THE SUPREME COURT OF INDIA
UNION OF INDIA
BHARTI AIRTEL LTD.
Special Leave to Appeal (C) No(s). 8654/2020 OF 2021
A M Khanwilkar & Dinesh Maheshwari, JJ
Date of Decision: 28.10.2021
Self assessment—ITC availment —non operability of form GSTR—2A—payment of tax through electronic cash ledger instead of electronic credit ledger in absence of information on the portal—circular allowing the correction in returns only during the period in which mistakes stand noticed challenged —Writ allowed by High Court directing the revenue to pay the refund of tax paid on account of non—availability of information on portal by correcting the returns in the period during the period in which the returns were filed—challenge by revenue before supreme court—held:—duty of asseesse to make self assessment on basis of books and records maintained by him—information on portal is merely facilitator—correction of returns as per section 39(9) can be made only in the period during which mistakes and omissions noticed—swapping of entries in electronic cash ledger and electronic credit ledger not allowed—allowing the correction of returns from backdate would lead to chaos in the tax administration —cascading effect on other stakeholders as well—revenue appeal allowed—section 39 rule 61
The Respondent/Assessee pleaded before the High Court that due to non-operability of Form GSTR-2A at the relevant time (July, 2017 to September, 2017), it had been denied access to the information about its Electronic Credit Ledger Account and consequently, it could not avail Input Tax Credit for the relevant period and discharged the liability of output tax by paying cash. According to the respondent/assessee, this had resulted in payment of double tax due to the failure of department to operationalize the statutory forms for enabling matching and correcting the discrepancies electronically.
Also, challenge was made to Circular No. 26/26/2017-GST dated 29.12.2017 to the extent it restricted the rectification of Form GSTR-3B of the period in which the error had occurred. However, The High Court read down paragraph 4 of the said circular and allowed the respondent/assessee to rectify its returns in Form GSTR-3B for the period in question and further directed that on filing of rectified Form GSTR-3B, the claim would be verified and the revenue shall give effect to the same once it is verified.
The revenue being aggrieved by the said order of the High Court approached Supreme Court.
In the present cases the question which needs consideration is whether impugned Circular dated 29.12.2017 issued by Commissioner (GST) is without authority of law. The impugned circular had been issued under the signatures of Commissioner (GST) but it is notifying the decision of the board taken in the exercise of the powers conferred under section 168(1) of the 2017 Act. Accordingly the argument that the impugned circular had been issued without authority of law needs to be rejected.
It is noted that every assessee is under obligation to self assess the eligible ITC under section 16 and credit the same in the electronic credit ledger defined in section 2(46) read with section 49(2) of the 2017 Act. Under section 59, the registered person is obliged to self assess the tax payable under the Act and furnish return for each tax period as specified under section 39 of the Act. It is an obligation upon the registered person to maintain necessary books of accounts for the relevant period and to file the correct return on that basis. So the eligibility of ITC and discharging of OTL is to be determined in periodic returns based upon the account books based by the assessee himself.
Even before the implementation of GST, the entire liability of tax was being discharged on the basis of calculation of OTL and ITC as per books of accounts maintained by the assesee himself.
Though the operationalization of Form GSTR 2A would have facilitated the filing of return and making the self assessment regarding eligibility of ITC and availment thereof, the conditions specified in circular dated 29.12.2017 regarding rectification of the return in Form GSTR-3B cannot be assailed.
The condition of revising the return in the period in which the mistake or omission has been noticed as contained in para 4 of the Circular is in league with the express provision of section 39(9) which also provides for correction of returns in the month or quarter furnished in which such omission or incorrect particulars are noticed. The High Court has thus erroneously noted that there is no provision in the Act, which restricts such rectification of return in the period in which the error is noticed.
There is no provision regarding refund of surplus or excess ITC in the electronic credit ledger but it does not follow that an assessee who has discharged OTL by paying cash can later on ask for swapping of the entries keeping in view the fact that he was free to pay in cash even where he has surplus amount of credit available to him in the Electronic Cash Ledger. This is a matter of option which having been exercised by the assessee, cannot be reversed.
