SUPREME COURT OF INDIA
Paramvir Singh Saini
v.
Baljit Singh & Others
[R. F. Nariman, K.M. Joseph & Aniruddha Bose, JJ]
SLP (CRIMINAL) NO.: 3543 of 2020
Date of Decision: December 2, 2020
Installation of Videography/ CCTV cameras during investigation—Apex court passed orders dated 3/4//2018 for installation of COB for implementing use of videography during investigation—no real action taken at state level and central level—hence vide this order, the Honble Court has directed for implementation of the same within a period of 6 weeks.
The Apex Court had earlier directed the Ministry of Home affairs to set up COB (Central Oversight Body) to implement for use of videography in the crime scene during investigation vide order dated 3/4/2018(SLP No 2302). Since nothing was done in pursuance to this, the Apex court has given further orders to be complied within a period of 6 weeks in letter and in spirit with a firm plan.
Hence, the Oversight committees should be constituted at state (SLOC) and district levels(DLOC).The duties of both have been enlisted by the Court. The finance has to be looked in to be the Finance departments of the respective states/ UTs. Working, maintainance, recording is to be looked after by the SHO of the Police station.
The state and UT governments shall ensure that CCTV cameras are placed in every police station at all points, lockups, corridors, reception, verandah etc. They must have night vision and audio and video footage. Data shall be preserved for 18 months mandatorily.
In case of serious injury or death in custody, the complainant may reach out to Human right commissions as well as Human rights courts which would be set up u/s 30 of the Protection of Human Rights Act. The said court or commission shall then summon the CCTV camera for further probe. The obligations on part of Union of India have also been enlisted in detail in similar manner.
SUPREME COURT OF INDIA
State of Jharkhand
v.
Brahmputra Metallics Ltd.
[Dr. Dhananjaya Y. Chandrachud, J]
Civil Appeal No 3860 of 2020
Date of Decision : December 1, 2020
Doctrine of legitimate expectation—industrial policy of 2012 envisaged issue of notification within one month to grant deduction to units setting up captive power plant for 5 years—notification issued 3 years later prospectively—petitioner deprived of benefit of three years as envisaged by policy—writ accepted on grounds of promissory estoppel—appeal before supreme court by department—doctrine of legitimate expectation envisages fairness in dealings by state—wider scope than promissory estoppel— representation of state induced legitimate expectation in instant case—no reason given by state for delay in issue of notification—trust of state violated—respondent permitted to deduction—appeal disposed of
Where the state had notified an industrial policy 2012 envisaging that notifications would be issued by the department within 1 month granting exemption to industrial units setting up captive power plants from payment of 50% duty on electricity for a period of five years starting from the next financial year from the date of production; the state government issued such exemption notification three years later( Jan 2015) with a prospective effect. Hence, a writ was filed on the ground that the industrial unit would be entitled to benefit for a much lesser period. The Hon’ble High court decided in favour of the assessee on the grounds of promissory estoppel. The state has thus appealed before the Supreme Court.
It is held that the representation made by the state gave rise to ‘legitimate expectation’ on their behalf regarding deduction in electricity duty for the next five years. However, due to delay in issue of notification and that too with prospective effect, trust in state is violated. There is no justification given by state on the delay, therefore action of state is arbitrary ad violative of A-14.
Though the High court agreed to grant relief on a different footing, the concept of legal expectation has a wider scope and is founded on fairness in government dealings. Hence the respondent (industrial units) is entitled to relief for the financial years following the commencement of production.
SUPREME COURT OF INDIA
Skill Lotto Solutions Pvt Ltd
v.
Union of India & Ors
[Ashok Bhushan, J]
W.P. No. 961 of 2018
Date of Decision: December 3, 2020
Lottery Tickets—Whether taxable—whether rightly included in the definition of ‘goods’ u/s 2 of CGST Act—these are actionable claims included in the definition of goods and it is in conformity with the provisions of the Constitution of India( A 366 and A 246A); the rationale behind inclusion of lottery, betting and gambling in the actionable claim and excluding others is not questionable as taxing these three has been done with the aim of regulating the practices for the welfare of the state; transaction value is calculated for determining the taxable supply for levy of GST, hence excluding prize money from face value is not permissible as per S 15 of the Act
A writ is filed challenging the levy of tax on lottery tickets which is a consequence of inclusion of them under the definition of goods under S. 2(52) of CGST Act, 2017.
