Newsletter – Vol. 1, Issue 17 – 14.11.2021

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Violation of S. 75(4), matter remanded for personal hearing: Hon’ble Madras High Court
In M/s Aakanksha Distributors Pvt. Ltd. v. Asst. Commissioner (ST), Chennai, W.P.Nos.22507 & 22512 of 2021, Hon’ble HC personal hearing is statutorily imperative as per S. 75(4) and thus remanded the matter for personal hearing without entering into merits.

Default bail cannot have conditions imposed: Hon’ble Punjab and Haryana High Court
In M/s Amandeep Singh Bhui v. Inspector (Preventive) CGST, CRM-M-29607-2021 (O&M), the Hon’ble HC default bail has been recognized as a Fundamental Right in a plethora of judgments, cannot be equated with the discretionary right of the Court, wherein the Court in its discretion may impose any condition, as may be deemed fit so as to enlarge the accused on bail. The default bail under Section 167(2) Cr.P.C. cannot be equated with the discretion of the Court under Sections 437, 438 or 439 Cr.P.C., wherein the Court has got ample power to impose any condition as would be deemed fit on the facts and in the circumstances of the case. Hon’ble HC set aside the conditions imposed. Relied upon Saravana v. State and Ors., (2020) 9 SCC 101 – Hon’ble SC.

Impugned Order is defective as it lacks reasons for the conclusion drawn: Hon’ble Allahabad High Court
In M/s Dauji Ispat Pvt. Ltd. V. State of U.P. and Ors., WTAX No. 672 of 2021, the Hon’ble HC set aside the DRC-07 as the impugned order does not contain the reasons. Hon’ble HC held that unless the complete copy of the order containing reasons is served on the petitioner/assessee, he may never have any right to challenge the same before any forum including the appellate forum. Matter remanded to the authority to pass fresh notice along with all adverse material.

GST on Mining Rights: Challenged before Hon’ble Andhra Pradesh High Court
In M/s Trendset Rocks Pvt. Ltd. v. Asst. Commissioner (ST) and Ors., W.P. No. 25212 of 2021, the petitioner has challenged the payment of GST on minerals on which already royalty has been paid. The issue is also pending before Hon’ble Supreme Court in M/s Lakhwinder Singh v. UOI and Ors., WP (Civil) No. 1076/2021. Stay in the meantime.

Set aside the cancellation of registration on minor defect in the sub-let agreement: Hon’ble Calcutta High Court
In M/s CIGFIL Retail Pvt. Ltd. V. UOI and Ors., WPA 16415 of 2021, it is the case of the petitioner that the lessor has made some error in the sub-let agreement and that was rectified later. Even then the registration was cancelled on the grounds of the non-existence of the place of business. Hon’ble HC held that the facts and circumstances of the case that it is not a case of tax evasion or causing revenue loss to the Government rather petitioner’s activity of carrying on the business which cannot be called illegal is creating revenue for the State as well as in helping the State to solve the problem of unemployment a little bit…. Hon’ble HC set aside the order of cancellation of registration by directing the State respondent concerned to consider afresh the case of the petitioner.

Filing of revised form of Transitional credit allowed: Hon’ble Punjab and Haryana High Court
In M/s S.K. Sales Corporation v. UOI and Ors., CWP-22084-2021(O&M), Hon’ble HC directed the department to allow the one-time filing of revised Form GST TRAN 1 and GST TRAN 2 by either reopening the GSTN Portal or accepting the revised physical Form GST TRAN 1 GST TRAN 2 or accepting transitional Input Tax Credit claimed through GSTR 3B return.

Order of cancellation set aside as opportunity of being heard not provided: Hon’ble Madras High Court
In M/s JIT Auto Comp. V. State Tax Officer and Ors., W.P.Nos.1914 and 17524 of 2021, Hon’ble HC set aside the order of cancellation because the sanctity of a personal hearing before cancellation registration has been ingrained in the first proviso to Section 29(2)(a), it is only appropriate that the writ petitioner is given a personal hearing.  On the same ratio – In M/s S.S. Traders v. State of U.P. and Ors., Writ Tax No. – 651 of 2021 – Hon’ble Allahabad High [Addition – in the SCN no date or time was mentioned for appearing before the department]

Opportunity to be given to appear before the department: Hon’ble Gauhati High Court
In M/s Krit Kunal Dhawan v. The State of Assam and Ors., No.- WP(C)/5642/2021, Form GST DRC-01 was issued because the petitioner had not provided appropriate material and document at the time of the investigation – held – ends of justice would be met if an opportunity is given to the petitioner taxpayer to appear before the respondent Joint Commissioner of State Taxes, Guwahati with all relevant materials – thereafter the authority shall pass a reasoned order either accepting or rejecting the contention of the petitioner.

The issue regarding Reply to SCN had not been properly considered – can very well be decided by the appellate authority as it coupled with facts, Writ Petition dismissed: Hon’ble Madras High Court
In M/s TVL. P.R.S. Furniture Wood Works v. The Commissioner of Commercial Taxes and Ors., W.P.(MD) Nos. 15187, 15188, 15189 of 2021, the Hon’ble HC held that the petitioner has chosen to file the Writ Petitions before this Court on the ground that the reason stated in the reply or objection or show cause by the petitioner had not been properly considered or not considered in a proper perspective. Such an issue can very well be decided by the appellate authority as it is coupled with facts and therefore, each and every minute detail of the facts on tax matters cannot be gone into by the Writ Court. In that view of the matter, this Court feels that while rejecting these Writ Petitions, liberty can be given to the petitioner to file an appeal before the appellate authority as per the provisions of the Act.


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