HIGH COURTS
BOMBAY HIGH COURT
BMW India Financial Services P. Ltd.
V.
Union of india
[Ujjal Bhuyan & Abhay Ahuja, JJ]
WP- LD- VC- 85 of 2020
Date of Decision: October 29, 2020
Transitional credit— TRAN 1 filed timely claiming credit—acknowledgment received—credit not reflected in electronic credit ledger of GSTN portal—matter taken to help desk—grievance not addressed by department contending that no technical glitch occurred in GSTN—writ filed—held merely because GSTN did not show any technical glitch, the claim of petitioner, if otherwise valid, cannot be denied when he isn’t at fault—respondents directed to take action for transitioning of credit.
The petitioner had filed GST TRAN-1 well within time and claimed transitional credit for which an acknowledgment was also received from the department. However, the credit was not reflected in electronic credit ledger of GSTN portal as it could not be transitioned despite timely filing in column 11. The petitioner took the matter to the help desk but the grievance was not addressed by the revenue contending that there was no technical glitch on part of department. Thus a writ is filed
It is held that merely because there weren’t any technical glitches in GSTN with respect to petitioner’s TRAN-1 which is filed within time, claim of petitioner, if otherwise eligible, cannot be denied. This is not the objective of GST system. The respondents are directed to verify the amount of VAT claimed and take an action to transition the credit within 4 weeks of date of passing of order.
ORISSA HIGH COURT
Mohanilal @ Mohanlal Sitani
V.
State of Orissa
[Mohammad Rafiq, CJ and Dr. B.R. Sarangi, J]
STREV No. 78 of 2006
Date of Decision: October 13, 2020
Firewood—whether exempted if sold for any other purpose than fuel—held No—firewood is exempted if sold as fuel and not entitled to exemption if sold for any other use—exemption notification to be construed strictly—burden of proving eligibility is on the person claiming it—in case of ambiguity it must be construed strictly in favour of revenue.
A revision is filed against the order passed by the Tribunal whereby it was held that if ‘firewood’ which is an exempted commodity is put to use as a raw material instead of being used as fuel, exemption cannot be claimed on sale of such firewood. Hence, Entry 13 B of the schedule to the exemption notification No 20206-CTA-14/76F dated 23 rd April, 1976 is considered by the Hon’ble High court in the case where firewood is sold for being used a raw material in manufacturing rayon pulp.
It is held that the tribunal was right in arriving at this decision. Once firewood is put to any other use than fuel, it won’t be entitled to exemption. An exemption notification is to be construed strictly. A person claiming exemption provision to relieve him of tax liability must explain clearly that he stands covered by it. In the event of any ambiguity, an exemption clause is to be strictly construed in favour of revenue.
GUJARAT HIGH COURT
Khushi Sarees
V.
State of Gujarat
[Vikram Nath, CJ & J.B. Pardiwala, J]
R/Special Civil Application No . 9807 of 2020
Date of Decision: October 1, 2020
Attachment of immovable property—scope of Sec. 83 of CGST Act—Section 83 has to be invoked when opinion is formed after intense application of mind suggesting it is imperative to attach property—in present case no such material on record to suggest the same—provisional attachment is thus quashed.
The residential property of petitioner is attached u/s 83 of CGST Act while enquiry is pending u/s 70 (1) of the Act, 2017. A writ is filed in this regard. The court has held that S.83 talks about the opinion which is necessary to be formed for protecting interest of revenue. There must be material based on which such opinion is formed. The use of word ‘may’ in the said section indicates not only discretion but an obligation to consider that a necessity has arisen to pass such an order. ‘Belief’ is important and if challenged the materials upon which such belief is formed must be disclosed. The word ‘necessary’ means indispensable, requisite. The opinion should be formed with intense application of mind suggesting that it was imperative to attach the property considering material available on record. Absence of any cogent material would amount – to malice in law. Therefore, the order of provisional attachment of immovable property u/s 83 is quashed.
