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The admitted tax on self-assessment being not deposited within the period stipulated, the petitioner is liable to compensate the State Government by way of interest which is provided for under the statute: Hon’ble Orissa High Court
In M/s P.K. Ores Pvt. Ltd. v. Commissioner of Sales Tax and Anr., W.P.(C) No. 10335 of 2022, Hon’ble HC held that when the levy of interest emanates as a statutory consequence and such liability is a direct consequence of non-payment of tax, such a levy is different from the levy of interest which is dependent on the discretion of the assessing officer. The default arising out of non-payment of tax on an admitted liability in the case of self-assessment attracts automatic levy of interest, whereas the default in filing incomplete and incorrect return attracts best judgment assessment in which the levy of interest is based on the adjudication by the assessing officer.
Once the entire tax and penalty imposed on the petitioner and secured by the Bank Guarantee was fully satisfied by invoking the guarantee, there cannot be any insistence of a further payment of pre-deposit for filing an appeal: Hon’ble Kerala High Court
In KL Johar Company v. The State Tax Officer and Ors., WP(C) No. 6662 of 2022, Hon’ble HC held that as rightly pointed out by the learned counsel for the petitioner, since the bank guarantee furnished by the petitioner is alleged to have been invoked, the said matter ought to have been considered by the Appellate Authority. Once the entire tax and penalty imposed on the petitioner and secured by the Bank Guarantee was fully satisfied by invoking the guarantee, there cannot be any insistence of a further payment contemplated under section 107(6)(b). This aspect was not considered in Ext. P5. Failure to consider the alleged encashment of bank guarantee has also rendered the impugned order perverse.
No separate application for seeking refund of IGST, shipping bill will suffice: Hon’ble Delhi High Court
In M/s Gujarat Nippon International Pvt. Ltd. v. UOI and Ors., W.P.(C) No. 11226/2021, Hon’ble HC held that A separate application for refund was not required to be filed. The shipping bills would operate as a refund application as envisaged under Section 54 of the CGST Act read with Section 16 of the IGST Act, as also Rule 96(1) of the CGST Rules. Interest @6% granted.
Pre-show cause notice consultation was mandatory under the unamended Rule 142 (1A): Hon’ble Delhi High Court
In M/s Gulati Enterprises v. CBIC and Ors., W.P.(C) 5407/2020 & CM APPL. 19473/2020, Hon’ble HC held that it is noted that with effect from 15.10.2020 i.e., after the impugned show cause notice was issued, Rule 142(1A) has undergone a change, inasmuch as the word ‘shall’ has been replaced with ‘may’. As to what would be the impact of the amendment need not be considered by us in this case, as admittedly the show cause notice was issued prior to 15.10.2020 i.e., on 21.05.2020, having regard to the position which obtained prior to 15.10.2020, we would have to hold that pre-show cause notice consultation was mandatory under the unamended Rule 142 (1A). A voluntary statement cannot substitute a statutory notice, which is contemplated under Rule 142(1A) of the 2017 Rules. Impugned show cause notice dated 21.05.2020 is set aside.
The procedures prescribed under the aforesaid Rules should not be applied strictly so as to defeat the legitimate export incentives, which an exporter otherwise would have been entitled to but for the technicality involved in the system: Hon’ble Madras High Court
In M/s ABI Technologies v. The Assistant Commissioner of Customs, Tuticorin, W.P(MD). No. 4562 of 2022, Hon’ble HC held that the refund of tax/duty paid on exports has been long recognized under the provisions of the Central Excise Act, 1944 r/w Central Excise Rules, 1944 and later under the provisions of the Central Excise Rules, 2002. These Rules have been incorporated under the GST regimes, except that under the GST regime, most of the proceedings are system driven as has been stated by the learned Senior Standing Counsel for the respondent. The export incentives have been given to encourage exports, so that there is inward remittance of foreign currency. The procedure prescribed under the aforesaid Rules is not intended to defeat such legitimate export incentives, if indeed on facts there is export on payment of integrated tax under the provisions of IGST Act, 2017 r/w CGST Act, 2017. The procedures under Rule 96 of CGST Rules, 2017 cannot be applied strictly to deny legitimate export incentives that are available to an exporter – the procedures prescribed under the aforesaid Rules should not be applied strictly so as to defeat the legitimate export incentives, which an exporter otherwise would have been entitled to but for the technicality involved in the system.
The date of service of the order will be from the date of service of Removal of Difficulties order and not normal order: Hon’ble Allahabad High Court
In M/s Vedant Construction v. State of U.P. and Ors., Writ Tax No. – 771 of 2022, Hon’ble HC held that the Standing Counsel does not dispute the fact that the issue involved in the present case is squarely covered by the judgment of this Court in M/S J.K. Infratech vs. Additional Commissioner & Anr. In view of the Removal of Difficulties order dated 25.6.2020 and the fact that the order dated 26.11.2018 was uploaded on the common GST portal, the order dated 26.11.2018 would be deemed to have been served on the petitioner on 31.8.2020. The limitation for filing the appeal stood suspended through different orders of the Supreme Court till 28.2.2022. The appeal filed by the petitioner cannot be held to be time barred as the same was filed on 1.12.2021. The matter is remitted back to the appellate authority to hear and decide the appeal filed by the petitioner on merits treating the same to have been filed within time.
There was no deliberate and willful attempt on the part of the respondent / writ petitioner to evade payment of tax so as to justify invocation of the power under Section 129 of the Act: Hon’ble Calcutta High Court
In Assistant Commissioner, Durgapore Range v. Ashok Kumar Surekha, MAT 470 of 2022 With I.A. No.CAN 1 of 2022, Hon’ble HC held that the case has to be approached by considering the bona fides of the transaction as to whether the case warrants detention of the goods and collection of tax and penalty. Admittedly, the first e-way bill dated 7th September, 2019 was valid upto 9th September, 2019. Therefore, in the absence of second e-way bill, the tax authorities at Durgapur could not have intercepted or detained the vehicle. Therefore, the explanation offered by the respondent / writ petitioner was an acceptable explanation and a case cannot be made out that there was a deliberate and willful attempt on the part of the respondent / writ petitioner to evade payment of tax so as to justify invocation of the power under Section 129 of the Act.
Under Section 161 of the Act any rectification, which adversely affects any person is possible only after following the principles of natural justice: Hon’ble Andhra Pradesh High Court
In M/s S.P.Y. Agro Industries Limited v. UOI and Ors., WP No. 256 of 2022, Hon’ble HC held that Section 62 of the Act does not anywhere speak about imposing a penalty. It only speaks about liability for payment of interest subsection (1) of Section 50 or for payment of late fee under Section 47 of the Act. Further, if the penalty is to be imposed in cases, which are not covered under Section 62 or Section 63 or Section 64 or Section 73 or Section 74 or Section 129 or Section 130, the authority can impose penalty after giving reasonable opportunity of hearing such person – under Section 161 of the Act any rectification, which adversely affects any person is possible only after following the principles of natural justice. Since the order impugned substantially affects the assessee as penalty is sought to be imposed, which demand did not form part of notice dated 13.08.2020, without giving an opportunity of hearing, the orders under challenge are set aside. However, the respondents are permitted to proceed further by issuing a fresh notice and pass orders in accordance with law.
The author may be reached at abhishek@gstivy.in*