RATIO OF LATEST JUDGEMENTS
Atulya Minerals Jurudi v Commissioner of State Tax, Cuttak W.P.(C) No. 22157 of 2024 (Orissa High Court)
ITC in the credit ledger cannot be blocked by the GST Authorities without giving any reasons in writing. The Hon’ble High Court held that by virtue of Rule 86A (1) that there can be blocking of ITC only after giving reasons for such blocking of ITC so that the petitioner could approach the concerned authority and could clarify that why ITC should not be blocked. The HC order pertaining to unblocking was passed considering that blocking of ITC entails hardship in doing business.
Kloud Data Labs Private Limited and Another v Deputy Commissioner State Tax, Nagpur, W.P. 1951 of 2024 (Bombay High Court)
Opportunity of personal hearing is to be provided to Taxpayer before passing of any adverse order creating demand of tax and penalty under section 75(4) of CGST Act,2017. If personal hearing is not provided, then proceedings will be in violation of principles of natural justice. The taxpayer should expressly mention in writing if the opportunity of personal hearing is not to be availed by him. The matter was remitted back for granting an opportunity of hearing to the Petitioners as contemplated under Section 75(4).
M/s. BKT Spin Dish Private Limited v State Tax Officer, W.P. No. 11949 of 2024 (Madras High Court)
An opportunity to contest demand by the taxpayer before the Revenue Authorities was provided in the interest of justice as order in original was only served in “view additional notices and order tab” on the GST portal not through any other mode. The taxpayer was unaware of proceedings culminating in the impugned order until receipt of information regarding the attachment of the Taxpayer bank account in March 2024. Thus, taxpayer could not contest the demand of tax on merits within the limitation period before revenue authorities on the issue of supplier is non-existent, the taxpayer presented transaction documents and proofs before the High Court. Thus the Hon’ble Madras High Court remanded back the SCN for fresh consideration as it was uploaded only on GST Portal under “view additional notices and order tab” not through any other mode and order was passed without representation of the taxpayer.
Shobikaa Impex Private Limited v Union of India, W.P. No.13263 of 2022 (Madras High Court)
Procedural irregularity should not come in the legitimate way of grant of export incentives. The legitimate export incentives ought to be granted as an exporter competes in the international market. The matter was remitted for passing fresh order by examining the records of actual exports made by the petitioner for grant of refund under Rule 89 of the CGST Rules, 2017 in terms of Section 16(3) of the IGST Act, 2017.
Deepak Sharma v State of Punjab, CRM-M-27278-2024 (Punjab & Haryana High Court)
A person fraudulently obtaining refund is liable to be prosecuted under Section 132 of CGST Act,2017. Prosecution can only be launched with the previous sanction of the Commissioner as per Section 132(6) of CGST Act, 2017. Bail was granted to the petitioner.
Usman Pulakal v State of Kerala, BAIL APPL. NO. 5547 OF 2024 (Kerala High Court)
Bail was granted as the petitioner had been under judicial custody for the last 61 days and the investigation was not completed by the GST Authorities and further the final report was not laid. The offence alleged against the petitioner is punishable up to a period of five years. The Honourable High Court relied upon the judgement given by Hon’ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and Another [2020 (1) KHC 663] as the petitioner is entitled to be released on compulsive bail since it is the indefeasible right under Section 167(2) of the Code of Criminal Procedure, 1973.
Sh. Trilok Chand Sharma v Union of India, W.P.(C) 12389/2024 (Delhi High Court)
Amount voluntarily deposited in excess of admitted tax liability or without having any outstanding liability can be claimed as refund if the Taxpayer has deposited such amount under coercion / constant threat of cancellation of GST Registration by GST Authorities.
Fabricship Pvt. Ltd. Vs Union of India, [2024] 164 taxman.com 80 (Bombay)
Penalty under section 129 of CGST Act, 2017 cannot be invoked due to non-availability of e-way bill as transportation of imported machinery from the port to one’s own factory after customs clearance does not constitute ‘supply’ as per section 7 of CGST Act,2017. To constitute a “Supply” the transaction must be between two distinct parties.
Bangalore Golf Club vs Assistant Commissioner of Commercial Taxes (Enforcement) Koramangala, Bengaluru, W.P. No. 16500 of 2024 (T-RES) (Karnataka High Court)
Consolidated show cause notice under section 73 of CGST Act,2017 for multiple financial years cannot be issued by the revenue authorities as each assessment year has different due dates of limitation under GST Act. The Honourable High Court relied upon the decision given by Honourable Madras High Court in the case of M/s Titan Company Ltd. Vs Joint Commissioner of GST which was based on decision of Honourable Supreme court in the State of Jammu and Kashmir and Others vs. Caltex (India) Ltd. wherein it was held that an assessment encompasses different assessment year, each assessment order must be distinctly separated and must be treated independently.