KERALA HIGH COURT
Cheenu Amma Alloy Pvt Ltd
V.
State Tax Officer
[A.K. Jayasankaran Nambiar, J]
WP(c) No 20092 of 2020
Date of Decision: October 9, 2020
Natural justice—opportunity of hearing—goods vehicle confiscated—notice issued—writ filed impugning the said notices on the grounds that the petitioner was left unheard before passing the order—statement of only driver and manager were taken—held opportunity of hearing is mandated by statute—said notices do not reflect a consideration of objections given by the petitioner in response to notices—matter remanded back for fresh consideration.
The goods vehicle was confiscated and notices were issued by the respondent. The department has alleged that it was only after statements were recorded that orders of confiscation were passed. The said orders are impugned in this writ contending that in this case only an opportunity of hearing to the drivers was given and also to the manager but not to the petitioner. The court has held that the impugned orders do not reflect a consideration of objections given by the petitioner in response to notices issued. When a notice of confiscation is issued, an opportunity of hearing is mandated by the statute before passing such order. Impugned orders are quashed due to absence of application of mind by the authority on the objection of the assessee and it is presumed that the adjudication authority has no reason to give. Matter is remanded back for reconsideration of the matter and passing a fresh order after hearing the petitioner.
TELANGANA HIGH COURT
KM Constructions Ltd.
V.
Principal Commissioner of Central Tax and
4 others
[M.S, Ramachandra Rao and
Hon’ble T. Amarnath Goud, JJ]
WP No 18575 of 2020
Date of Decision: October 20, 2020
Attachment of Bank Account—Provisional Attachment continued even after stipulated period of one year—writ filed—held attachment not to continue beyond one year as per Section 83(2) of the CGST Act —Violative of Article 14, 19 and 300A of Constitution of India—Petitioner permitted to operate its bank accounts.
The petitioner is aggrieved by the continued provisional attachment of property attaching its bank account, even after expiry of mandatory period of one year as prescribed in S 83 of CGST Act, 2017
The Honble court has held that attachment cannot continue beyond period of one year u/s 83(2) of the Act. It amounts to violation of Article 14, 19 and 300A of the Constitution of India and is without jurisdiction. The writ is allowed allowing the petitioner to operate its current bank account.
HIGH COURT OF JUDICATURE AT BOMBAY
Heritage Lifestyles and Developers
V.
Union of India & Others
[Ujjal Bhuyan & Abhay Ahuja, JJ]
W.P. (ST.) No. 3705 of 2020
Date of Decision: November 5, 2020
Transitional credit—Input tax credit—technical glitch faced In filing TRAN-1 under new GST regime– application filed before respondents for redressal of grievance after circular dated April 3, 2018 was issued for assesses unable to file declaration due to technical difficulties—no response given despite repeated reminders—writ filed—respondents could not approve the said application of petitioner as there seemed no attempt made by it in filing of declaration though it was otherwise eligible for ITC—Held , ITC cannot be denied on mere technical grounds if otherwise petitioner is eligible
The petitioner was entitled to carry forward ITC under the new GST regime. A declaration in form TRAN-1 was attempted to be filed within the time limit specified. After the CBIC circular dated 3/4/2018 was issued granting an opportunity to assessees who were unable to file their declaration due to technical difficulties, the petitioner requested the respondent to redress its grievances. After repeated reminders to the respondents no response was given, thereby, leaving no option but to file this writ.
The respondent contends that the application of Petitioner could not be approved as the petitioner was found to have made no attempt in filing it, although, it was otherwise eligible for the credit.
Allowing the writ, the Hon’ble court has held that denying ITC on mere technical grounds is not justified when the petitioner is otherwise eligible for it.
KERALA HIGH COURT
Radhakrishna Textiles
V.