The court has opined that there is a statutory obligation upon the registered person to maintain Books of Accounts and record within the meaning of Chapter VII of 2017 Rules, which are primary documents and source material on the basis of which self assessment is done by the registered person about its eligibility and entitlement to get ITC and payment of OTL. Form GSTR-2A is only a facilitator for taking an informed decision while doing self assessment. Non-operability of GSTR 2A or any other forms will be of no avail because the dispensation stipulated at the relevant time obliged the registered person to submit returns on the basis of such self-assessent in Form GSTR-3B manually on electronic platform.
The correction can be made in the said returns only in the return for the period during which the omission or incorrect particulars are noticed. So it is not the case of denial of availment of Input Tax Credit at all, as it remains intact and can be availed in the subsequent returns including the next Financial Year.
Accepting the contentions of the assessee would not only result into illegality but in reality would lead to chaotic situation and collapse of tax administration as the revision of returns already filed by the assessee would have cascading effect and would affect the obligations and liabilities of other stakeholders.
The direction issued by the High Court allowing the Writ petitioner to rectify Form GSTR -3B for the period July to September 2017 is in the teeth of express statutory dispensation and thus cannot be sustained.
Resultantly the appeal filed by the revenue is allowed & the impugned order and judgment is set aside.
ORISSA HIGH COURT
BRIGHT STAR PLASTIC INDUSTRIES
ADDITIONAL COMMISSIONER OF SALES TAX (APPEAL) AND OTHERS
[DR. S. MURALIDHAR, CJ & B.P. ROUTRAY,J]
W.P.(C) No.15265 of 2021
Date of Decision: October 4, 2021
Registration—deficiency of reasoning in impugned order—registration cancelled on account of alleged availment of Fraudulent IT—reason mentioned by LPO that cancellation is done to prevent further fraud In interest of govt. revenue—High court unable to appreciate the reason given by LPO—None of clauses a, b, c of Rule 21 attracted—absence of proof of connivance of purchaser and dealer—registration to be restored
A SCN was served upon the petitioner for cancelling the registration on account of alleged availment of ITC fraudulently. The reply filed was said to have been short of satisfactory explanation and consequently registration was cancelled. The application for revocation thereof was filed which was rejected. An appeal was filed which was rejected with the reason that “the preventive measure has been taken by the LPO by cancellation of the registration of the appellate to prevent future fraud or to prevent from recurrence for such the regular claims of the ITC and that is the interest of the Government revenue”. A writ is filed whereby it is held that the Court is not in a position to appreciate the actual reasons that prevailed with either the Appellate Authority or the LPO for cancellation of the Petitioner’s GST registration.
None of the three circumstances outlined in Clauses (a), (b) & (c) of Rule 21 are attracted in the present case.
To attribute fraud in such circumstances to the Petitioner, as a purchasing dealer, the Department would have to satisfy a high threshold of showing that the purchaser indulged in the transactions with the full knowledge that the selling dealer was non—existent. It is to be shown that somehow the purchasing dealer and selling dealer acted in connivance to defraud the revenue. This threshold has not been made in the present case. The Department is now directed to restore the Petitioner’s registration. Petition is allowed.
MADRAS HIGH COURT
CONYBIO HEALTHCARE (INDIA) PVT. LTD.
THE ASSISTANT COMMISSIONER (C.T.) , THE COMMISSIONER OF CUSTOMS
WP NOS.25475 TO 25478 OF 2010 AND M.P.NOS.1 TO 1 OF 2010
Date of Decision: September 16, 2021
Maintainability of writ—assessment orders passed—writ filed challenging the same—Held that exercising of power under writ ought to be done in exceptional cases—litigants having filed only affidavits, disputed facts cannot be concluded—appellate forums are of more value in fact finding—therefore petitioner relegated to avail remedy of appeal u/s 31 of TNGST Act
A writ is filed against the assessment order passed though a remedy of filing an appeal is available under the Act. It is held that a writ is to be entertained in exceptional cases. Dispensing away with an appellate remedy is to be granted cautiously in view of the fact that the very purpose and object of legislation in providing an appellate authority cannot be diluted.
