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Credit pertaining to payment made after the cut-off date for making the transitional application can be carried forward in light of the doctrine of necessity: Hon’ble Madras High Court
In M/s Ganges International Private Ltd. and Ors. v. The Assistant Commissioner of GST & Central Excise, Puducherry and Ors., W.P. Nos. 528, 1092 & 1160 of 2019, Service Tax was paid on and after December 2017 – Issue: payment has been made after the cut-off date for making TRAN-1 application whether those amount/credit can be sought for to carry forward to the GST regime (S. 140) or be granted as a refund (S. 142(3))? Held: In the present case, S. 142(3) claim should not be taken as a refund claim but should be taken as a claim to carry forward the credit to the ECL – as no provision covers the situation hence the doctrine of necessity is invoked. This case carves out the exception to the general concept of Doctrine of Necessity.
Under S. 74(1) notice is an independent notice to be issued in DRC-01, whereas the notice under S. 74(5) was to be issued in DRC- 01A: Hon’ble Madras High Court
In M/s V.R.S. Traders v. Assistant Commissioner (State Taxes) Poonamallee Assessment Circle Varadharajapuram, Chennai and Ors., Writ Petition Nos. 1607, 1609 and 1613 of 2022 And WMP. Nos. 1744, 1747 and 1750 of 2022, Hon’ble HC held that u/s. 74(1) notice is an independent notice to be issued in DRC-01, whereas the notice u/s. 74(5) was to be issued in DRC- 01A. Herein the case in hand, admittedly DRC-01A was issued, thereafter straightaway the respondent revenue proceeded to pass the impugned assessment order – notice under Section 74(1) of the Act, which is also mandatory to be issued before passing the impugned order of assessment has not been issued in this case. In the absence of any such notice, the proceedings, which culminated in the order of assessment, which is impugned herein, is, no doubt, vitiated. WP Allowed.
SCN completely lacks in fulfilling the ingredients of proper show cause notice u/s. 73 of the Act: Hon’ble Jharkhand High Court
In M/s BLA Projects Pvt. Ltd. v. State of Jharkhand and Ors., W.P (T) No. 396 of 2021, Hon’ble HC while quashing the impugned order held that a perusal of the impugned show-cause notice issued u/s. 73 of the Act shows that it completely lacks in fulfilling the ingredients of proper show cause notice u/s. 73 of the Act. It does not indicate the contravention committed by the petitioner. It has been issued in a format without striking off irrelevant particulars. WP Allowed.
According to Section 83(2) of the CGST Act, every provisional attachment order cease to have effect after the expiry of one year from the date the order was passed under Section 83(1) of the CGST Act: Hon’ble Delhi High Court
In Anuj Goel and Ors. v. The Commissioner CGST Delhi-East Commissionerate and Anr., W.P.(C) 3696/2022 & C.M. No. 10967/2022, W.P.(C) 3697/2022 & C.M. No. 10970/2022, Hon’ble HC held that admittedly, after issuance of the impugned orders/letters, no fresh attachment order has been issued to the Petitioners. According to Section 83(2) of the CGST Act, every provisional attachment order ceases to have effect after the expiry of one year from the date the order was passed under Section 83(1) of the CGST Act. Consequently, the impugned provisional attachment order/letter is no longer effective. Accordingly, this Court directs the Respondents to defreeze the bank accounts of the Petitioners not later than three days from today.
The cancellation of registration has serious consequences as it takes away the fundamental right of a citizen etc. to engage in a lawful business activity: Hon’ble Allahabad High Court
In M/s Apparent Marketing Pvt. Ltd. v. State of UP and Ors., Writ Tax No. – 348 of 2021, while quashing the impugned orders Hon’ble HC has rendered various reasons interalia, in the present case, by merely describing the assessee firm “bogus”, the respondent authority did not make known to the assessee the exact charge that was being levelled against the assessee. Correspondingly, the respondent authority deprived the assessee of the necessary opportunity to rebut the charge.