State of Kerala
[A. K. Jayasankaran Nambiar, J]
WP No. 23226 of 2020
Date of Decision: November 3, 2020
Validity of proceedings u/s 74 of GST Act—contention raised that since proceedings u/s 122 of the Act already done and penalty was imposed, a fresh proceeding u/s 74 cannot be done—contention held not acceptable as both the sections are invoked for separate purposes
In the present case, the petitioner contends that since penalty under section 122 of GST Act was imposed already, a fresh proceeding u/s 74 cannot be pursued against him. Dismissing the writ, the court has held that proceedings u/s 122 are for imposing penalty on assessee while, under section 74 proceedings are done is with a view to recover unpaid tax along with interest when non-payment of tax is on account of suppression willful misstatement by the assessee. The contention that only Central Government authorities can proceed u/s 74 is not acceptable.
TELANGANA HIGH COURT
Agarwal Foundries Pvt. Ltd.
Rama Towers and 3 others
V.
Union of India and 9 others
[Ramachandra Rao and T. Amarnath Goud, JJ]
WP No. 28268 of 2019
Date of Decision: November 6, 2020
Search—violence by GST officials—writ filed—material on record (medical report and phone call to police on day of raid) suggestive of physical assault though not conclusive—summon issued u/s 70 of GST Act calling for appearance at midnight not explained by department—plea by respondent that they did not act contrary to law is not acceptable—writ allowed thereby permitting presence of lawyer within visible range during proceedings—respondent no 5 not to participate in proceedings for the reason no affidavit is filed by it to deny assault—plea of respondent to allow proceedings at headquarter New Delhi declined in view of pandemic situation and high cost that would be involved in summoning 50 people in the case.
The petitioners have approached the High court against the action of the officials of GST intelligence department whereby they assaulted physically causing injury to the petitioner during the interrogation process while conducting raids on business units. The court has observed the material on record. The petitioner’s outpatient discharge advice after treatment by emergency physician on the day of interrogation which stated that there was a blunt injury on thigh suggests that there could be a possibility that assault was done .Moreover, calls made by the employee of the petitioner calling for police is on record which was made 1 hour after the petitioner was treated in the hospital and suggests the possibility of physical violence though it cannot be considered conclusive. Summon issued u/s 70 of CGST Act to appear at 00.30 hrs at midnight is not explained as to what the necessity was to summon at such an ungodly hour. Prima facie it is deprivation of the liberty of petitioner to ask him to appear at such a late hour. The plea that the respondents did not act contrary to law and harmlessly without hurting sentiments is unacceptable.
It is held that having regard to the facts and circumstances of the case this case falls under exceptional category and this writ is undoubtedly maintainable for pre arrest application under Article 226 of the constitution of India.
In absence of counter affidavit filed by respondents denying allegations of physical assault, the 5th respondent will not participate in the proceedings.
Also, the prayer for presence of lawyer can be allowed at the time of examination of petitioner and their employees but the lawyer shall be present only in the visible range and not hearing range.
Regarding the plea raised by respondent regarding that they would like to carry on investigation in New Delhi is declined in view of pandemic situation and considering the cost factor involved in travelling and lodging for so many people. Therefore, writ is allowed.
GUJRAT HIGH COURT
Jay Ambey Filament Pvt. Ltd.
V.
Union of India
[Vikram Nath, CJ & JB Pardiwala, J]
R/Special Application No. 11503 of 2020
Date of Decision: October 12, 2020
Provisional Attachment of bank account—scope of S.83 of CGST Act—Power of Commissioner—Absence of relevant material to suggest attachment was necessary—appears to be mere mechanical exercise u/s 83 –opinion ought to be formed on base of relevant material—belief to be formed on facts—intense application of mind necessary on part of authority—impugned order of attachment of bank account is thus quashed
A writ is filed challenging the attachment of five bank account u/s 83 of the Act .The Court has held that a bare perusal of the order impugned indicates that the same is nothing but a result of mechanical exercise of power u/s. 83 of the Act.. Section 83 says that the opinion should be formed on some material. Use of word ‘may’ indicates not only discretion but an obligation to consider that a necessity has arisen to pass such an order. ‘Belief is mental operation of accepting facts as true, so without any fact, no belief can be formed. ‘Necessary’ means indispensable, requisite. Opinion formed must reflect intense application of mind with reference to the material on record that it had become necessary to order provisional attachment. None of the conditions are fulfilled in the present case, writ is thus allowed and the impugned order is set aside.