Moreover, the importance of fact finding by appellate forums is of more value. The litigants have only filed affidavits in the case at hand which are not enough to decide disputed facts…. Therefore, petitioner is bound to prefer an appeal u/s 31 of TN GST Act, 2017
GAUHATI HIGH COURT
SRI SUBHASH KUMAR SINGH
THE STATE OF ASSAM, THE SUPERINTENDENT OF STATE TAX, GUWAHATI
[HITESH KUMAR SARMA, J]
BAIL APPLICATION NO. 2007 OF 2021
Date of Decision: September 15, 2021
Bail—offence u/s 132 of CGST Act, 2017—petitioner already in custody for two months—offence report laid before court—investigation completed—no indication to show evasion for trial or hampering of witness by accused—bail granted with conditions
The applicant was arrested for having committed an offence u/s 132 of CGST Cat. It has been observed that he accused has been in custody for about 65 days, investigation has been completed, the offence report has been laid in the court. Presence of the petitioner may not be required for further investigation. There is nothing on record that indicated that the accused shall evade trail or tamper witness. Therefore bail is granted with conditions applied.
TRIPURA HIGH COURT
UNION OF INDIA
[AKIL KURESHI, CJ & S G CHATTOPADHYAY, J]
IA NO.1/2021 WITH WP(C) NO.531/2021
Date of Decision: September 14, 2021
Blocking of electronic credit ledger — Scope of Rule 86A—Held electronic credit ledger cannot be blocked for a period exceeding one year after blocking of as it is a temporary measure—no extension of period possible—for permanent disallowance, adjudication after hearing both parties is to be done
The electronic credit ledger was blocked by the Commissioner under Rule 86A of CGST Rules. The petitioner has filed a petition challenging the vires of section 16(2) .
It is held that under rule 86A subrule 3, it is clearly mentioned that the said attachment cannot continue after expiry of one year. Therefore, the order being temporary is interim measure. If department required a permanent disallowance of credit of accumulated amount if the ledger, t has to give a bi parte hearing before adjudication thereof. Hence there is neither any scope of extension not it can continue after one year.
The same shall be released.
PATNA HIGH COURT
THE UNION OF INDIA
[SANJAY KAROL, CJ & S. KUMAR, J]
CIVIL WRIT JURISDICTION CASE NO. 6509 OF 2021
Date of Decision: September 9, 2021
Recovery from bank account—malafides alleged on part of department—Held had it been so, original assessment order passed in 2020 would not have been rectified to reduce the amount by passing another order in 2021— respondent intends to protect both assessee and revenue—Original order passed in 2020 quashed only on the ground of non service of notice on GST Portal implying deprivation of opportunity of hearing—petitioner to appear with material before respondent for fresh orders
It is contended that the respondent recovered the amount from the petitioner’s Bank Account and that no adequate opportunity of hearing was afforded to the petitioner before carrying out the impugned action.
The court has refused to accept that there are any malafides of the respondent as the original order passed in 2020 was rectified reducing the quantum of liability by passing another order in 2021 which is indicative that the respondent wants to protect both governments as well as petitioner’s interest.
Only the issue that that the original order passed in 2020 was without opportunity of hearing is considered as there was no information uploaded on the GST Portal (Form DRC 01 and DRC 01A) and the notice cannot be said to have been served upon the petitioner. Only on this ground, the original order is quashed directing the petitioner assessee to appear with all materials before the respondent who shall pass a speaking order.
KARNATAKA HIGH COURT
STERNE INDIA PVT. LTD.
