Newsletter – Vol. 2, Issue 10 – 06.03.2022

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Central authority canceled registration citing states authority’s SCN, order quashed: Hon’ble Calcutta High Court
In Latika Ghosh v. The Commercial Tax Officer, WBGST and Ors., MAT 112 of 2022, the Hon’ble HC held that order of cancellation of registration dated 08.02.2021, there is no reference to show cause notice dated 02.12.2019 (Central Authority SCN). Learned counsel for the appellant further states that the said SCN dated 02.12.2019 was never uploaded to the Website. Thus, we can safely hold that cancellation of the registration dated 08.02.2021 passed by the central authorities is in violation of principles of natural justice and liable to be set aside.

Objection against provisional attachment can effectively be exercised only when the assesses knows the reason or opinion prima facie formed by the Commissioner: Hon’ble Bombay High Court
In M/s Originative Trading Private v. UOI and Ors., Writ Petition No. 3786 of 2021, the Commissioner was directed to furnish a certified copy of the opinion/reasons formed under section 83 r/w. rule 159 to the petitioner. The reason is that the remedy provided to an assessee to lodge the objection can be exercised effectively only if the petitioner knows the reasons or opinion prima facie formed by the Commissioner before exercising the power under section 83 r/w. rule 159(1) to enable the petitioner to record the objections to the prima facie opinion. Unless such prima facie opinion at least at this stage is communicated to the petitioner, the petitioner would not be able to lodge the objection and to canvass that the prima facie opinion formed by the Commissioner was not in accordance with section 83 r/w. rule 159(1) and there was no threat of loss of revenue to the respondents.

The responsibility of paying GST by the tenderer or not, cannot be decided via writ petition: Hon’ble Madras High Court
In K. Veerapathiran v. The Commissioner, Hindu Religious and Charitable Endowment, W.P.(MD) No.3128 of 2018 and W.M.P.(MD) No.3282 of 2018, Hon’ble HC held that the tender conditions stipulate that applicable tax has to be paid by the petitioner. Whether the respondents 3 and 4 were exempted from payment of tax in terms of NN. 12/17 and Central Tax (Rate) dated 28.06.2017 or not cannot be decided in a writ proceeding. Though prima facie it appears that the demand of service tax from the petitioner was correct, it would however require a proper adjudication by the authorities under the respective GST enactments. As a matter of fact, if the petitioner is of the view that the petitioner was not liable to pay tax, it is open for the petitioner to file an appropriate application for refund of the incidence of tax paid under section 54 of the respective enactments. Having participated in the tender, it is not open for the petitioner to state that the petitioner cannot be asked to pay tax, if indeed GST was payable by the 3rd and 4th respondent.

Account will get defreeze if bank guarantee is given to protect the interest of revenue: Hon’ble Gujarat High Court
In M/s Trishna trading Services Pvt. Ltd. v. UOI and Ors., R/SCA No. 2449 of 2022, Hon’ble HC held that if the writ-applicant is ready and willing to furnish the bank guarantee to the extent of ₹ 1.25 Crore of Bank of India or ICICI Bank, then, in such circumstances, we should order that the provisional attachment may no longer continue. And the individual Directors of the Company to file an undertaking in writing before this Court on oath by tomorrow that ultimately if any liability of the Company is fixed, they would discharge the same so far as the balance amount is concerned i.e. approximately 1.12 crore.

Notice to return defaulters u/s. 46 is required before the assessment: Hon’ble Jharkhand High Court
In M/s Vinman Constructions v. State of Jharkhand and Ors., W.P (T) No. 786 of 2021, Hon’ble HC held that requirement of notice before proceeding to pass assessment order under section 62 has been consciously laid down by the Legislature in the scheme of GST regime, so that defaulter may have an opportunity to file return with late fee in case return has not been filed within the time prescribed so that penal consequences arising therefrom can be avoided. There is a salutary purpose for service of notice under section 46 before the proper officer proceeds to pass assessment order under section 62 of the Act. Even the CBIC Circular dated 24.12.2019 prescribes an SOP for service of notice under section 46 before the proper officer proceeds to assess the tax liability of a return defaulter under section 62 of the Act. Moreover, sub-section (2) of section 62 further provides that if within thirty days valid return has been filed, assessment order shall be deemed to have been withdrawn, the reason being that in case the return has not been filed even after proper service of notice under section 46 of the Act, the penal consequences flow out of such an order passed under section 62 of the Act.

Bail Granted – The petitioner has allegedly cheated the Department to the tune of ₹ 11.72 Crore by producing fake invoices – Mansoor Ali v. Superintendent of GST & CE and Ors., Crl.O.P.No.3370 of 2022 – Hon’ble Madras High Court

Bail Granted – Alleged issuing invoices only without actual supply of goods with the motive to earn benefits by fraudulent means – Prateek Garg and Akshit Bansal v Intelligence Officer, DG of GST Intelligence and Ors., Criminal Misc. Petition (Main) No. 119/120 of 2022 – Hon’ble Himachal Pradesh High Court

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