MADRAS HIGH COURT
Inspired Foods
V.
Commercial Tax Officer
[MS Ramesh, J]
WP No 7014 to 7018 of 2015
Date of Decision: September 14, 2020
Input tax credit—wrongly claimed—petitioner which is a non star hotel brought under the category of star hotel under the VAT Act by the department—tax and penalty imposed—writ filed—held department cannot bring it under the category of star hotels but could have reversed ITC—matter is remanded back for fresh decision—writ allowed
Whether the department was right in n bringing the petitioner, a non star category of hotels, under the purview of S. 7(1) (a) of Tamil Nadu VAT Act on the ground that they claimed ITC. It is clear that the said section applied to star hotels and S 7(1)(b) applies to hotels under non star category. Even if assumed that ITC is wrongly claimed, the department could have reversed the ITC instead of bringing them under the former section. Therefore, matter is remanded for fresh consideration. Writ is thus allowed.
GUJARAT HIGH COURT
Aniket Exports
V.
Union of india
[Vikram Nath, CJ & JB Pardiwala, J]
R/ Special Civil Aplication No. 10226 of 2020
Date of Decision: October 6, 2020
Refund—Export—inadvertent mentioning of drawback under column A instead of column B—refund denied on this account—writ filed—in view of similar case of Amit Cotton industries whereby refund was granted, the petitioner is entitled to refund of IGST alongwith interest @7% from the date of shipping.
The petitioner has prayed for grant of refund of IGST paid on export alongwith interest on such refund. The refund was not paid as the petitioner had inadvertently mentioned the drawback under column A instead of Column B.
Following the decision given in the case of M/s Amit Cotton Industries V/s Principal Commissioner of Customs, the writ is allowed directing for refund of IGST paid on goods exported alongwith 7% interest from the date of shipping within 4 weeks.
MADRAS HIGH COURT
Nestle India Ltd.
V.
The Assistant Commissioner
[A.P. Sahni , CJ & Senthil Kumar Ramamoorthy , J]
W.P No 34716 of 2005
Date of Decision: November 3, 2020
Interest—Belated filing of returns—Whether interest is payable on belated filing of returns—impugned order levying interest u/s 24(3) of TN General Sales Tax Act passed—writ filed—undisputedly returns were filed after the requisite 12th day of succeeding month but before the 20th day—section 24(3-A) speaks of such cases where returns are filed late but within ten days from expiry of prescribed period—In view of the situation , S. 24(3-A) is applicable instead of S. 24(3)—therefore, interest @2% is leviable—impugned order cannot be vitiated for mere wrong mentioning of provision when it is otherwise provided in the statue— writ disposed off
The dealer has admittedly filed returns for the relevant period after the 12th of the succeeding month but on or before the 20th. Interest has been imposed for the belated payment of tax u/s 24(3) of Tamil Nadu General Sales Tax Act. Hence a writ is filed.
The petitioner contends that Section 24(3-A) is attracted instead of the section 24(3) of the Act. As per section 24(3-A) , in cases where a dealer submits the return within 10 days after the expiry of the prescribed period, he shall also pay in addition to the amount of tax due , an interest @2% of the tax payable for every month.
Held – Rule 18(2) prescribes the time limit for filing returns. Perusal of section 24(3-A) makes it abundantly clear that in this case the said section applies rather than 24(3). The challenge to the impugned order is not sustainable as the order cannot be vitiated merely because wrong provision of law is cited therein provided the relevant statute contains an appropriate provision for such purpose. Therefore, payment of interest is to be done in terms of section 24(3-A) of TNGST Act.
