HIGH COURTS GUJARAT HIGH COURT FORMATIVE TEX FAB
STATE OF GUJARAT & 3 OTHER [J.B.PARDIWALA & ILESH J. VORA, JJ]
R/SPECIAL CIVIL APPLICATION NO.
14059 of 2020
Date of Decision: January 18, 2021
Provisional attachment u/s 83 of GST — Cash credit account attached—on instructions for attachment of cash credit account, the bank attached all other accounts of the petitioner on its own—writ filed—Held, said order attaching cash credit account is not sustainable
Where the cash credit account was ordered to be attached u/s 83 of the Act, the concerned bank attached all other accounts on its own. It is pleaded that all the accounts could not be attached. Moreover, attaching cash credit account is not within the scope of S 83 of GST Act,2017. The Hon’ble court has held that the impugned order attaching cash credit account u/s 83 is quashed.
DELHI HIGH COURT
RCI INDUSTRIES AND TECHNOLOGIES LTD
V/S COMMISSIONER DGST DELHI & ORS.
[RAJIV SAHAI ENDLAW & SANJEEV NARULA, JJ]
Date of Decision: January 7, 2021
Search under SGST Act—validity of—absence of signatures of independent witnesses will not render the search invalid.
Reason to believe—while exercising writ the court cannot go into the sufficiency of grounds leading to reason to believe on part of officer to conduct search.
Statement given by the petitioner was not retracted soon after which indicates that indicating that it’s a way to wriggle out of the liability admitted during search.
Search conducted u/s 67 of DGST Act has been challenged on the grounds that no signatures of independent witnesses have been attained. That the premises are already searched by central GST Authorities and there can be no parallel enquiries by two independent authorities on the same issue. That the statement was taken coercively during search .That the officer has no reason to conduct search as required by law.
The statement if taken with coercion ought to have been retracted soon after but it was never done indicating that the petitioner has challenged the search action as an attempt to wriggle out of the commitment of paying tax and penalty made in the statement during the search action.
The authorities are dealing with different years hence there is no overlapping of enquiries by the two authorities.
There is no merit in the contention that absence of signatures would render the search illegal. No Panchnama was drawn. There is no such provision supporting this contention that the signatures of witnesses are required.
Regarding the ‘reason to believe’ to conduct search, the Hon’ble court cannot go into sufficiency of grounds while exercising writ. The reasons to believe shown to the Court demonstrate that the Appropriate authority had the reasons, as per mandate of Section 67(2) of the DGST Act along with relevant Rules, for formation of belief to carry out the search. Therefore, writ is disposed of.
GUJARAT HIGH COURT NIPUN A. BHAGAT, PROPRIETOR OF
STEEL KRAFT INDUSTRIES
STATE OF GUJARAT
[J.B. PARDIWALA & ILESH J. VORA, JJ]
R/SPECIAL CIVIL APPLICATION NO. 14931 OF 2020
Date of Decision: January 4, 2021
Recovery of dues—Scope of S. 86A of CGST Act—ITC available in credit ledger of the director of public company blocked to recover dues—S. 86A held wrongly invoked—director’s credit ledger cannot be blocked for recovery of dues in case of public company
The respondent had blocked the ITC available in the credit ledger of the director of the private company to recover dues. A writ is filed in this regard. It is contended that under section 18 of the Central sales tax Act, 1956, the recovery can be made from directors. It is held that S 86 A could not be invoked as S.18 deals with private company. In the present case, the company in question is a public company. Therefore, the respondent is directed to unblock it.
RAJASTHAN HIGH COURT MEGA JEWELS PVT LTD
V/S ADDITIONAL COMMISSIONER
[INDRAJIT MAHANTY & SATISH KUMAR SHARMA, JJ]
CWP No. 6575/2020
Date of Decision: January 27,2021
Refund—Input tax credit—Scope of circular No 14/14/2017 dt 6/11/2017—Refund of ITC u/s 54 (3) of CGST Act claimed—denied in view of circular dated 6/11/2017—writ filed—Held: the said circular is prospective and will not apply on transactions entered prior thereto— transaction in instant case pertains to period between July to October 2017, therefore there is no lawful impediment in justifying denial of refund of ITC—interest to be paid alongwith— writ allowed
The petitioner has filed a writ seeking refund of ITC u/s 54 (3) of the CGST Act 2017 which stood denied in view of circular dated 6/11/2017 . The Hon’ble court has allowed the writ directing the respondents to grant refund alongwith interest since the said circular is prospective and does not apply to transactions entered prior thereto
DELHI HIGH COURT PERNOD RICARD PVT. LTD.