UNION OF INDIA, ADDITIONAL DIRECTOR GENERAL OF GST INTELLIGENCE
[S. SUNIL DUTT YADAV, J]
WRIT PETITION No. 12875 OF 2020 (T—RES)
Date of Decision: September 8, 2021
Provisional attachment- communication of order – Provisional attachment of bank account- communication of the order only to the bank manager- Non adherence to the Rule 159 (2) of CGST Rules observed – absence of communication to petitioner – no reason to accept assertion fo revenue – writ allowed
The petitioner submits that the said factum of provisional attachment of the bank account was learnt by the petitioner only from their banker. It is further submitted that the necessary representation came to be made by the petitioner in terms of Rule 159(5) of the CGST Rules, 2017 seeking release of attachment and defreezing of bank accounts, but such request was neither considered nor any order was passed.
It is observed that the order of provisional attachment is required to be communicated to the party affected for a meaningful exercise of the right conferred under Rule 159(2) of CGST Rules.While the petitioner has drawn attention to Annexure—A addressed to the Bank Manager regarding the provisional attachment of bank account of the petitioner in exercise of power under Section 83 of the CGST Act, it is pointed out that such communication does not have any copy addressed to the petitioner.
Therefore, in light of absence of any material to indicate conclusively that the communication was sent to the petitioner to his address by producing any cogent material enclosing the postal receipt, there is no reason to accept the assertion of Revenue.
DELHI HIGH COURT
MICROMAX INFORMATICS LTD.
UNION OF INDIA & ORS.
[MANMOHAN & NAVIN CHAWLA, JJ]
W.P.(C) 8026/2021 & CM 24992/2021
Date of Decision: September 2, 2021
Transitional credit—validity of amendment dated 18/5/2020—the said amendment prescribes time limit for taking ITC—the petitioner’s case is covered by a judgment given in case of SKH Sheets Metals Components wherein it was held by Delhi High Court that that Petitioner is permitted to revise TRAN-1 Form on or before 30.06.2020 and transition the entire ITC, subject to verification by the Respondents—Thus, the said amendment does not affect the right to claim Transitional credit
The petitioner has challenged the retrospective amendment dated 18.05.2020 by which the provision of Section 128 of the Finance Act, 2020 has been inserted with effect from 1s t July, 2017 to Section 140 of the Central Goods and Service Tax Act, 2017 by prescribing a time limit for taking the input tax credit. The petitioner has also sought the benefit of transitional credit .
The judgment of SKH Sheet Metals Components covers the issue in hand. the amendment does not affect the right of the petitioner to claim transitional credit and it would be unnecessary to deal with the Constitutional challenge to it. Further, the petitioner is at liberty to apply for the transitional credit which shall be dealt with by the department and disposed of by the department in accordance with law.
RAJASTHAN HIGH COURT
UNION OF INDIA, ADDITIONAL DIRECTOR GENERAL DIRECTORATE GENERAL OF GOODS AND SERVICE TAX INTELLIGENCE, COMMISSIONER OF CGST, JOINT COMMISSIONER, CGST, SUPERINTENDENT (ANTI EVASION) CGST
[ARUN BHANSALI, J]
S.B. CIVIL WRIT PETITION NO. 6019/2021
Date of Decision: September 14, 2021
Bank guarantee—whether section 67 could be invoked for release of seized goods—Goods seized on search—Honble court had earlier passed an interim order for goods to be released without insisting for bank guarantee—vacation of the order sought for by respondents contending that the said order is contrary to provisions of section 67 and Rule 140 of the Rules—held qua the nature of interim order passed, the court required the assessee to take recourse to the provisions of the Act and the Rules for release on provisional basis upon execution of bond and furnishing of security as has been prescribed and it was ordered that the orders passed by the High Court which are contrary to the statutory provisions shall not be given effect by the authorities— petitioner himself having applied U/s 67 of the Act for release of goods cannot hold respondents as to be faltering—stay vacated and bank guarantee to be furnished
An order was passed by the Hon’ble Court holding that the petitioner shall not be insisted for submitting bank guarantee for release of goods seized. The respondents filed an application for seeking vacation of the said interim order. The petitioner contends that the action of respondents in resorting to Sec.67(2) of the Act in seizing the goods is not valid. Moreover the said section has no application as it applies only when goods or documents or books are “secreted”. It is further alleged that the respondent has no jurisdiction in the present case as it is contrary to Sec.6 of the Act wherein only DGGI has the jurisdiction in the matter.