Whether writ petition is maintainable in the instant case: held yes, since violation of Article 14 is alleged the writ is maintainable under A- 32. Moreover the Apex court has earlier entertained writs on same subject of lottery in other cases where in the petitioners had challenged the ban on sale of lottery tickets and questioned levy of sale tax by state on their sale.
What is the legal meaning of goods and whether actionable claim is included in terms of S. 2(52) of CGST Act, 2017? The definition of goods as given in the section above is in conformity and not contrary to the Articles of Constitution of India. A 366 clause 12 contains an inclusive definition thereby intending to not give any restrictive meaning to it and the definition given in section 2 of CGST Act is not in conflict with it. Article 246A was inserted by parliament with respect to goods and service tax which begins with a non obstante clause. Therefore, the definition does not violate any constitutional provisions of law.
This Court has held in the case of sunrise Associates that lottery tickets are actionable claims and the observation cannot be said to be obiter dicta.
Whether exclusion of lottery, betting and gambling from item no 6 of schedule III of CGST Act, 2017 is hostile discrimination and violative of A -14 of Constitution of India? Held No, these concepts have been there even before Independence and the Act of 2017 defines goods to include actionable claims and includes only these three for levy of GST, it can’t be said there is no rationale for including these three. Hence, no violation of the above mentioned Articles is observed.
Whether prize money be excluded while determining face value of tickets for levying GST? Since the value of taxable supply is calculated by calculating the transaction value in terms of S. 15 of the Act, it is not possible to exclude the prize money for determination of face value for purpose of levy of GST
The petition is dismissed.
HIGH COURTS
TELANGANA HIGH COURT
MANTHAN EDUCATIONAL SOLUTIONS PRIVATE LIMITED
v
ASSISTANT COMMISSIONER OF STATE TAX
[M.S.RAMACHANDRA RAO & CHALLA KODANDA RAM, JJ]
WP 19473/2020
Date of Decision: November 12, 2020
Natural justice—assessing authority is a quasi judicial body bound to assign reasons—rejecting the objections by petitioner to levy of tax by terming it as’ not satisfactory’ not justified—failure to assign reasons amounts to violation of natural justice
The petitioner is a dealer engaged in Food, House-keeping services, Transportation services, Security services to schools. A show-cause notice was issued proposing to levy VAT -on four items, viz., (i) Transportation services; (ii) House-Keeping services; (iii) Infra Lease services; and (iv) Mess charges.
The impugned Assessment Order was passed dropping demand of VAT on House-keeping and Transportation charges, but rejected plea of the petitioner with regard to such levy on the consideration received towards Infra Lease and Mess charges at the rate of 14.5% by simply observing that ‘explanation given by the petitioner is not satisfactory’.
A writ is thus filed.
It is held that the respondent, being a quasi-judicial authority, is bound to assign reasons in support of its decision, and cannot simply reject the objections of petitioner to the levy proposed by him on these two items by merely saying that the explanation of petitioner is not ‘satisfactory’.
The respondent is obligated to supply reasons for his conclusion and failure to do so amounts to violation of principles of natural justice.
MADHYA PRADESH HIGH COURT
SHRI SHYAM BABA EDIBLE OILS
v.
THE CHIEF COMMISSIONER AND ANOTHER
[SHEEL NAGU & RAJEEV KUMAR SHRIVASTAVA JJ.]
W.P. No.16131/2020
Dated of Decision: November 19, 2020
Show cause notice—mode of communication—impugned show cause notice sent through e mail—writ filed for no communication being made—Held Rule 142 of CGST Rules prescribes a particular mode of communication i.e. through website of revenue—principle becomes stringent when statutorily prescribed—show cause notice quashed with liberty to department to proceed as per law
The grievance of petitioner is that the show cause notice sent for raising a demand was never communicated to it. However, the department has alleged that it was sent by e mail and no response was received in respect of the notice sent.