AUTHORITY FOR ADVANCE RULING GST
[RAJIV SAHAI ENDLAW & SANJEEV NARUL, JJ]
Date of Decision: February 16, 2021
Advance Ruling Authority—Direction given by Hon’ble court to adjudicate the application filed within 4 weeks after quorum is complete—request to Lt. Governor to process the nomination received on priority basis
The petitioner had filed an application before the Advanced Ruling authority in order to start its new business. Even after 2 ½ years no orders are passed as the quorum of 2 members is not complete. The Hon’ble court has directed that the application be decided as soon as the quorum is complete and request to the Hon’ble Lieutenant Governor to take up the matter on priority basis and process the nomination received from the CBIC at the earliest.
GAUHATI HIGH COURT BARAK VALLEY CEMENTS LTD
THE UNION OF INDIA AND 5 ORS
[ACHINTYA MALLA BUJOR BARUA, J] WP(C) 4334/2020
Date of Decision: February 15, 2021
EWB portal—blocking of—failure to file returns for two financial years—respondent to block the EWB portal of petitioner under Rule 138E(b) of the CGST Rules, 2017 in consequence thereto—writ filed contending that the petitioner defaulted in filing returns as refund not granted to it in terms of new industrial policy—Hon’ble court directed the petitioner to make representation before the Principal commissioner justifying reasons for refund within 3 days failing which interim order barring respondents from blocking of EWB Portal shall not hold good.
The petitioner’s EWB portal was to be blocked on account of failure to file GSTR returns for two financial years. The petitioner has contended that since it was entitled to a huge amount of refund under the new industrial policy which was not refunded by the department it had not filed returns. The Hon’ble court has directed the petitioner to make a representation before the respondent justifying the reason for refund. Till the order is passed by the Principal Commissioner, the earlier interim order requiring the respondents not to block the EWB Portal of the petitioner shall continue. If the representation is not made within the time given, the interim order shall not hold good.
ALLAHABAD HIGH COURT ANANDESHWAR TRADERS
V/S STATE OF UP
[SAUMITRA DAYAL SINGH, J]
W.P NO. 503 OF 2020
Date of Decision: January 18, 2021
Appeal—Additional evidence—whether can be added by respondent at time of appeal— penalty imposed for failure to cancel E-Way bill when movement did not take place— appeal filed—respondent added further ground that the same E-Way bill was used twice for movement of goods—appeal rejected—High Court observed in favour of petitioner that Rule 112 of CGST Rules does not permit additional evidence by respondent at time of appeal—amount deposited by petitioner to be returned.
The goods were seized and penalty was imposed on the ground that the E way bill was not cancelled within 24 hours of generation when the movement had not started after its issuance. Rule 138 does not prescribe that the E-way bill ought to be cancelled when the movement does not take place. On appeal by petitioner it was rejected on further added grounds by respondent that the e way bill in question had been used twice. It is held Rule 112 of CGST Rules does not permit respondent to place an additional evidence at the time of appeal. Therefore, the petitioner is to be returned the amount deposited by it.
HIGH COURT OF GUJRAT SKF FINEST ADVISORY PVT. LTD
V/S UNION OF INDIA
[JB PARDIWALA and ILESH J VORA, JJ] SCA 457 of 2021
Date of Decision: February 19, 2021
Provisional Attachment—bank account attached creating difficulty in functioning of business—Hon’ble High court has enquired if any tangible property can be furnished for uplifting bank attachment—applicant ready to maintain balance of ` 22 Lakhs as existed on day of attachment provided it be permitted to operate the account—matter decided in favour of assessee
After the search u/s 67 was conducted, the bank account of the applicant was provisionally attached which caused impediment in conducting its business. Enquiry still being under process, the Hon’ble High court asked for any other tangible security equivalent to the demand raised. The applicant is ready to maintain a balance of ` 22 Lakhs which was the amount available in the account when attachment was done provided it may operate its account. The applicant is ready for the undertaking, therefore the matter is decided in favour of the assessee.