It is held that it cannot be said that it is a case of registered person and Sec.67 of the Act cannot be invoked if the circumstances exists.
To say that the documents, books etc. were not secreted is essentially premature. Prima facie the said seizure cannot be said to be illegal for applying Sec.67(6) of the Act.
The plea regarding lack of jurisdiction cannot be continence while dealing with the application seeking vacation of the interim order.
Therefore, a perusal of the above observations indicate that qua the nature of interim order passed, the court required the assessee to take recourse to the provisions of the act and the rules for release on provisional basis upon execution of bond and furnishing of security as has been prescribed and it was ordered that the orders passed by the High Court which are contrary to the statutory provisions shall not be given effect by the authorities. The petitioner himself applied U/s 67 of the Act for release of goods for which the respondents cannot be faulted.
The impugned order is thus modified to the extent that beside surety bond equivalent to value of goods, security in form of Bank Guarantee would be furnished for releasing of seized goods.
ORISSA HIGH COURT
SMRUTI RANJAN SAHOO
STATE OF ODISHA
[D. DASH, J]
BLAPL NO.5883 OF 2021
Date of Decision: September 22, 2021
Bail – Offence u/s 132 of CGST Act – Magnitude of offence high – hampering the objective new tax regime – bail rejected
The petitioner is alleged to have committed a fraud of availing ITC to the tune of Rs 9 crore by creating dummy firms. A bail is sought on the ground that it is resident of the city, has been in custody since June 2021 and cannot tamper the evidence. Keeping him in custody would not serve any purpose.
It is held that the Petitioner is said to have been involved in the above specific economic offences of quite significant magnitude which are considered to be grave. Such dubious roles alleged to have been played by the Petitioner stand in the direction of making hefty unlawful and unimaginable financial gain by giving the show that for such sincere involvement in the business and carrying out the same, his entitlement to the huge sum as incentive in the form of Input Tax Credit (ITC) flowed which he received, but in reality as per the case laid, it is having the tendency of foiling the whole idea behind the introduction of the new Tax Regime to achieve the objective of speeding up the run of the Nation to stand at the forefront having a key position in the economic map of the globe. Therefore, bail is rejected.
CHHATTISGARH HIGH COURT
PARITOSH KUMAR SINGH ALIAS DIWAKAR CHOUDHARY
STATE OF CHHATTISGARH, SENIOR INTELLIGENCE OFFICER DIRECTOR GENERAL OF GST
[NARENDRA KUMAR VYAS , J]
WPCR No. 469 of 2021
Date of Decision: October 1, 2021
Bail—default release u/s 167(2) of Cr.P.C.—arrested but no charge sheet lodged till 60 days— only complaint lodged on 59th day— default bail claimed in view of Section 167(3) of Cr.P.C.—section 173 required filing of report but GST officer are not police officers—hence filing of final report as envisaged u/s 173 does not apply to GST officers— complaint being filed within 60 days no default bail is granted
The petitioner had been arrested for alleged offence committed u/s 132 of CGST Act. After a period of 59days, a complaint is filed by the respondent authority instead of charge sheet as required u/s167(2) of Cr.P.C. Therefore, it is entitled to a default release on bail as the charge sheet was supposed to be filed within 60 days after the investigation.
It is held that section 167(2) of Cr.P.C grant default bail to an accused as a measure to protect him against any malafide and to protect his liberty as enshrined under article 21 of the constitution of India. But the GST officers are not police officers, therefore they are not required to show the final reports envisaged under section 173 of Cr.P.C. Thus no bail is granted as per the sections mentioned above as the complaint required to be filed within 60 days is observed to have been filed.
