HIGH COURTS
BOMBAY HIGH COURT
AMIT KUMAR SHUKLA
V/S
UNION OF INDIA & ORS
[SUNIL P. DESHMUKH & ABHAY AHUJA, JJ.]
WRIT PETITION (ST.) NO. 9335 OF 2021
Date of Decision: May 6, 2021
Bail- Fraudulent ITC availed – Absence of supply of goods – premises short of any goods – investigations pending to search co- conspirators- Held considering scale of scam and involvement of petitioner bail is rejected
The petitioner was arrested on grounds of availing fraudulent ITC without any supply of goods. The respondents contended that the petitioner is one of the key conspirators in the present case since the premises of the dealer were found empty and moreover, the petitioner is not co-operating with the investigation. The co-conspirators who were participating with the petitioner are absconding and are not joining the investigation. Investigations for ascertaining their role are going and there is a possibility that the petitioner could temper the evidence or influence the witnesses. The court has thus held that considering the scale of the alleged scam and the involvement of the petitioner. They are not inclined to interfere with the investigation at this stage. Hence bail is rejected at this stage. The petitioner may pursue other remedies available.
MADRAS HIGH COURT
KRISHNA MURARI SINGH
V/S
UNION OF INDIA & ORS
[SUNIL P. DESHMUKH & ABHAY AHUJA, JJ.]
WRIT PETITION (STAMP) NO. 9767 OF 2021
Date of Decision: May 6, 2021
Bail – offence u/s 132 of CGST Act – considering that petitioner has responded to summons, attended dates, not tampered with evidence, deposited a huge sum already and willing to deposit more money under protest, Bail is granted
The petitioner was accused of committing offence under section 132 of the CGST Act, 2017 for which he was arrested. A bail is sought in this regard. The Hon’ble Court has allowed the bail application considering the factual position that the petitioner had responded to the summons and attended the dates. No evidence that the petitioner had tempered with the documents or has ever tried to influence the witness is found. Further, under section 167 a person cannot be kept in detention beyond the period for 60 days if investigation relates to offence punishable with imprisonment for a term not less than 10 .The petitioner has paid an amount of Rs. 45 Lacs and is ready to deposit Rs. 5 Crores under protest towards the alleged amount of tax evasion to exhibit his bonafides.Thus, writ is allowed.
MADRAS HIGH COURT
SHRIRAM CITY UNION FINANCE LTD
V/S
THE PRINCIPAL COMMISSIONER OF GST AND CENTRAL EXCISE,
[Dr. Anita Sumanth, J]
W.P. No.832 of 2020 And WMP. No.1004 of 2020
Date of Decision: March 12, 2021
Transitional credit – show cause notice served for recovery of the same – Hon’ble court has viewed that appropriate term would be reversal and not credit- objections to be put forth by petitioner and accordingly order shall be passed by the authorities
Form Tran1 was audited by the GST department and the officer was of the opinion that the availment of cenvat credit on the services related to provision of food, accommodation and travels was not eligible. A show cause notice was issued where the officer refers to ‘recovery’ of the cenvat credit. However, the court has viewed that the appropriate term to have been used would be ‘reversal’ and not recovery at the stage of show cause notice. The petitioner may put out its objections before the department with regards to the proposed reversal of carried forward of ITC. The objection would be considered and the order would be accordingly passed. The writ is dismissed.
MADRAS HIGH COURT
SRI MUNIAPPA STEELS
V/S
THE ASSISTANT COMMISSIONER (ST)
[Dr. Anita Sumanth, J]
W.P. No.10489 of 2019 And WMP No.11086 of 2019
Date of Decision: April 27, 2021
Natural justice – Assessment order – Assessment order passed based on statement given by third party without hearing the petitioner or letting it put forth its objections – impugned order set aside – speaking order to be passed after hearing the petitioner.
A writ has been filed by the petitioner contending that the assessment order was passed by the department without hearing the petitioner. The said assessment order was passed based on the statement given by the third party dealer and the petition ought to have been granted opportunity to peruse the statement and put forth its objections to the same. Contesting the said order on grounds of violation of natural justice, a writ is filed before the Hon’ble High Court. The impugned order is set aside and the petitioner shall afforded an opportunity of hearing to put out its submission and file objections and consequently a speaking order shall be passed by the officer.
