Download .pdf version, to share it with your colleagues – link here.
The issue was remanded for denovo proceedings as the SCN was vague and impugned order was vague and non-speaking: Hon’ble Gujarat High Court
In Sing Traders v. State of Gujarat, R/SCA No. 6315 of 2022, the Hon’ble HC held that on bare perusal of the contents of the show cause notice as well as the impugned order, we find that the said show cause notice is absolutely vague, bereft of any material particulars and the impugned order is also vague and a nonspeaking order. We quash and set aside the impugned order and remit the matter to the Respondent No. 2 for denovo proceedings in accordance with law. In view of the fact that we have quashed the order of cancellation of GST registration, the GST registration stands revived.
Detention/Seizure order is quashed as there was no attempt to evade the tax: Hon’ble Madras High Court
In Algae Labs Pvt. Ltd. v. State Tax Officer – I, Tirunelveli, Writ Petition (MD) No. 4958 of 2022 and W.M.P. (MD) No. 4073 of 2022, S. 129 proceeding initiated on the ground that the address of the consignee mentioned was not a place mentioned in the GST Registration of the petitioner. After that, the petitioner amended the GST registration by including the aforesaid address. The goods were all tax paid. Hon’ble HC quashed the order as there was no attempt to evade the tax.
The department has again overlooked the guidelines for provisional attachment; the proper officer to ensure that their action of the provisional attachment should not hamper normal business activities of the taxable person: Hon’ble Gujarat High Court
In Arya Metacast Pvt. Ltd. And Ors. v. State of Gujarat and Ors., R/SCA No. 2787 of 2022, Hon’ble HC held that in the facts of the case, undisputedly, the Respondent No. 2 has not only provisionally attached the stock of goods lying at the factory premise of the writ applicants, at the same time, the Respondent No. 2 has also provisionally attached the demat account and current account of the writ applicants. These are the valuable assets of the writ applicants, more particularly, raw material and the finished goods are valuables which are otherwise necessary for running of the business of the applicants. Even operating the demat account and current account are essentially required for the routine business of the writ applicants. Time and again, this Court as well as even the instructions instructions issued by the higher authority of the respondents, has directed the proper officer to ensure that their action of the provisional attachment should not hamper normal business activities of the taxable person. Even thereafter this Court vide judgment dated 27.01.2022 passed in Special Civil Application No. 188 of 2022 in the case of M/s. Utkarsh Ispat LLP Vs. State of Gujarat had an occasion to deal with the similar facts whereby the respondent authorities have provisionally attached goods, stock and receivables and also bank accounts. This Court did not approve the provisional attachment of the goods, stock and receivables, more particularly, when the entire stock and receivables have been pledged and a floating charge has been created in favour of the Kalupur Commercial Bank Limited for the purpose of availing the cash credit facility with the provisional attachment of the goods, stock and receivables the entire business will come to a standstill. Provisional Attachment quashed and set aside.
Lack of enquiry and lack of reasonable doubt, the continued seizure and confiscation as also the demand of tax and penalty is based solely on presumptions and conjectures: Hon’ble Allahabad High Court
In M/s A.S, Enterprise v. Commissioner of State Tax and Ors., WTAX No. 1126 of 2021, Hon’ble HC held that there is no dispute to the fact that the documents that were produced by the petitioner though at the stage of the show cause notice were original tax invoices issued by the petitioner. No enquiry was made to doubt the genuineness of such tax invoices or to doubt the date of issue of such invoices. Thus, all tax invoices produced by the petitioner to cover the disputed goods are dated 31.07.2021. No enquiry appears to have been made from the revenue authorities in the State of Punjab to confirm if the transactions were genuine. Then, it is not the case of the revenue that the goods found transported were different from the goods disclosed in the tax invoices produced by the petitioner. No enquiry was conducted by the respondent authorities either from the purchasing dealers or the Assessing Authority to doubt the transaction at the end of the consignee. In view of the above lack of enquiry and lack of reasonable doubt, the continued seizure and confiscation as also the demand of tax and penalty is based solely on presumptions and conjectures. While the mistake claimed by the petitioner gave rise to the valid suspicion with the revenue authorities inside State of U.P. as to the genuineness of the transaction as an inter-state sale claimed (at that stage orally), however, upon furnishing of the original tax invoices at the stage of the show cause notice itself, initial onus that rested on the assessee was discharged. Thereafter, it was for the revenue authorities to conduct proper enquiry and or lead other evidence to establish that the tax invoice being set up by the petitioner were bogus or otherwise not referable to the transaction in question. Genuineness of the tax invoice once not doubted is prima facie primary evidence as to the genuineness of the transaction. The petitioner is a registered dealer. He has issued tax invoice after charging Integrated Goods and Services Tax. That evidence being undoubted, the seizure and confiscation and consequent demand of tax and penalty is based on no cogent material and evidence. Impugned order set aside.
Harassment by public authorities is socially abhorring and legally impermissible which causes more serious injury to society: Hon’ble Allahabad High Court
In M/s Calcutta South Transport Co. V. State of U.P. and Ors., WTAX No.406 of 2022, Hon’ble HC held that once the order of confiscation dated 29.11.2020 and the order of first appellate authority dated 28.06.2021 were quashed by this Court by judgment dated 15.11.2021, the order of confiscation stood eclipsed from the very date of issuance. There is no order of confiscation in existence and, yet, the truck of the petitioner is being unauthorisedly and illegally detained by the respondent no.2. About 18 months have passed since the detention of the aforesaid truck without any valid order for confiscation or any proceeding of confiscation in existence, yet, the truck in question is being detained by the respondent no.2 arbitrarily, illegally and un-authorisedly, resulting in harassment of the petitioner. It is settled law that if a public functionary acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. Harassment by public authorities is socially abhorring and legally impermissible which causes more serious injury to society. In modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention for compliance of order of this Court, linger on leaving the petitioner to run from one end to other with no result. Therefore, award of compensation for unauthorised, arbitrary and illegal detention of the truck of the petitioner by the respondent authorities would not only compensate the petitioner for loss suffered by him but it would also help in improving work culture and public confidence in rule of law. The principles of law aforestated also find support from the law laid down by Hon’ble Supreme Court in Lucknow Development Authority vs. M.K. Gupta; (1994) 1 SCC 243 and N. Nagendra Rao and Company vs. State of Andhra Pradesh; (1994) 6 SCC 205. Release of Truck and Cost of INR 5000/-
Bail Allowed:
In Rohit Rastogi v. UOI and Ors., Cri. Misc. Bail Application No. 8984 of 2022 – Alleged offences under Sections 132(1) (b) (c) & (i) of CGST Act, 2017 – Hon’ble Allahabad High Court
In A. Satya Sainath v. The State of Telangana, Criminal Petition No. 9396 of 2021 – failure to file GSTR3B till date – indulging in fraudulent transactions by issuing tax invoices to the registered persons enabling them to utilize the input tax credit – Hon’ble Telangana High Court
In Vipul Jindal v. State of Haryana, CRM-M-3550-2022 (O&M) – fake transactions by floating bogus firms – framing of charges, not done – non-proceeding with the trial – offences punishable under section 132 of the Haryana Goods and Services Tax Act, 2017 – Hon’ble Punjab and Haryana High Court
The author may be reached at abhishek@gstivy.in*