RAJASTHAN HIGH COURT
KHALID S/O SHRI YASIN KHAN
THE STATE OF RAJASTHAN, THE COMMISSION, COMMERCIAL TAXES DEPARTMENT, ASSISTANT COMMISSIONER, WARD—III, STATE TAX
[SANJEEV PRAKASH SHARMA, J]
CIVIL WRIT PETITION NO. 1342/2021
Date of Decision: May 17, 2021
Confiscation of goods alongwith the conveyance—no opportunity was given for depositing the amount of demand of tax and penalty—Rule 140(1) of the CGST Rules—goods confiscated along with vehicle u/s 129 of CGST Act —While the petitioner assailed the initial action of the respondents before this Court, the respondents in meantime passed an order of demand of Tax and penalty on day x. Said order allowed 14 days time to deposit the amount—further, notice for confiscation of goods issued—as observed, on the date x when the order of demand of tax and penalty was issued, 14 days time had already been lapsed. Virtually, the petitioner has not been given any chance to deposit the tax and penalty—petitioner permitted to get provisional release its goods and vehicle in terms of Rule 140 till the final outcome
The petitioner has assailed the order of the respondent confiscating its goods and vehicle u/s 129 of the Act. While the writ was pending, the respondent passed an order dated 8/2/2/ for tax and penalty payable within a period of 14 days. However, after that a notice for confiscation of goods was issued. The Hon’ble court has observed that when the order for tax and penalty was issued, virtually 14 days had already lapsed depriving the petitioner of the opportunity to pay the amount. The respondents are thus directed to provisionally release the goods if the petitioner fulfils the conditions enlisted in Rule 140(1) of CGST Rules, 2017.
MADRAS HIGH COURT
STATE TAX OFFICER, CHENNAI
W.P.NO.19756 OF 2021 AND W.M.P.NO.21034 OF 2021
Date of Decision: September 21, 2021
Assessment order—section 73 of CGST Act—order passed without following due procedure—no forms GST DRC 01 and GST DRC 01A issued before passing of impugned order—Held procedure is violative of Rule 142 of CGST Rules causing prejudice to the petitioner— Impugned order set aside
A writ is filed contending that the impugned order passed u/s 73 of the Act was not preceded by Forms GST DRC—01 and GST DRC—01A as required under the Act.
It is observed that the requirements of issue of FORM GST DRC-01 and FORM GST DRC-01A have been statutorily ingrained in the rules made under the CG&ST Act i.e., Rule 142 of the CG&ST Rules, 2017. Non adherence to Rule 142 had caused prejudice to the writ petitioner qua impugned order and therefore it is a rule which necessarily needs to be adhered to. It is not a mere procedural requirement but on the facts and circumstances of this case, it becomes clear that it tantamount to trampling the rights of writ petitioner.The impugned order is thus set aside.
MADRAS HIGH COURT
HEC INDIA LLP
COMMISSIONER OF GST AND CENTRAL EXCISE AUDIT-II, ASSISTANT / DEPUTY COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI
[T.S.SIVAGNANAM AND SATHI KUMAR SUKUMARA KURUP, J.J.]
W.A. NO. 2341 OF 2021
Date of Decision: September 16, 2021
Blocking of credit—non communication of reasons—Electronic credit ledger blocked u/r 86A—no reasons recorded or communicated—Principles of natural justice need to be adhered to while reading the said Rule—appellant ought to be allowed to know reasons and raise objections accordingly—Therefore, respondent directed to communicate reasons in writing for further orders
Before invoking the power under Rule 86-A, the Authority should have reasons to believe that the credit of input tax available in the electronic credit ledger has been fraudulently availed or the assessee is ineligible, on account of anyone of the contingencies in clauses (a) to (d) of Rule 86-A(i). That apart, the Rule contemplates that the said authorities have to record the reasons in writing and not allowed to debit any amount equivalent to such credit in the credit ledger. In the absence any reason, which has been recorded, the invocation of power under Rule 86-A should be held to be unauthorised, illegal and without jurisdiction. The power under Rule 86-A has been invoked and reasons have been recorded that needs to be communicated to the assessee so as to enable the assessee to put forth his objections .It is no doubt true that there is no such procedure provided for under Rule 86-A. Nevertheless it is required to read the principles of natural justice into the said Rule.
Therefore, for an effective representation to be made the Appellant is entitled to know the reasons, based on which the power under Rule 86-A was invoked by the second respondent.