HIGH COURT OF RAJASTHAN JODHPUR VIDYUT VITRAM NIGAM LTD
V/S UNION OF INDIA
[INDRAJIT MAHANTY, CJ & DINESH MEHTA, J]
CWP No 9397/2018
Date of Decision: February 5, 2021
Exemption—can exemption granted by government be taken away by way of circular—Held no—services exempted by way of notification by central government cannot be taxed by the revenue by way of issuing circular under the cloak of clarification.
The services of distribution and supply of electricity in districts of Rajasthan had been declared in negative list by the Central Government vide notification dated 28/6/2017. However, the revenue carved out an exception vide circular dated 1/3/2018 and excluded some of the services provided by the DISCOMS although the said services were themselves exempted. The Hon’ble High court has held that the respondent s have levied tax on some of the services by carving them out that too by way of circular under the cloak of clarification. The impugned paragraph of the circular is thus quashed.
HIGH COURT OF DELHI LUPITA SALUJA
DGGI AND ANR [SURESH KUMAR KAIT, J] APPLICATION NO 319/2021
Date of Decision: February 11, 2021
Anticipatory bail—enquiry under CGST Act—bogus invoices—fake suppliers and wrongly availed ITC alleged—anticipatory bail is granted on the observation that the idea of fake suppliers is misconceived by department as per documents on record— GSTR returns duly filed—applicant never called upon for investigation for one year, only after she challenged the investigation she is called—therefore, no custodial interrogation is required—anticipatory bail is granted.
Anticipatory bail is sought by the directors of the company for the enquiry initiated under the CGST Act. Allegedly the applicant has availed bogus ITC by creating fake firms and that the applicant has siphoned the funds from company accounts. It is contended by the revenue that the applicant is not merely a housewife, but an active involved in financial affairs and had been absconding after her husband was arrested.
Records show that it is misconceived that suppliers are nonexistent. The PAN cards and bank accounts are valid and the registration has been granted by the respondent itself. GSTR returns are duly filed. The applicant has been called for the first time after she challenged the whole investigation. Therefore, No custodial interrogation is required. Anticipatory bail is granted.
HIGH COURT OF JHARKHAND TURRET INDUSTRIAL SECURITY PVT LTD
UNION OF INDIA & ORS [APARESH KUMAR SINGH & ANUBHA
RAWAT CHOUDHARY, JJ]
W.P. (T) No 2661 of 2020 Date of Decision: February 4, 2021
Registration—cancellation of—show cause notice issued—subsequent cancellation on account of failure to reply to show cause notice—High Court has observed that since show cause notice was short of date and time, petitioner couldn’t be expected to reply to it— cancellation resulting from such incomplete show cause notice cannot be sustained being violative of principles of law
The GST Registration was cancelled on account of non filing of returns for a period of six months. A notice was issued by the revenue in this regard to which no reply
was filed by the petitioner. It is held that the impugned notice lacks date and time for replying due to which it stands quashed. Cancellation of registration resulting from such an incomplete show cause notice also cannot be sustained being violative of principles of natural justice.
BOMBAY HIGH COURT GOODS AND SERVICES TAX
V/S UNION OF INDIA
[UJJAL BHUYAN & MILIND N. JADHAV, JJ] WRIT PETITION (L) NO.5172 OF 20021
Date of Decision: February 26, 2021
Returns—Extention for filing — time limit was already extended once—no extinguishment of right by not extending it further—Annual returns for the period in question had been made optional if turnover is upto 2 crores and 5 crores with respect to the financial years mentioned in the notification by Central Government—Petition dismissed
The writ is filed by GST Practitioners’ Association seeking a direction to the respondents to extent the periodicity of filing of annual returns in Maharashtra due to the prevailing COVID situation. They have also sought extension of limitation period for filing of annual returns for the year 2019-20 under Section 44 of CGST Act r/w Rule-80 of CGST Rules 2017 upto 30.6.2021. The court has held that the time limit had been extended from 31.12.2020 to 28.2.2021. Perusal of Section 42 of the CGST Act reflects that non extension of the time limit beyond the sought after date would not leave to any extinguishment of right. The Central Govt. notified that annual turnover upto Rs.2 Crores for financial Years 2017-18, 2018-19 and 2019-2020 may be filed as an option; and for business with annual turnover upto Rs.5 crores for the above mentioned latter to financial years has been waived off.