MADRAS HIGH COURT
CARLSTAHL CRAFTSMAN ENTERPRISES PRIVATE LIMITED
V/S
THE UNION OF INDIA
[Dr. Anita Sumanth, J]
W.P. No.11119 of 2020
Date of Decision: April 23, 2021
Transitional credit – inadvertent error/ mistake – rectification of error denied by department contending enough opportunity already granted – High court has allowed rectification of error it being a mere human error
While carrying forward credit from the erstwhile VAT regime to the GST regime an inadvertent error had crept into the form. While attempting to correct the error, yet another mistake occurred in the table 7D of the form. A request for rectifying was made but rejected by the department. The revenue had contended that there was enough opportunity already given to rectify the mistake but it wasn’t done. The Hon’ble Court has held the revenue does not dispute that it was an error inadvertent constituting a human error. The petitioner is thus permitted to transition the credit. The consequence of such transition is only the availment of credit and not the utilization itself which is a matter of assessment and can be looked into by the assessing officer. Therefore, the respondent will enable the modification of the form. The writ is thus allowed.
MADRAS HIGH COURT
TVL GOKUL TRADERS
V/S
THE DEPUTY STATE TAX OFFICER (ST)
[Dr. Anita Sumanth, J]
W.P. No.10015 of 2021 And WMP No.10642 of 2021
Date of Decision: April 22, 2021
Attachment of bank account – interim relief sought – No details being furnished regarding available bank balance, no direction can be given to set aside apportion of amount and permit operation thereof – petition disposed of –
The petitioner has challenged the order of assessment which was posted to petitioner through email. Service by email is an accepted mode of service. Regarding the interim relief sought by the petitioner that is for lifting of attachment of bank account pending appeal, the Hon’ble Court has held that the same cannot be considered as the details regarding the balance available in the bank account are not placed before the court. Had the same been produced, they could have given a direction to the authorities to set aside a portion of amount in satisfaction of the dues and permit operation of the bank account. The petitioner may file an appeal with an application for an interim protection. Petition is thus disposed.
MADRAS HIGH COURT
SUPRIMKUMAR JITENDRABHAI PATEL
V/S
STATE OF GUJARAT
[A.S. SUPEHIA, J]
R/CRIMINAL MISC.APPLICATION NO.1724 of 2021
Date of Decision: May 3, 2021
Bail – Fraudulent ITC availed – aspects like young age, role of accused , amount of tax evasion etc have been considered and bail is granted on furnishing of a personal bond and one local surety of the like amount
Allegedly the applicant has generated e-way bills of 16 firms without showing the identity of the purchaser and seller thereby evading tax. Thus a bail application is filed by the petitioner. The Hon’ble Court has considered certain aspects while granting regular bail to the applicant like the role attributed to the accused, age of the applicant being 30 years, applicant being under judicial custody since December 2020, total tax evasion coming to around Rs 16Lacs approximately, the investigation being over and the offence is punishable with maximum 5 years imprisonment. Thus bail is granted to the applicant on furnishing of a personal bond and one local surety of the like amount with the satisfaction of the Court.
MADRAS HIGH COURT
RAMAKRISHNAN MAHALINGAM
V/S
STATE TAX OFFICER (CIRCLE)
[Dr. Anita Sumanth, J]
W.P. No.15081 of 2020 And WMP.Nos.18799, 18801 & 18797 of 2020
Date of Decision: April 30, 2021
Registration certificate – revocation of – application filed for revocation – respondents contend that registration could be revoked upon satisfying tax dues – Honble High court has allowed writ holding that authorities cannot embark upon process of assessment in guise of considering revocation – Assessment can be done only u/s 73
The registration certificate was cancelled on the grounds of non filing of returns. However, under section 30 an application was filed for revocation of the order of the cancellation. The respondents contended that the registration could be revived upon the petitioner satisfying the tax dues and substantiating its claim of ITC. The Hon’ble High Court has held that in the guise of considering the application for revocation, the authorities cannot embark upon the process of assessment as assessment can be made only in terms of Section 73 or other provisions after following the procedure. Thus the respondents shall pass an order reviving the registration of the petitioner after which the assessment can be taken up. The writ petition is thus allow.