Deepak Singhal Vs Union of India and Others, W.P. No. 21641 of 2024 (Madras High Court)
GST Authorities cannot bypass the GST Act’s provisions by invoking IPC provisions without following the procedural requirements under the GST Act, especially when the alleged actions fell squarely under the offenses enumerated in the GST Act.
Search and Seizure operations conducted under Section 67(2) of the GST Act revealed offenses punishable under Section 132 of the GST Act. Given that the GST Act is a special statute, the invocation of IPC provisions without first applying the penal provisions of the GST Act is legally flawed. It was contended that the FIR registered by the GST Authorities under IPC provisions was invalid without invoking the appropriate sections of the GST Act.
No prior sanction was obtained from the Commissioner as mandated under Section 132(6) of the GST Act before initiating prosecution. The absence of such approval rendered the FIR defective. The GST authorities were required to follow the procedure prescribed by the GST Act and invoke its penal provisions before resorting to the IPC.
Vishal Steel Supplier vs State Of U.P., Writ Tax No. 741/2020 (Allahabad High Court)
The Honourable High Court quashed the order of detention of goods, which were intercepted by authorities on the grounds that the transportation route deviated from the usual path. The court found that no provision under the Goods and Services Tax (GST) law mandates the disclosure of the specific route for transportation, and the detention was based on mere speculation. The Allahabad High Court ruled in favour of the petitioner, quashing the orders from the tax authorities and directed the refund of any deposited amount
S.M. Trading Co. vs Assistant Commissioner of Central Goods and Service Tax, Mandoli Division, East Delhi, W. P. (C) 11785/2024 (Delhi High Court)
The Hon’ble High Court of Delhi set aside the order passed by the Assistant Commissioner of Central Goods and Service Tax as the court observed that the SCN lacked any specific details regarding the alleged fraud or misstatement, preventing the taxpayer from providing a meaningful response. The court also noted that the order was passed based on directions from another authority (Anti-Evasion Branch) without the proper officer’s independent satisfaction, making the process flawed.
RETROSPECTIVE CANCELLATION OF REGISTRATION MUST BE BASED ON SOME OBJECTIVE CRITERIA
The proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the Section 29(2) of the CGST Act,2017 are satisfied. GST Registration cannot be cancelled with retrospective effect mechanically. It can only be cancelled if the proper officer deems it fit to do so after proper application of mind. Proper officer cannot be subjective while cancelling the GSTIN Retrospectively but must take the decision based on some objective criteria. 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, and the due tax has been paid by the taxpayer for the erstwhile period. Cancelling a taxpayer’s registration has many consequences on the defaulting taxpayer as well as on the customers of such defaulting taxpayer. One of the unwarranted challenges is faced by the customers who have had made purchases in the period when such defaulting taxpayer/ seller was compliant and had filed all the due returns and deposited the tax with the revenue authorities is that these innocent customers are denied ITC under Section 16(2) of CGST Act,2017 which was claimed by them on the bonafide purchases. This non application of mind while cancelling the GSTIN retrospectively not only leads to unnecessary burden on the recipient of goods or services who had made purchases from the registered dealer on the belief that such dealer was verified and therefore granted registration by GST Authorities. The cancellation of GSTIN from retrospective date must be done only after providing reasons in writing by Proper officer through Show Cause Notice and thereafter an opportunity of personal hearing to such defaulting taxpayer should be provided in order to properly follow principles of natural justice.
LEGAL MAXIMS/ PHRASES:
Legal maxim/ phrase | Legal Principle/ concept |
Adjudicate | To give a Judgement between two parties in law. |
Ad hoc | For the particular end or case at hand. |
Alibi | At another place, elsewhere. |
Audi alteram partem | No man shall be condemned unheard. |
Amicus Curiae | A friend of court or member of the Bar who is appointed to assist the Court. |
Assentio mentium | The meeting of minds, i.e. mutual assents. |
Ante Litem Motam | Before suit brought; before controversy instituted or spoken before a lawsuit is brought. |
Amnesty | Pardon, often for Political crimes. |
Due Dates – GST Compliances in September 2024 | |||
Monthly | Quarterly | Other Due Dates | |
GSTR-3B (Aug. 2024) | GSTR-3B (July -Sep, 2024) | GSTR-5 (Aug, 2024) | GSTR-5A (Aug, 2024) |
Sep 20th, 2024 | Oct 22nd, 24th, 2024 | Sep 13th, 2024 | Sep 20th, 2024 |
GSTR-1 (Aug, 2024) | GSTR-1 (Jul-Sep, 2024) | GSTR-6 (Aug, 2024) | GSTR-7 (Aug, 2024) |
Sep 11th, 2024 | Oct 13th, 2024 | Sep 13th, 2024 | Sep 10th, 2024 |
IFF (Optional) (Aug,2024) | CMP-08 (Jul-Sep, 2024) | GSTR-8 (Aug, 2024) | RFD-10 |
Sep 13th, 2024 | Oct 18th, 2024 | Sep 10th, 2024 | 18 Months after the end of quarter for which refund is to be claimed |
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