MADRAS HIGH COURT
THE STATE TAX OFFICER, INSPECTOR CELL-II, TRICHY
[R.SURESH KUMAR, J]
W.P.(MD)Nos.14395 to 14398 of 2021 And M.P(MD).Nos. 11326, 11330, 11332 and 11333 of 2021
Date of Decision: August 13, 2021
Natural justice—assessment orders passed without complying with provision of section 75 of CGST Act—held opportunity provided twice not availed of—hearing provided third time and objections filed by petitioner—no violation of the provisions—opportunity of hearing is said to have been provided—petition dismissed
The assessment orders passed are challenged on the grounds that no opportunity of hearing is provided as required u/s 75 of the CGST Act. The petitioner was given two or three opportunities to appear but since he took adjournment he was heard finally on the third occasion of opportunity provided.
It is held that Section 75(4) of the Act, has mandated that, only an opportunity of hearing, that means one opportunity shall be given mandatorily to the Assessee for personal hearing .Such one opportunity had been given, and ultimately, the third opportunity also had been given to him where he was permitted to file objection or reply and personal hearing was also given to him was utilised.
It cannot be treated that the respondent has violated the mandatory provisions contained in Section 75(4) of the Act — Petition dismissed.
ALLAHABAD HIGH COURT
SAVISTA GLOBAL SOLUTIONS PRIVATE LIMITED
UNION OF INDIA AND 5 OTHERS
[NAHEED ARA MOONIS & SAUMITRA DAYAL SINGH, JJ]
WRIT TAX NO. — 113 OF 202
Date of Decision: October 6, 2021
Refund—Rule 96A of CGST Rules—Application of refund filed for month of July, 2019—ought to have been processed with in a period of sixty days as per law—processed and refund directed later vide order dated Jan, 2020—writ filed seeking refund still left unpaid—held respondents to grant refund alongwith interest as the order had attained finality—No way to escape liability to pay interest—refund to be paid online or through bank account within a period of one month—writ allowed
The application for refund was filed by the petitioner manually, on 27.09.2019 yet the same was not processed and the refund was not directed to be paid within a period of sixty days therefrom. However it was processed much later and an order directing for refund was passed on Jan 2020.
The respondent claims no interest is due to the petitioner and that the refund may be paid only after due compliance is made by the petitioner and respondent no.6 by logging in the particulars of the refund and the refund order on the GST portal, through online mode, only.
It is held that once the application had been processed and order passed, which has attained finality, the respondents cannot escape the plain effect of the same. They also cannot escape the liability of interest that arises on noncompliance of the same. Respondents are directed to pay the refund within a period of one month
MADRAS HIGH COURT
AYYANAR STEEL TRADING
STATE TAX OFFICER (INTELLIGENCE) , DEPUTY COMMISSIONER (ST) GST
W.P.NO.18582 OF 2021 AND W.M.P.NOS.19821 & 19822 OF 2021
Date of Decision: September 6, 2021
Assessment order—Natural Justice—Section 75 of TNGST Act—adverse order passed without providing an opportunity of being heard—impugned order set aside as section 75(4) makes it imperative to hear the appellant if it requests as well as if adverse order is being passed—respondent to do denovo exercise in this regard
An order of assessment was passed. It is contended that u/s 75 of TN GST an opportunity of hearing is mandatory before passing an adverse order against the assessee. The respondent contends that such a request is to be made in writing.
It is held that as per section 75(4) of the Act an opportunity is to be provided not only on request but even if adverse order is being passed. Therefore, the respondent is directed to pass a fresh order after hearing the assessee.
CALCUTTA HIGH COURT
SHREE AUTOMOTIVE (P) LTD. & ANR.
JOINT COMMISSIONER OF STATE TAX, GOVERNMENT OF WEST BENGAL & ORS.
[MD. NIZAMUDDIN, J.]