Same issue – In M/s Pashupati Properties Estate Private Ltd. v. Commissioner of Central Taxes GST Delhi (East), W.P.(C) 3624/2022 & C.M. Nos. 10740-10741/2022: before Hon’ble Delhi High Court
Same issue – In M/s B.R. Construction Co. v. Additional Director and Ors., D.B. Civil Writ Petition No. 2086/2021: before Hon’ble Rajasthan High Court
The opportunity of personal hearing is mandatory u/s. 75(4) of the CGST/UPGST Act 2017: Hon’ble Allahabad High Court
In M/s Bharat Mint and Allied Chemicals v. Commissioner Commercial Tax and 2 Ors., Writ Tax No. – 1029 of 2021, Hon’ble HC held that the legislative mandate of S. 75(4) of the Act to the authorities to afford an opportunity of hearing to the assessee i.e., to follow principles of natural justice, has been completely violated by the respondents while passing the impugned order. Further, the Hon’ble HC reiterated the gist of grounds for invoking Writ Jurisdictions. Allowed with the cost of INR 10,000/-.
The assessee should be granted reasonable time to submit a reply against SCN: Hon’ble Allahabad High Court
In M/s Bhardwaj Construction v. State of U.P. and 2 Ors., Writ Tax No. – 184 of 2022, Hon’ble HC held that in view of the adjournment application of the petitioner dated 16.11.2021, respondent no. 3 should have granted a reasonable time to the petitioner to submit his reply to the show cause notice. Thus, non-compliance of principles of natural justice renders the impugned order to be unsustainable.
Expiry of Eway Bill – department couldn’t make a case that the violation was willful and deliberate or with a specific material that the intention of the petitioner was for evading tax: Hon’ble Calcutta High Court
In Ashok Kumar Sureka v. Assistant Commissioner, State Tax, Durgapur and Ors., WPA No. 11085 of 2021, Detention of goods – e-way bill relating to the consignment in question had expired one day before. Hon’ble HC held that the respondent could not make out a case against the petitioner that the violation was willful and deliberate or with a specific material that the intention of the petitioner was for evading tax. This writ petition is disposed of by setting aside the impugned order of the appellate authority as well as the order of the adjudicating authority and as a consequence, the petitioner will be entitled to get the refund of the penalty and tax paid on protest subject to compliance of all legal formalities.
The order cancelling the registration is something beyond vagueness. It is very distressing to note that this is an everyday affair: Hon’ble Gujarat High Court
In Rafik Alibhai Makvana v. State of Gujarat and Ors., R/SCA No. 2322 of 2022, Hon’ble HC held that the show cause notice referred to above in para 3 is as vague as anything. The order cancelling the registration is something beyond vagueness. It is very distressing to note that this is an everyday affair. Scores of petitions of the present type come up before us every day because of such absurd and vague orders being passed by the officers of the GST Department.
Bail Granted:
In Lakshya Agarwal v. DGGI Jaipur Zonal Unit and Ors., S.B. Criminal Miscellaneous Bail Application No. 20392/2021 – irregular availment of CENVAT Credit – fake firms – offences under Sections 132 (1)(b),(c),(h) and (l) read with Section (5) of CGST Act, 2017 – Hon’ble Rajasthan High Court.
In Nitesh Singhal v. State of Haryana and Ors., RM-M-31101-2020 (O&M) – wrongly passing input tax credit to other firms/taxable persons and issuing invoices with the dishonest intention to evade payment of taxes – Hon’ble Punjab and Haryana High Court.
In Mohsim Salimbhai Qureshi v. State of Gujarat and Ors., R/Criminal Misc. Application No. 91 of 2022 – receiving and passing of fraudulent ITC to their buyers by way of creating a chain of bogus firms, without physical receipt and supply of goods – Hon’ble Gujarat High Court.
The author may be reached at abhishek@gstivy.in*