A bare perusal of Rule 142 of CGST Rules reveals that the only mode prescribed for communicating the show-cause notice/order is by way of uploading the same on website of the revenue. It is trite principle of law that when a particular procedure is prescribed to perform a particular act then all other procedures/modes except the one prescribed are excluded. This principle becomes all the more stringent when statutorily prescribed as is the case herein. Therefore, the impugned notice is quashed.
DELHI HIGH COURT
P.V. RAO
v.
SENIOR INTELLIGENCE OFFICER, DIRECTORATE GENERAL OF GST INTELLIGENCE & ORS.
[MANMOHAN & SANJEEV NARULA, JJ]
W.P.(C.) No. 8975/2020
Dated of Decision: November 18, 2020
Appearance through video conferencing—summon issued u/s 70—writ filed seeking permission to appear through video conferencing for the reason of ill health and rising Covid 19 situation—writ dismissed as no serious ailment observed—recording of statement at this stage significant for entire investigation process—balance of convenience cannot be tilted in favour of petitioner merely because travelling from Bengaluru to New Delhi would expose him to risk of Covid 19
The company BYJUS based in Bengaluru is allegedly supplying printed copies etc for online teaching and evading tax on account of misdeclaring them under the exempted category. An investigation u/s 67 was carried out to ascertain the claim of petitioner. It was summoned u/s 70 but due to ill health and covid 19 situation it sought appearance through video conferencing which was denied.Hence a writ is filed seeking permission for appearance through video conferencing.
The certificates given by the doctors only indicate that the Petitioner is undergoing treatment of hypertension and diabetes which is not a serious ailment. The past record indicates that the petitioner avoided recording of its statement during inspection. The evidence being recorded at this stage would impact the entire investigation of tax evasion. The questioning during investigation has to be on the basis of evaluation and examination of documents. During the process of interrogation, the investigating agency may come across certain relevant facts and discoveries which are germane and crucial for concluding the investigation. The concept of balance of convenience, therefore, cannot be tilted in favour of the Petitioner to be allowed to appear through video conferencing, merely because travelling from Bengaluru to New Delhi would be a risk factor for the Petitioner of contracting COVID-19. This mere apprehension of contracting COVID-19 does not persuade us to grant the relief sought for by the present Petitioner.
KERALA HIGH COURT
v.
THE SUPERINTENDENT CENTRAL TAX AND CENTRAL EXCISE
[A.K. JAYASANKARAN NAMBIAR, JJ]
WP 20071 of 2020
Date of Decision: November 10, 2020
Cancellation of registration—Application applied for on account of transfer of business- Reason mistakenly mentioned as closure of business by applicant – No change permitted to be made after receipt of order—writ filed- Held mistake occurred apparently while making application—Respondent cannot plead helplessness – directed to pass fresh order accordingly
Mistakenly, the petitioner filed an application for cancellation of registration by mentioning the reason as ‘closure of business’ instead of ‘transfer of business.’ The petitioner contacted the respondent but it was told that change wasn’t possible as the system was already fed with the information.
It is held that the respondent cannot plead helplessness in a matter where mistake occurred apparently while filing an application and the petitioner had immediately approached the department after receipt of such order. A fresh order should be issued mentioning the reason of cancellation as transfer.
ANDHRA PRADESH HIGH COURT
SANGEETHA JEWELLERS
v.
THE DEPUTY ASSISTANT COMMISSIONER ST 1
[U. DURGA PRASAD RAO & SMT KONGARA VIJAYA LAKSHMI, JJ]
Writ Petition No.7078 of 2020
Date of Decision: October 22, 2020
Confiscation of goods—shifting of business premises—goods in transit seized—penalty imposed—Held confiscation proceedings can be simultaneously taken up u/s 129 and S 130 of the GST Act—however, firm opinion of intention to evade tax by dealer before invoking S 130 must be there- personal hearing must be granted before—mere non production of records at the moment does not falsify records produced later—reasoned order must be passed—branding the explanation tendered as an afterthought without reason is not a legally justified order
The silver ornaments being taken while shifting of business premises were seized for being not covered by documents. Penalty, tax and interest were imposed in lieu of confiscation. A writ is filed in this regard.