It is the professional body of GST practitioners and not an individual taxable person finding it difficult to adher to the time line of 28.2.2021. Petitioner is dismissed.
HIGH COURT OF BOMBAY JSK MARKETING LTD & ANR.
UNION OF INDIA & ORS
[UJJAL BHUYAN & MILIND N JHADAV,JJ] WP No 5000 of 2020
Date of Decision: February 16, 2021
Arrest—apprehension of—summons issued allegedly on account of circular trading—writ filed by petitioner apprehending arrest seeking protection against coercive action—Summons observed to be indicative of only demanding oral evidence or documents by the petitioner— No arrest signified—Petitioner to appear in response to summons and respondent to refrain from coercive action if the former cooperates in investigation.
Multiple summons were issued to the petitioner allegedly involved in circular trading to which the petitioner did not respond apprehending its arrest. A writ is filed for protection against coercive action. The Hon’ble Court has held that the summons have been issued to petitioner calling him upon to tender oral evidence and produce documents. No threat of arrest is indicated therein. There is no reason to apprehend arrest on presenting himself before the investigating officer in response to summons issued. The respondents are directed not to take any coercive action if the petitioner co-operates investigation.
GUJARAT HIGH COURT RAMESWAR UDYOG PVT. LTD.
V/S UNION OF INDIA
[J.B.PARDIWALA & ILESH J. VORA, JJ]
R/SPECIAL CIVIL APPLICATION NO. 17688
Date of Decision: March 18, 2021
Refund on exports—amendment in GST portal—exports of goods—errors in outwards supplies in GSTR 1—amendment of 28 invoices permitted accordingly to assist exporters—albeit refund not granted on 14 invoices on account of mismatch in GST portal and ICEGATE customs portal due to technical error—Respondent is directed to sanction the refund.
The exporter applicant had exported goods under payment of IGST. However there was a mismatch between GST portal data and data on the ICEGATE customs portal and hence, the refund of the IGST was not granted.
Steps were taken for permitting amendment of invoices. 28 invoices were amended but 14 were still pending, the amendment of which was not allowed on account of technical error.
The respondent is directed by the Hon’ble court to sanction the refund, in accordance with law, as claimed by the writ applicants within a period of 12 weeks from the date of receipt of this order. In case of any further difficulty, it shall be open for the writ applicants to revive this writ application.
DELHI HIGH COURT MRIDUL TOBIE INC.
ADDITIONAL DIRECTOR GENERAL,
DIRECTORATE GENERAL OF GOODS
AND SERVICE TAX INTELLIGENCE & ORS.
[RAJIV SHAKDHER & TALWANT SINGH, JJ]
Date of Decision: March 17, 2021
Stay of investigation—search by Commissionerate and Intelligence simultaneously—The Hon’ble court has held that in view of the circular dated 5/10/18, if the search is commenced by the Commissionerate, the other intelligence units should have held their hand as it is both practical and sensible— while respondents file their reply to the captioned application, no coercive measures to be taken against the petitioner—search officers to ensure no privacy is invaded.
As per the earlier orders passed by this Hon’ble Court, the petitioner was relegated to Allahabad High court since few issues were overlapping with issues raised in writ petition in Allahabad High court. The respondent was given some time to file a response in this regard. Within two days of the passing of the order, authorization was given for a search being carried out by the DGGI, Delhi Zonal Unit 1. The record shows that search has been carried out not only by the Commissionerate but also by various Intelligence Units. Thus the applicant has approached for a stay in investigation.
The Hon’ble court has held that that since investigation was commenced, in the first instance, by the Commissionerate, the other Intelligence units should have held their hands in view of the circular dated 05.10.2018. Therefore, no coercive measures will be taken against the petitioner. If, in the interregnum, investigation is necessitated, in line with the circular dated 05.10.2018, it shall be carried out only by the Commissionerate. The search officers will ensure that there is no invasion of privacy.