MADHYA PRADESH HIGH COURT
SRF Ltd.
V.
State of Madhya Pradesh and Others
[S.C. Sharma & Shailendra Shukla , JJ]
WP No 9628 of 2020
Date of Decision: October 16, 2020
Entry Tax—exemption of—exemption granted in view of notifications issued in 2010—certificate issued in 2017 with retrospective effect from 2004 for a period of nine years—however, exemption granted for a period of five years only—writ filed—plea of limitation barring reopening of assessment by department not taken into account since certificate itself issued in 2017 providing a reasonable cause for delay—Commissioner could have used its power to reopen assessment—department obliged to abide by the certificate—inaction of department is bad in law—technicalities is no ground when certificate is otherwise relevant—respondent ordered to grant benefit to the petitioner as per the certificate and grant refund within 90 days
The petitioner company, established in 2004, was granted a certificate of exemption of entry tax by the government. The notifications which granted this benefit were issued in 2010 and the certificate was issued in the year 2017 with retrospective effect. This entitled the company for exemption from payment of entry tax with retrospective effect i.e. from 2004 to 2013 (9 years). But the exemption has not been granted for entire period but only for 5 years. Hence a writ is filed.
The department contends that the limitation for reopening of assessment is expired. The court has rejected this argument on the grounds that the said certificate was itself granted in 2017 thereby providing a reasonable cause to the petitioner for delay. Therefore, the department is under an obligation to abide by the exemption certificates. Moreover, the commissioner has the power of suo motto revision which could be exercised for reopening of cases within the limitation period.
The inaction of department is bad in law.
It’s nobody’s case that the exemption certificate is withdrawn or erroneously issued. Hence the department cannot take advantage of technicalities especially when certificate was issued in 2017 with retrospective effect.
The assessment orders for the remaining years are set aside. The respondents are required to confer all the benefits in terms of the certificate issued and refund the amount recovered within 90 days.
GUJARAT HIGH COURT
Anant Jignesh Shah, Proprietor of
M/s. Nakoda and Company
V.
The Union of India,
[Vikram Nath, CJ and J.B. Pardiwala, J]
R/SPECIAL CIVIL APPLICATION NO. 12712 of 2020
Date of Decision: November 6, 2020
Confiscation of goods in transit—show cause notice issued on the assumption that the same e-way bill must have been used twice for transporting goods twice—held, show cause notice u/s 130 cannot be issued on mere suspicion
The goods were in transit from Madhya Pradesh to Gujrat. The goods were detained and a show cause notice was issued suspecting that the trader has generated E-way bill but has transported the goods twice on the very same bill.
It is held by the Hon’ble court that the show cause notice appears to have been issued on an assumption that the driver of the vehicle might have indulged in the past in contravention of the provisions of the Act and the Rules made thereunder. The show cause notice under Section 130 of the Act cannot be issued on a mere suspicion. There has to be some prima facie material on the basis of which the authority may arrive at the satisfaction that the goods are liable to be confiscated under Section 130 of the Act.
TELANGANA HIGH COURT
Sree Rama Steels
V.