It is held that the respondent is legally authorised to issue the impugned proceedings in view of Section 68(3) of the CGST Act which confers power on “the Proper Officer” to intercept any conveyance and require the person in-charge to produce the documents prescribed.
The confiscation proceedings can be taken up by the authorities after exhausting the measures under Section 129(6) and also simultaneously along with Section 129 and there is no bar. However, since the phrase “with an intent to evade the payment of tax” is employed in S. 130 of the Act, the authority must form a firm opinion before invoking it.
Confiscation u/s130 will denude the citizen of his right over his property. Therefore, the authority must afford a personal hearing to the owner in terms of Section 130(4) of CGST Act, and also adduce cogent reasons for discarding the explanation offered by him. Mere non-production of the records at the inception, will not automatically falsify the records produced later. Mere branding the explanation as afterthought without reasoning will not make the order legally justified.
The reason is the live nerve of an order which are not given in the order. Therefore, the impugned order does not stand to legal scrutiny and liable to be set aside.
MADRAS HIGH COURT
TMT. A. BHUVANESWARI W/O LATE N.P. ASOGAN
v.
THE ASSISTANT COMMISSIONER
[ABDUL QUDDHOSE, JJ]
W.P.(MD)Nos.11861 and 11862 of 2013
Date of Decision: November 23, 2020
Registration—Legal heirs of deceased—Legal heirs not to apply for fresh registration after death of deceased dealer -– registration can be amended w.e.f. the date of death of deceased u/s 26 of the Act
The petitioner has challenged the order cancelling the registration of the petitioner. The said registration was applied for by the wife, as legal heir of her deceased husband who was a dealer but it was denied asking for applying fresh registration. The department contends that the registration should be applied for u/s 38 of the VAT Act.
The Hon’ble court has observed that when it is an admitted fact that the petitioner is a legal heir of the deceased dealer, legal heirs are deemed to be dealers on the death of it. Section 38(4) deals with succession by a third party to the business of the registered dealer, who has died, whereas the case on hand involves succession by legal heirs of the deceased dealer, for which S 26 of the Tamil Nadu Value Added Tax Act, 2006 gets attracted and not S. 38(4).
The amendment shall take effect retrospectively, from the date of death of the dealer
TELANGANA HIGH COURT
KAMLESH STEELS
v.
THE DEPUTY STATE TAX OFFICER AND ORS.
[M.S. RAMACHANDRA RAO & T. AMARNATH GOUD, JJ.]
Writ Petition No. 2563 of 2020
Date of Decision: November 11, 2020
Confiscation of goods—mismatch of goods in movement and documents tendered—writ filed—Held in view of circulars dt. 13.4.2018 and 14.9.2018 of the Central Board of Indirect Taxes and Customs, such detention is in violation of Rule 68 of the Rules especially when all documents were tendered at the time of checking—explanation of petitioner regarding the existence of vehicle at the said destination cannot be said to be untrue- No material on record to show any local sale being attempted to evade tax—detention for being at wrong destination without anything more is not permissible.
The goods in transit were being sent from Tamil Nadu to Secunderabad when they were detained at Jeedimetla for the reason of ‘mismatch between the goods in movement and the documents tendered’ i.e., that the goods were checked at IDA Jeedimetla.
It is explained that that the material from vendor at TN is purchased by various dealers at Hyderabad; the vehicles come to Hyderabad in groups through Outer Ring Road and all the trucks assemble at IDA Jeedimetla; and from that place, the vendor, directs them to their destinations. The vehicle of petitioner was detained at Jeedimetla when the driver was waiting for the vendor’s direction.
On filing of writ, the Court has held that the petitioner cannot be asked to avail the remedy of appeal u/s 107 of the Act in the absence of any formally order being passed by the respondent. It is not mentioned which document is defective. The explanation tendered cannot be said to be unbelievable. It is not permissible to detain a vehicle or levy penalty on the sole ground that the vehicle is found at a wrong destination without anything more. There is no material on record to show that any attempt was made by petitioner to sell the goods in local market at IDA Jeedimetla to evade tax.