JAMMU & KASHMIR HIGH COURT NAVNEET R. JHANWAR
STATE TAX OFFICER AND OTHERS
[SANJEEV KUMAR & SANJAY DHAR, JJ] WP(C) No. 443/2021
Date of Decision: March 17, 2021
Refund—improper show cause notice— principles of natural justice—show cause notice served to explain delay in claiming refund of ITC—refund rejected on merits without hearing the appellant in this regard—Held by Hon’ble Court that writ is maintainable since order passed is fundamentally flawed being violative of principles of natural justice—fresh show cause notice to be served—petition allowed.
In response to the show cause notice served, the petitioner had explained that the delay in claiming refund was on account of the pandemic. Subsequently, the respondent rejected the refund on grounds of merit without hearing the petitioner on that. The Hon’ble Court has held that writ jurisdiction can be exercised despite there being efficacious remedy of appeal since the impugned order is passed in violation of natural justice making it fundamentally flawed. Therefore, the matter is remanded back for fresh adjudication after service of proper show cause notice and opportunity of hearing to the petitioner.
PUNJAB AND HARYANA HIGH COURT SACHDEVA COLLEGES LTD.
UNION OF INDIA & ORS [RITU BAHRI & ARCHANA PURI, JJ]
CWP NO.5605 OF 2021
Date of Decision: March 10, 2021
Natural Justice—Rejection of Application u/s 97 of CGST Act—application rejected at stage of omission contending counsel of petitioner being absent—Entry Dispatch Register being proof of presence of counsel on the day of hearing – order passed in favour of petitioner by Hon’ble High court—matter remanded for fresh hearing.
Application for AAR is filed contending that the application filed U/s 97 of the CGST Act was rejected at the stage of admission itself without giving an opportunity of hearing. On the other hand the department contends that the Counsel for the petitioner was absent. It is observed by the Hon’ble Court that the lawyer was present as per the Entry Dispatch Register. Hence, no application could be rejected without hearing the appellant in view of the provision of Sec.98(2) of the above act which is mandatory. Therefore, the impugned order is set aside and remanded back to the authorities for passing a speaking order after hearing.
KERALA HIGH COURT USMAN M.
THE COMMISSIONER OF STATE GST TAX TOWERS & ORS.
[A.M. BADAR, J] WP(C) NO. 8319 of 2021
Date of Decision: March 30, 2021
Bank Guarantee — Invoking of — goods released on furnishing bank guarantee— guarantee invoked before filing of appeal — Held: Respondent cannot invoke the bank guarantee if petitioner files appeal challenging the order within the limitation period.
The goods were released on foundation of bank guarantee. The final order was passed by the respondent directing payment of IGST tax. However, before an appeal could be filed against the said order the respondent invoked the bank guarantee which was furnished. The Hon’ble Court has held that the respondent should not invoke bank guarantee furnished if the petitioner files statutory appeal challenging the order passed by them within the prescribed period of limitation.
HIGH COURT OF GUJARAT JIGAR CARS PVT. LTD.
V/S UNION OF INDIA
[J.B. PARDIWALA & ILESH J. VORA, JJ]
CIVIL APPLICATION NO.15631 of 2019
Date of Decision: March 23, 2021
Transitional credit—denial of on account of typographical error in GSTR-2 returns— respondents directed to open online portal for rectification of error or accept manual returns for the period in question.
A writ is filed by the petitioner seeking direction to the respondents to allow them to file returns in form GST TRAN-2 and claim transitional credit for the period concerned. The Hon’ble Court has observed that the transitional tax credit was not allowed on account of an inadvertent and bona fide typographically error made in form GST TRAN-2. In view of the ratio given in the case of Jakap Metind Pvt. Ltd. it is held that the respondents shall open an online portal to file rectified firm of GST TRAN-2 electronically for the period concerned as well as for the subsequent months, or accept manual filed returns for the months with corrections.
HIGH COURT OF MADRAS VECTRA COMPUTER SOLUTIONS
THE COMMISSIONER OF COMMERCIAL TAXES
[G.R. SWAMINATHAN, J]
W.P. No. 9531 of 2020
Date of Decision: March 25, 2021
Natural Justice—Levy Of Tax And Penalty— SCN Served—Tax And Penalty Imposed— Writ Filed Alleging Violation Of Natural Justice-Contention By Respondent To Avail
Remedy Of Appeal Under Section 107— Held That Impugned Order Being Passed Without Hearing The Appellant Is Set Aside— Respondents To Pass Fresh Orders.
