because a taxpayer has not filed the returns for some period does not mean that the taxpayer's registration is required to be cancelled with retrospective date also covering the period when the returns were filed and the taxpayer was compliant - Assuming that the respondent's contention [that the customers are denied the ITC for such period] in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect - Thus, a taxpayer's registration can be cancelled with retrospective effect only where such consequences are intended and are warranted - SCN proposing to cancel the petitioner's GST registration is flawed inasmuch as although it directed the petitioner to appear for a personal hearing on the appointed date and time but it failed to specify the said date, time, or venue - Petition is allowed - Respondent is directed that the cancellation of the petitioner's GST registration shall take effect from 17.01.2020, being the date of the application filed by the petitioner seeking cancellation of her GST registration: High Court [para 9, 10, 12, 13]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-1750-HC-DEL-CUS
Shanus Impex Vs UoI
Cus - Provisional release - Petitioner impugns the Circular bearing No. 35/2017-Cus dated 16.08.2017 - Petitioner submits that paragraph 2 of the impugned Circular runs contrary to the provisions of Section 110A of the Customs Act, which confers the discretion on the adjudicating authority to impose such conditions and demand such security as the adjudicating authority may require; that the discretion granted by the statute to the adjudicating authority is curtailed by the impugned Circular; that the Coordinate Bench of this Court in M/s Its My Name Pvt. Ltd. - 2023-TIOL-599-HC-DEL-CUS has held prima facie that the petitioner's prayer that the impugned circular is required to be declared as ultra vires the provisions of the Act is liable to be allowed - Counsel for Revenue, therefore, submits that the impugned order be set aside and the matter be remanded to respondent no.6 to decide afresh. Held : Paragraph 2 of the impugned Circular No. 35/2017-Cus dated 16.08.2017 to the extent it curtails the discretion accorded to the adjudicating authority is set aside as being contrary to the Customs Act - The impugned order is set aside and the petitioner's application for the provisional release of the goods is restored before respondent no.6 - respondent no.6 is directed to decide the matter afresh and pass a speaking order within a period of four working days from date after hearing the petitioner - Petition allowed: High Court [para 7 to 9]
- Petition allowed: DELHI HIGH COURT |
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