W.P.A. 16781 OF 2019 WITH CAN 1 OF 2020 CAN 2 OF 2020 CAN 5406 OF 2020 CAN 5408 OF 2020
Date of Decision: September 7, 2021
Interest—section 50 of GST Act—held interest is payable on that amount of tax which is paid by debiting the electronic cash ledger in view of retrospective amendment of section 50
The order demanding interest of Rs. 2,51,15,982/- under Section 50 for the period July, 2017 to March, 2018.i is challenged. The petitioner contends that the in view of retrospective amendment of section 50, interest is payable only on the amount of tax paid by debiting in electronic cash ledger.
The court has agreed to the submission and directed the respondent that respondent will recalculate the demand in accordance with law and after taking into consideration the aforesaid amendment of Section 50 of GST Act.
ORISSA HIGH COURT
DEPUTY COMMISSIONER OF CT & GST, BARBIL CIRCLE, JAJPUR AND ANOTHER
[DR. S. MURALIDHAR, CJ & B.P. ROUTRAY JUDGE, J]
W.P.(C) NOS.23508, 23511, 23513, 23514 AND 23521 OF 2021
Date of Decision: October 7, 2021
Pre-deposit—rejection of appeal—section 107 of GSt Act—payment made through debit of ECRL—Not permitted—payment had to be made by debiting cash ledger
In terms of Section 107 (6) of the OGST Act, the Petitioner was required to make payment equivalent to 10% of the disputed amount of tax arising from the order against which the appeal is filed. This payment was required to be made by the Petitioner by debiting its ECL as provided under Section 49(3) read with Rule 85 (4) of the OGST Rules. According to the Department, this liability of pre-deposit could be discharged only by debiting the ECL. However, it was noticed that the Petitioner sought to make payment of the pre-deposit by debiting the ECRL. Considering this to be defective and liable for rejection of the appeal
The court has held that It is not possible to accept the plea of the Petitioner that “Output Tax”, as defined under Section 2(82) of the OGST Act could be equated to the pre-deposit required to be made in terms of Section 107 (6) of the OGST Act. The proviso to Section 41 (2) of the OGST Act limits the usage to which the ECRL could be utilised. It cannot be debited for making payment of pre-deposit at the time of filing of the appeal in terms of Section 107 (6) of the OGST Act.
The Court is unable to find any error having been committed by the appellate authority in rejecting the Petitioner’s contention that the ECRL could be debited for the purposes of making the payment of pre-deposit.
PUNJAB AND HARYANA HIGH COURT
AMANDEEP SINGH BHUI VERSUS INSPECTOR (PREVENTIVE) CENTRAL GOODS AND SERVICE TAX.
Dated.- October 28, 2021
HON’BLE MR. JUSTICE HARNARESH SINGH GILL
Default bail u/s 167 of CrpC- bail granted after 60 days due to failure to present challan – stringent conditions imposed by Chief judicial magistrate – held bail u/s 167(2) is a default bail and a statutory right – following the judgment given by the Apex court , it is observed that such a right of bail is an indefeasible right free from any embargo – no deposit to be asked for in case of default bail – impugned order modified accordingly
The petitioner was granted default bail u/s 167 of CrPC for alleged offences u/s 132 of CGST Act although stringent conditions were imposed while granting it. The revision against the order was declined. Thus, the petitioner has approached the Hon’ble court with a contention that since default bail u/s 167 of CrPC is a statutory right and cannot be impeached by imposition of such stringent conditions like furnishing of in the sum of Rupees One Crore with two sureties in the like amount and furnishing of a bank guarantee/FDR for an amount of ₹ 50 lakh.
It is held that in view of the judgment of the Hon’ble Supreme Court in Saravanan’s case the default bail under Section 167(2) Cr.P.C. cannot be equated with the discretion of the Court under Sections 437, 438 or 439 Cr.P.C., wherein the Court has got ample power to impose any condition as would be deemed fit. The indefeasible right under Section 167(2) Cr.P.C., accrued due to the failure on the part of the investigating agency to complete the investigation and present the challan within the stipulated period would, therefore, be a right free from any inhibition or embargo. The impugned order of the chief judicial magistrate is thus modified accordingly.