The detention of the vehicle in spite of the documents being presented is in violation of Rule 68 of the Rules and the Circulars dt. 13.4.2018 and 14.9.2018 of the Central Board of Indirect Taxes and Customs.
Department cannot plead estoppel. Therefore, writ is allowed and the respondent is directed to refund the amount of petitioner.
KARNATAKA HIGH COURT
BNA TECHNOLOGY CONSULTING PVT. LTD.
v.
THE STATE OF KARNATAKA COMMERCIAL TAX DEPARTMENT BANGALORE-01.
[ALOK ARADHE & H.T.NARENDRA PRASAD, JJ]
S.T.R.P. NO.458 OF 2015
Date of Decision: November 23, 2020
Error apparent on face of record—tax on goods sold during course of import—tax charged inadvertently on goods sold while they were being imported—assessment order passed forfeiting such tax amount—Revisional order passed setting aside the assessment order—appeal dismissed by Tribunal—Held by High court that tax cannot be levied u/s 5 (2) of CST Act on sale of goods during course of import – Though the assessing officer referred to S 39 of the Act, but exercised powers u/s 69 which deals with rectification of mistake—merely wrong mentioning of sections cannot invalidate the assessment order when otherwise valid—Impugned orders of revision and tribunal quashed
The petitioner, during the course of import , inadvertently charged tax on sale of goods made to ISTRAC which is in contravention of the provisions of law. The assessing authority passed an order forfeiting the amount of said tax against which was set aside by Revisional authority and upheld by Tribunal on grounds that there is no illegality in the order passed on revision.
The Hon’ble court has held that the assessing officer has referred to Section 39(1) of the Act, however, in substance, the Assessing Officer has exercised the powers under Section 69(1) of the Act, which deals with rectification of the mistake. Since, tax cannot be levied, u/s 5(2) of CST Act, on the sale of goods during the course of import, it was an error apparent on the face of the record. The Assessing Officer in purported exercise of powers under Section 69(1) of the Act has rightly rectified the same. Merely because the Assessing Officer has referred to Section 39(1) of the Act, the same would not invalidate the order passed by it. The order passed by the Tribunal and Revisional Authority are thus quashed.
KERALA HIGH COURT
GLOW GROW HEALTH AND BEAUTY (P) LTD
v.
THE STATE OF KERALA, STATE TAX OFFICER, STATE TAX OFFICER (INTELLIGENCE)
[A.K.JAYASANKARAN NAMBIAR, J]
WP (C). No. 26533 OF 2020 (N)
Date of Decision: December 1, 2020
Assessment order—best judgment done—No payment effected by petitioner—Assessment order passed subsequently after proceeding u/s 74 of GST Act—writ filed impugning the assessment orders – Petitioner relegated to avail the statutory remedy of appeal before the first Appellate Authority
For the years 2018 and 2019 best judgment assessment orders were passed due of non filing of returns. No payment has been done after completion of the orders. Hence the department proceeded u/s 74 and completed by passing assessment orders. A writ is filed apprehending that the department would now proceed for recovery.
It is held that the challenge to the said assessment orders cannot be sustained. The petitioners are relegated to avail the statutory remedy of filing an appeal before the first appellate authority.
ALLAHABAD HIGH COURT
RANCHI CARRYING CORPORATION
v.
STATE OF U.P. AND 2 OTHERS
[Pankaj Bhatia, J.]
Writ Tax No.: 655 of 2020
Date of Decision: December 7, 2020
Principles of natural justice—improper service of notice u/s 169 of GST Act—service of notice on driver and later by affixing it on the vehicle in question—grounds taken by petitioner in first appeal not considered as no reply was given to the notices sent—writ filed- held notices ought to be sent as per the provisions of law- petitioner thus deprived of opportunity of hearing – violation of natural justice observed in the instant case
The petitioner has contended that the service of notice u/s 169 wasn’t done in the manner prescribed.