TELANGANA HIGH COURT
VIJAY METAL
V/S
THE DEPUTY COMMERCIAL TAX OFFICER
[M.S.RAMACHANDRA RAO & T.VINOD KUMAR, JJ]
WRIT PETITION NO. 2869 OF 2021
Date of Decision: April 28, 2021
Detention of goods – transporter took 2 sets of goods- one purchased by petitioner from the seller as well as another consignment (lighter in weight) sent by the same selling dealer, to be unloaded at Hyderabad and Adhoni respectively – goods detained in transit on grounds of absence of invoice and e way bill for goods destined to Adhoni – explanation tendered that goods for Adhoni were lighter in weight and the transporter planned to unload them first at Adhoni and take the heavier consignment to Hyderabad thereafter for unloading for the sake of convenience – explanation rejected by authorities as Hyderabad was a nearer destination and Adhoni was further away – reason found justified by Hon’ble High court – relief given accordingly
The petitioner had purchased goods from Firm A to be sent to Hyderabad. The transporter picked up another set of goods from the same seller company A to be further taken to Adhoni. Since the goods destined for Adhoni were lighter in weight than the goods purchased by the petitioner, the goods destined for Adhoni were loaded on the top of the goods of petitioner in transporter’s conveyance. For the sake of convenience the transporter planned his route in such a way that the lighter goods would be unloaded at Adhoni first and then he would come back to Hyderabad to unload the goods of by the petitioner. The goods and transit were detained on the ground that there was no invoice or e-way bill for the goods to be transported to Adhoni. The respondents were contended that since Hyderabad was a nearer destination and Adhoni was further ahead the transporter ought to have taken the goods first to Hyderabad and then to Adhoni. The Hon’ble Court has held that the impugned order has been passed by the officer without application of mind. It is understandable that the lighter consignment is easier to be unloaded first. The impugned order has been set aside and writ is allowed.
GUJARAT HIGH COURT
BHAVESH KIRITBHAI KALANI
V/S
UNION OF INDIA
[SONIA GOKANI & VAIBHAVI D. NANAVATI, JJ]
R/SPECIAL CIVIL APPLICATION NO. 16360 of 2020
Date of Decision: April 19, 2021
Provisional attachment – bank account freezed – no information supplied to applicant – Held – no proceeding against the application under section 62,63,64,67,73 and 74 of the Act are pending there is no reason to invoke section 83.
Bank account of the petitioner was freezed under section 83 of the Act. On seeking information regarding the reason behind it the manager did not supply any information. Hon’ble Court has held that since no proceeding against the application under section 62,63,64,67,73 and 74 of the Act are pending there is no reason to invoke section 83. The action of freezing is harsh and should be resorted to as provided under the statute. It is a drastic power, the authority concerned cannot be oblivious of the consequences of provisional attachment. The proceedings are initiated in connection with the third parties Hence invoking the power under section 3 is not available with the respondents. Therefore, the court has allowed the provisional attachment to be lifted.
ALLAHABAD HIGH COURT
NEERAJ KASYAP
V/S
UNION OF INDIA AND ANOTHER
[Saumitra Dayal Singh , J.]
CRIMINAL MISC ANTICIPATORY BAIL APPLICATION NO. 6952 of 2021
Date of Decision: April 30, 2021
Anticipatory bail – Sought as petitioner is summoned to participate in an inquiry against some other trader – Held No reason to believe that any inference is drawn against the applicant – no risk of arrest involved – bail application rejected
The applicant has approached the Hon’ble Court seeking an anticipatory bail as it has been summoned u/s 70 of the CGST Act with regard to an inquiry that is being made against the trader A who is accused of issuing bogus invoices. The department has summoned the applicant to participate in the inquiry. The court has held that there is no reason to believe that any inference is being drawn by the authorities against the applicant presently. Merely because it has been called to participate in the inquiry against the trader, it does not involve and automatic accusation against the applicant and it also does not involve the risk of his arrest. The bail application is being rejected.
TRIPURA HIGH COURT
SARVASIDDHI AGROTECH PVT. LTD.
V/S
THE UNION OF INDIA
[AKIL KURESHI, C.J. & S.G. CHATTOPADHYAY, J]
W.P. (C) No.279/2021
Date of Decision: April 20, 2021
Search – Branded rice – Rice seized on search of premises – contention that supply existed of unbranded rice while branded rice was used for internal purposes not accepted by authorities – writ filed – Held that the conclusion was based on material on record- sizeable quantity seized shows that petitioner was dealing in branded rice- tax is demanded on rice already supplied and not stored – no evidence to show that branded rice was meant for internal purposes
After a search was conducted, it was found that the petitioner was supplying branded rice instead of the unbranded rice as contended by it. The department seized some invoices, documents and some sizeable packages of rice. Tax, interest and penalty was imposed accordingly. The appellant authority confirmed the finding of the adjudicating authority as the authorities did not accept the petitioner‘s ground that the seized rice was being used for its internal use and purposes. On filing of writ, the Hon’ble Court has held that firstly, conclusion of the authorities is based on assessment of materials on record. Secondly, the seizure of sizeable quantity of packaged branded rice indicates that the petitioner is dealing in such product. Thirdly, tax is not being demanded on rice stored but on the quantity of rice which has been already supplied in the bill book. Moreover, the defence that the rice lying in godown was used for internal purposes is not supported by any evidence. Therefore, the petition is dismissed.