The Deputy State Tax Officer and 3 Others
[M.S. Ramachandra Rao &
T. Amarnath Goud, JJ]
Writ Petition No. 4873 of 2020
Date of Decision: November 6, 2020
Detention of goods—wrong destination—goods purchased in transit under proper documents further sold to a buyer by petitioner—goods to be unloaded at job worker’s site directly—New invoice and e-way bill raised accordingly by petitioner—while driver waited for documents on way, goods detained on account of ‘wrong destination’ mentioned on documents—held—noticing the vehicle at wrong destination without anything more does not amount to contravention of the provisions of law—prima facie compliance done by generating the documents—delivery challan containing name of new site corroborates the petitioner’s explanation—mere omission to mention the said fact in e way bill cannot amount to evasion of tax—writ allowed
The goods were in transit from Telangana to the petitioner in Prodattar under the cover of requisite documents. While they were on way, the petitioner received an order of the same goods from a buyer in Prodattar who requested for sending the goods directly at the job site. In order to save time and cost, the petitioner raised an invoice and e-way bill on its buyer and informed the driver telephonically to take the goods there. It was when the driver was waiting at a little distance from the Job work site of the buyer of petitioner for the documents to arrive from petitioner, that the respondent detained the goods on the ground of ‘wrong destination is noticed’. A show cause notice was issued and the petitioner paid tax and penalty under protest. A writ is thus filed.
It is held that the contention of the department that a writ is not maintainable is rejected on the ground that since no order has been passed and communicated by the respondent, the petitioner cannot invoke S. 107 of the Act.
Noticing the conveyance at a wrong destination’ without anything more cannot be said to be a contravention of the CGST Act/Telangana GST Act,2017 and it is not an taxable event, for there could be several reasons for the same including the driver losing his way or stopping for repair or to answer a call of nature.
Once the vehicle driver had the tax invoice and the e-way bill, there is prima facie compliance with the provisions of the CGST Act and Telanaga GST Act and the rules made thereunder and it did not warrant initiating of proceedings under S.129 of the Telangana GST Act,2017.
Though, in the e-Way Bill, the place of delivery of the goods at Job work site of the purchaser from the petitioner was not mentioned. But, in the delivery challan dt.27.1.2020, the same was mentioned which, corroborates the petitioner’s defence. It is not as if when goods are in transit there is a prohibition of their sale by the purchaser to a third party.
It may be that when – e-Way Bill dt.27.1.2020 was prepared by the petitioner there was an option to disclose the place of unloading such as the job worker’s address which was not done in the instant case, as permitted by Rule 46(o) of the S.G.S.T. Rules. A mere omission to mention the said fact in the e-Way Bill, cannot be a ground for the 1st respondent to presume that there is an intention to violate the law or to evade tax.
The Writ Petition is allowed and the action of 1st respondent in collecting the sum of ₹ 4,30,778/- from petitioner on 30.01.2020 is declared as arbitrary and violative of Articles 14 and 265 of the Constitution of India,
HIMACHAL PRADESH HIGH COURT
Macleods Pharmaceutical Ltd.
V.
Prakash Kumar and Another
[Ms. Jyotsna Rewal Dua, J]
COPC No. 2 of 2020
Date of Decision: November 10, 2020
Contempt of court—Earlier writ filed and direction sought for the respondents to consider amendment of TRAN 1 of petitioner—amendment not accepted on the ground that as per the logs, taxpayer had filed ‘0’ in disputed field and no logs of error evidencing any technical glitch faced were found—therefore, case cannot be said to have not been considered—no contempt is made out.
Earlier a writ was filed pursuant to which a direction to the respondents was given to consider the case of the petitioner-Company for amendment of TRAN-1 form and pass appropriate orders. Alleging that the case of the petitioner for amendment of TRAN-1 form was not considered and no orders were passed in the case of petitioner, this contempt petition was instituted.
The department passed an order to the effect that the case of the petitioner for amendment of TRAN-1 form could not be accepted due to the fact that as per the logs, taxpayer had filed 0 (zero) in the disputed field and no logs of error evidencing any technical glitch faced by taxpayer were found. Therefore, it is held that The decision has been taken and it cannot be said the respondents have flouted the judgment passed by this Court. Consequently, no contempt is made out and the same is dismissed.
KERALA HIGH COURT
Veer Pratab Singh, Chetan Maganlal Sabhaya
V.