It is held that service as on the driver or a fixation of the copy of the order on the truck in question is none of the methods prescribed under Section 169 GST Act and thus it is clear that the orders were never served and the proceedings were held ex-parte. Whenever a manner is prescribed, the thing should be done in that manner alone.
The grounds taken during filing of appeal were not considered contending that no reply given for the notices sent and so the grounds taken were an afterthought. Thus, a failure of natural justice has been occasioned to the petitioner.
RAJASTHAN HIGH COURT
ADITYA GUPTA S/O SHRI ARJUN GUPTA
v.
UNION OF INDIA
[MRS. SABINA, J]
S.B. Criminal Miscellaneous 5th Bail Application No. 11595/2020
Date of Decision: December 4, 2020
Bail—offence u/s 132 of GST Act, 2017—case listed for pre charge evidence before trial court—fifteen out of forty five witnesses examined— no chances of trial ending soon—though charges are serious but petitioner already been in custody for about two years- Bail granted with conditions—
The respondents have contended that the accused had committed fraud to the tune of ₹ 22 Cr. by creating fictitious firms and had claimed tax input credit.
It is observed that the petitioner is in custody for the last more than two years and maximum punishment to be imposed on the accused, if convicted, is five years. Now the case is listed before the trial court for recording of pre-charge evidence and the trial may not be concluded at an early date.
The appellants are entitled to the grant of bail with certain conditions.
ALLAHABAD HIGH COURT
ANSARI CONSTRUCTION
v.
ADDITIONAL COMMISSIONER CENTRAL GOODS AND SERVICES TAX (APPEALS) AND 2 OTHERS
[PANKAJ BHATIA, J.]
Writ Tax No. – 626 of 2020
Date of Decision: November 24, 2020
Registration—revocation of—cancellation on account of alleged failure to file returns for six consecutive months—application for revoking filed—denial of as no verification could possibly be done—writ filed—held that no verification done by department to verify correctness of assertions of petitioner shows lack of legally trained minds—show cause notice vague and short of pointing any fault of assessee—unacceptable—order rejecting application for revocation is arbitrary—revocation permitted
The registration was cancelled on the ground of failure to file returns for six continuous months. An application for revocation was filed explaining that the returns were complete and there weren’t any pending dues. The application for revocation was rejected without verifying the portal and the order was affirmed in appeal.
It is held by the Hon’ble High court that the show cause notice issued is unacceptable as it does not record any shortcoming on the part of the assessee and doesn’t explain what was required. The said show cause notice clearly highlights that serious quasi-adjudicatory functionaries are being discharged by persons who do not have a legally trained mind and are entrusted in discharging functions affecting huge revenues. The order rejecting the application of the petitioner is wholly arbitrary and there appears no effort to verify the correctness of the assertions made by the petitioner.
Considering the department’s stand that the petitioner has fulfilled all its obligation within time, the registration is revoked with costs on department.
ALLAHABAD HIGH COURT
KONE ELEVATOR INDIA PRIVATE LTD.
v.
COMMISSIONER OF COMMERCIAL TAX U.P. LUCKNOW
[PANKAJ BHATIA, J]
Sales/Trade Tax Revision Defective No. 33 of 2020
Date of Decision: November 26, 2020
Stay of recovery— Enhanced turnover—Tribunal directed for stay of recovery to the extent of 90% of tax demanded despite recording that prima facie case is made out and it would cause undue financial hardship—revision filed—Held by High court that order of Tribunal is arbitrary as it directed deposit of 10% despite recording prima facie case was made out—Appeal to be heard on merits by first appellate authority—revision answered in favour of assessee.
In the instant case, an appeal was filed before Tribunal against the order of DETC wherein stay of demand raised was granted upto 65% of the tax. However, on appeal, the Tribunal recorded that at that stage prima facie case was made out and direction for deposit of the entire amount would cause undue financial hardship to the appellant. Despite recording this, it proceeded to stay only 90% of the tax. The rest 10% was deposited by the petitioner.