The petitioner received notice proposing to levy tax in response to which no reply was submitted. A writ is filed challenging the order passed in consequence to said notice. The respondents contend that the impugned order can be challenged by way of appeal.
The Hon’ble court observed that no opportunity of hearing was afforded to the petitioner, therefore, the matter is remitted to pass fresh orders.
RAJASTHAN HIGH COURT
H.R. ENTERPRISES, GURPREET SINGH S/O SUBA SINGH
STATE OF RAJASTHAN [DINESH MEHTA, J]
Civil Writ Petition No. 5266/2021 Date of Decision: April 1, 2021
Jurisdiction Of Officer—Power To Conduct Inquiry U/S 67—Check Post Officers Cannot Be Permitted To Carry Rowing Enquiry As It Would Retard Free Flow Of Trade—In Addition Thereto, The Documents Were Found In Accord—Scope Of Anti Evasion Officer Squad Ends There Itself
The requisite documents were produced in respect of goods in transit. Extension to complete inspection from the competent authority was sought to conduct inquiry relating to alleged wrongful availment of input tax credit.
The petitioners contends that such fishing and rowing inquiry in relation to availment of ITC and suspicion about the purchase transaction is not within the domain of check post officer while exercising powers under Section 68 of the CGST Act, 2017 i.e. while goods are in movement.
It is held that the circular dated 13.04.2018, issued by the Central Board of Indirect Taxes and Customs lays down guidelines for inspection and release of the goods in transit, but the same has not been adhered to by the respondent. If a Check Post Officer or Anti Evasion Officer is permitted to carry on such fishing and rowing inquiry it would retard free flow of trade resulting in unnecessary and unwarranted harassment to the carrier of goods, so also to the consignor/consignee. Even, genuineness of the goods in transit per se is not in dispute and the nature of goods on physical examination was found to be in accord. Therefore, the scope of inquiry under Section 68 of the Act of 2017 by Anti Evasion Officer/ Check Post Officer or flying squad ends. The respondent is directed to release the goods and vehicle in question forthwith, in case of furnishing two solvent sureties executed by dealers. Furnishing of bank guarantee or cash security will not be insisted upon.
ALLAHABAD HIGH COURT
JAI MAA JAWALAMUKHI IRON SCRAP SUPPLIER
V/S STATE OF U.P.
[SAUMITRA DAYAL SINGH, J.] WRIT TAX No. 614 OF 2020
Date of Decision: March 17, 2021
Concealment Of Turnover—Couple Of Purchases Allegedly Concealed To Escape Turnover—Respondent Does Not Deny Issuance Of E Way Bill And Invoice—Alleged Transaction Cannot Be Held To Be Falling Under Undisclosed Turnover Merely Because Of Certain Discrepancies.
The appellate authority upheld tax and penalty in respect of two alleged loose purchases holding that the turnover was concealed. A writ has been filed contending that the said purchases were covered by Tax invoice, E-way bill. As a matter of fact the respondent has not denied the issuance of these documents. It is held that once revenue authority admits that the invoice and e-way bills relied upon were genuine, it is difficult to imagine how it reached a conclusion that these invoices were unaccounted for. The alleged discrepancy in GSTR-3B and GSTR- 2A referred by the Assessing Authority did not find favour by the appellate authority, therefore, the transaction cannot be held falling under category of undisclosed turnover merely because there were certain discrepancies. Petition is allowed.
KARNATAKA HIGH COURT INM TECHNOLOGIES PVT LTD.
THE UNION OF INDIA & ORS.
[SURAJ GOVINDARAJ, J.]
WP No.226277/2020 (T-Res)
Date of Decision: February 3, 2021
On Account Of Mere Technical Glitch In The Web Portal, Benefit Of Carrying Forward Of Central Credit To CGST Regime Cannot Be Denied
Where the petitioner was permitted to carry forward Central Credit to CGST regime through TRAN-1 but the electronic credit ledger on the website of the respondent did not reflect the same, grievance was filed but no action was taken. It is held by the Hon’ble Court that merely on account of glitch in the website a registered dealer cannot be denied the benefit of credit available under the provisions of Act.