State Of Keralaand others
[.K. Jayasankaran Nambiar, J]
WP (C). No. 22016 OF 2020 (B)
Date of Decision: November 6, 2020
Detention of goods—scope of section 130 of GST Act—Goods detained on grounds that goods were loaded from Kerala to reach Gujarat and not Coimbatore as mentioned in documents—IGST liability stood paid off by petitioner—no evasion of tax made out—in such an eventuality, though documents were found defective section 130 could not be invoked—therefore, detention orders quashed and respondents directed to proceed under S 129 of the Act
A consignment of scrap that was being transported from Coimbatore to Gujarat from the 1st petitioner, as consigner, to the 2nd petitioner, as consignee, was detained by the respondents at Kodumuda in Palakkad. The respondents, however, obtained evidence that suggested that the loading of the consignment was effected in Palakkad, within the State of Kerala
The court has held that It has to be noticed that the 1st petitioner had admitted his liability to IGST by declaring the same in the invoice, and if the goods, even assuming that they were loaded from Palakkad, were destined to Gujarat, it is the IGST that had to be paid by the 1st petitioner/consigner of the goods. To that extent, therefore, it cannot be said that there was any intention to evade payment of tax because the tax liability, in either event, would be the same proceedings initiated against the petitioners under Section 130 of the GST Act, cannot be legally sustained. The impugned order under Section 130 of the GST Act is therefore quashed, and the respondents are directed to pass orders under Section 129(3) of the GST Act, after hearing the petitioners.
KERALA HIGH COURT
Gokul P.G.
V.
The State Of Kerala
[A.K. Jayasankaran Nambiar, J]
WP (C). Nos. 21907 & 23329 of 2020
Date of Decision: November 6, 2020
Detention of vehicle—documents invalid to the extent that goods showing interstate movement not found on the normal route—section 130 invoked—held, since IGST liability was complied with by petitioner as per documents, intention to evade tax cannot be established—section 130 cannot be invoked in absence of mensrea—therefore, order quashed and respondents directed to proceed u/s 129 of the Act
The consignment, on interception, was found to be covered by an invoice as well as an e-way bill that showed the payment of tax [IGST] for the inter-state movement covering the journey from Kanyakumari to Kalyan. The detention, however, was for the reason that the vehicle was apprehended at a place that was not on the normal route between Kanyakumari and Maharashtra.
The material collected by the respondents justifies the detention of the goods and the vehicle as there was evidence to suggest that the transportation did not originate from Tamil Nadu, as was declared in the documents. The respondents have not been able to establish an intention to evade tax which is a necessary pre- condition for invoking the provisions of Section 130 of the GST Act. It has to be noticed that the invoice raised by the petitioners admitted their liability to IGST, and while there is a presumption in favour of the petitioners with regard to tax compliance, there is no material produced by the respondents to rebut the said presumption. Intention to evade payment of tax on the part of the petitioners has not been made out. The necessary ingredient of mens rea not has been established in respect of the detention. Therefore, section 130 of the Act could not be invoked. However, the respondents can proceed u/s 120 of the Act.
KERALA HIGH COURT
Loafers Corner Café
V.
Union of India
[A.K. Jayasankaran Nambiar, J]
WP (C) No. 5127 of 2020 (M)
Date of Decision: October, 20, 2020
Registration—Cancellation of—benefit of compounding scheme— Application for cancelling earlier registration and grant of new registration made- uploading of return not done for the period between application and grant of registration as system could not recognize new reg.—writ filed seeking direction to respondents to enable petitioner to upload returns—Held, benefit of compounding scheme to be given for the interim period in question
The petitioner has applied for cancellation of its earlier registration and applied for a new registration on June 2018 so that it could opt for the compounded scheme for payment of tax. The new registration was allotted but in the meanwhile during the period between date of application and grant of the same, the return filed could not be uploaded in the system due to the fact that the system recognized only the earlier registration. Hence the petitioner seeks a direction for the respondents to make changes in the portal to enable petitioner to files returns for the said period. It is held that the mere fact that respondents took time in processing the application and approving cancellation as also granting new registration, cannot be a reason to treat the interim period as one where the benefit of compounding scheme cannot be given. Hence writ is allowed.