On Revision, the Hon’ble High Court has held that it is well settled that the phrase ‘prima facie case’ would include even an arguable case. Under what circumstances the Tribunal directed for deposit of 10% of the amount even after having recorded that a prima facie case was made out and the deposit would cause financial hardship to the revisionist in not understandable. The order is wholly arbitrary, illegal and contrary to the law laid down in catena of judgements in the case of ITC v. Commissioner Appeals (MANU/UP/0515/2003:2005 (184) E.L.T. 347).
The question is decided in favour of the assessee. The first Appellate Court shall hear the appeal on merits.
ALLAHABAD HIGH COURT
MONDELEZ INDIA FOODS PVT LTD
v.
COMMISSIONER OF CENTRAL TAX
[PANKAJ BHATIA, J]
S.T Revision No 85 of 2020
Date of Decision: December 2, 2020
Stay application—‘prima facie case’—whether Tribunal can refuse stay on deposit to be made ignoring prima facie case?—After the appellate authority had granted stay to the extent of 50% of tax to be deposited, appeal filed before Tribunal—Dismissal of giving no further relief while recording that Tribunal couldn’t consider the ‘prima face case’ at this stage as it would affect the final adjudication—Revision filed—Held by High court that Tribunal is bound to consider prima facie case when a stay application is in question—being contrary to law, the order of Tribunal is set aside and only 10% of deposit is required to be made
After an interim stay in respect of deposit to be made as a condition for stay was passed by the Hon’ble High court, the matter was remanded by the Appellate authority to the assessing authority. The assessing authority again rejected the account books. On appeal, the stay of 50% was granted of the amount assessed. The Tribunal dismissed the appeal rejecting the demand of further stay of more than 50% and recorded that it could not go into question of prima facie case at this stage as it would affect the merits of the case. Hence, a review application is filed.
It is held that while deciding the grant of stay application, the Tribunal is bound to consider ‘prima facie’ case as pleaded and the financial hardship. It can’t refuse to consider them solely because any finding recorded at this stage would affect the final outcome. Being contrary to law, the order of Tribunal is set aside and the revisionist is directed to deposit 10% of the demand assessed.
KERALA HIGH COURT
M.M. ABDUL HAMEED AND SONS
v.
THE ASST. STATE TAX OFFICER, THE STATE TAX OFFICER, THE DEPUTY COMMISSIONER (INT) STATE GST DEPARTMENT
[A.K.JAYASANKARAN NAMBIAR, J]
WP (C).No.26891 OF 2020(J)
Date of Decision: December 3, 2020
Detention of goods- goods in transit—invoice short of date—shipping bill and e-way bill bearing different dates—part B no updated with relevant RR no- Detention held to be justified by Hon’ble High Court
The detention notice was served on the grounds that the invoice that accompanied the goods did not contain any date, while the shipping date was shown as 15.11.2020, the date shown in the e-way bill was 25.11.2020. It was also noticed that Part-B of the e-way bill was not updated with the relevant railway RR number. On writ being filed, the Hon’ble High court has observed that the detention is justified.
ALLAHABAD HIGH COURT
R.J. EXIM AND ANOTHER
v.
THE PRINCIPAL COMMISSIONER CENTRAL GOODS AND SERVICE TAX AND 3 OTHERS
[SURYA PRAKASH KESARWANI & DR. YOGENDRA KUMAR SRIVASTAVA JJ]
Writ Tax No.: 608 of 2020
Date of Decision: November 24, 2020
Provisional attachment of goods—petitioners contends that as only show cause notice under S.70 of the CGST Act, 2017 has been issued, the attachment u/s 83 of CGST Act cannot be made—HELD that the impugned Provisional attachment order issued for the purpose of protecting interest of the revenue— petitioners given an opportunity to file an objection under sub-Rule 5 of Rule 159 of the Rules against the said order—admittedly, no objections filed thereof—Therefore, the impugned orders cannot be said to suffer from any manifest error of law.
The provisional order attaching goods u/s 83 was challenged on the ground that it was against the provisions of law since only a show cause notice u/s 70 was served and the petitioner. Admittedly no objections were filed by petitioner. The Hon’ble court has observed that since the opportunity was given to file objections, the said order cannot be said to be bad in law.