GUJARAT HIGH COURT
Rajesh Kiran D
V.
Joint Commissioner of State Tax Division-8
[Vikram Nath, CJ and J.B. Pardiwala, JJ]
R/Special Civil Application No. 10336 of 2020
Date of Decision: October 5, 2020
Confiscation of goods—notice u/s 130 of GST Act issued—writ filed for quashing of the said order—Held no relief can be granted as confiscation proceedings are still pending—petitioner is to make a good case and participate in the proceedings
The goods were confiscated alongwith the vehicle due to discrepancy in the documents, absence of GSTIN number on physical verification. A show cause notice was issued by the department to explain why goods should not be confiscated under Section 130 of the Act. The petitioner has approached the court for quashing of the order passed U/s 129 and Notice U/sec 130 of the Act.
The Court has held as the confiscation proceedings are pending, it is not inclined to grant any relief as prayed for. The applicant is expected to participate in the proceedings and make good his case. However, the goods may be probationally released through an application before the concerned authority. The writ is disposed off.
MADRAS HIGH COURT
PVR Ltd.
(Formerly Known as SPI Cinemas Pvt. Ltd.)
V.
Commercial Tax Officer
[Dr. Vineet Kothari and M.S. Ramesh, JJ]
Writ Appeal No.685, 695, 696 and 697 of 2020
Date of Decision: October 15, 2020
Entertainment tax—online booking charges—whether taxable under the Tamil Nadu Entertainment Tax Act, Act of 1939—held such charges are taxable only if it is a condition for entry—online charges are not mandatory but an additional facility provided by cinema owner—unless it is charged uniformly from all customers no tax is leviable— section 3(7)(c) of the Act
The question that arose is whether “only booking charges” charged by the Cinema Owner besides “the cost of ticket” for entry into the hall is a part of taxable receipt as per the Tamil Nadu Entertainment Tax Act, 1939.
Sec.3 (7)(c) of the Act says that payment should be a necessary condition to be complied with for gaining entry into the place for entertainment. The payment for any other purpose connected with such entertainment will be taxable only if it is required as a condition for entry. The court considered that online booking charges is not a mandatory payment for gaining entry into the hall. It is an additional payment for other facility provided by Cinema Owner. The said Act could not have provided for levy of tax on the service of Internet provided by the Cinema Owner. Agreeing with the contention of the assessee the court said that unless such internet charges are uniformly charged from all customers for having entry into the hall, such extra service charges taken by cinema owner could not be made subject matter of entertainment tax. The test is attending the entertainment or continuing to attend the entertainment. The words “any payment for any purpose whatsoever connected with an entertainment,” in addition to the payment for any admission to entertainment in Clause-(c) has to be read in conjunction with the words “which a person is required to make as a condition of attending or continuing to attend the entertainment.”
The extra charges for online payment is not sine qua non for having entry into the hall and therefore, falls outside the scope of the term “payment for admission” given in Sec.3(7)(c) of the Act. Therefore, the orders by the AA are quashed.
KERALA HIGH COURT
Varahamurti Flexirub Industries Pvt Ltd
V.
The State of Kerala
[A.K. Jayasankaran Nambiar, J]
WP (c) No. 21626 of 2020
Date of Decision: October 14, 2020
Ingenuine documents—detention of goods—mismatch of e-way bill in terms of difference of value of goods shown in it and hard copy thereof—contention raised that mismatch occurred as revised e-way bill could not be uploaded in time—Held , explanation tendered ought to be considered by department before passing order u/s 125 of GST Act—opportunity of hearing to be granted
The goods were detained on the ground that the value of goods shown in e-way bill was different from the one shown in the hard copy of e-way bill. The petitioner contends that the revised e-way bill could not be uploaded into the system before commencement of transportation leading to discrepancy.