MADRAS HIGH COURT
NATIONAL ASPHALT PRODUCTS AND CONSTRUCTION CO.
STATE OF TAMIL NADU
[M.S. Ramesh, J]
W.P. NO. 11574 OF 2006 AND WPMP No.13190 of 2006
Date of Decision: September 2, 2020
Penalty—Non payment of entry tax—No payment of entry tax on import of heavy road vehicles as per prevailing law—Later levy of entry tax upheld by Apex court on such imports—Penalty imposed—writ filed—Bonafides observed on part of petitioner in paying entry tax on demand—Therefore, penalty not justified
The petitioner had imported heavy road laying vehicles and had not paid the entry tax in view of the prevailing law that time. Subsequently, the levy of entry tax on imported vehicles was upheld by the Supreme Court in the case of State of Kerala and others vs FR. William Fernandez and others. A notice has been issued proposing to levy penalty as per Sec.15 of the Entry Tax Act, 1990. Hence, a writ is filed in this regard. It is held that there is no fault with the petitioner not paying entry tax at that time. When the enforcement wing insisted for payment, the petitioner immediately paid the entry tax on the same day itself. Where there are bonafides on part of the importer in referring from paying the tax, the penalty is not justified. The petition is allowed.
PUNJAB AND HARYANA HIGH COURT
UFV INDIA GLOBAL EDUCATION
UNION OF INDIA
[RAKESH KUMAR JAIN & ASHOK KUMAR VERMA, JJ]
CWP NO.11961 OF 2020 (O&M)
Date of Decision: September 9, 2020
Attachment of bank account under CGST Act—Scope of section 83—Proceedings under section 67 over—held effect of s 83 ended after proceedings u/s 67 of the Act were over—pendency of the relevant sections is sine non quo—account ordered to be released
The officers of the DGGSTI had visited the premises of the petitioner taking access of all required documents. The bank account was provisionally attached U/s 83 of CGST Act, 2017. The petitioners had filed objections to it after which the Bank account was partly released for payments under Amenity Scheme. A writ is filed contending that the order of the provisional attachment has been passed U/s 83 of the Act on account of launching of proceedings u/s 67 of the Act and it is argued that proceedings U/Sec.67 were over and now proceedings either U/s 63 or Sec/74 were initiated, therefore, the attachment order u/s 83 has become redundant. It is held that effect of Sec.83 of the Act comes to an end as soon as the proceedings pending under the above mentioned sections are over because pendency of the proceedings is the sine qua non and if the Commissioner was of the opinion that it is necessary to do in the interest of government revenue it can passed an order in writing to attach any bank account if the proceedings are over. Therefore, the order passed by the respondent is patently illegal. The bank account of the petitioner is ordered to be released.
GUJARAT HIGH COURT
STATE OF GUJARAT
[J.B. PARDIWALA &
BHARGAV D. KARIA, JJ]
R/SPECIAL CIVIL APPLICATION NO.3109 OF 2020
Date of Decision: March 5, 2020
Provisional attachment of bank account—fictitious bills issued—enforcement wing report submitted against the petitioner—petitioner ignorant about such fictitious transactions made from its own firm—Section 83 rightly invoked—reasonable apprehension by department about failure to pay tax dues by petitioner—No interference required by court
It is the case of the petitioners that the bank accounts have been provisionally attached under Sec.83 of GST Act by the respondents without forming an opinion necessary to pass such order. The court has observed that the petitioner has issued a large number of e-way bills within a very short period without actual movement of goods. The report submitted by the Enforcement Department makes it further clear about the issue of bogus documents. Also the petitioner has shown ignorance with regard to the transactions reported to be fictitious made from the firm of which it itself is the owner.
Prima facie there is a reasonable apprehension that the petitioner may default in ultimate collection of demand likely to be raised. As the petitioners are indulging in bogus billing, causing loss to revenue, the impugned order is passed for protecting the government revenue as the petitioner has failed to produce on record to show its capacity to pay the tax dues which may be levied. It cannot be said that the respondent has no reason to form an opinion as required U/s 83 of the Act.
No interference is required to be made by the court.
MADHYA PRADESH HIGH COURT
AGRAWAL OIL MILL
STATE OF M.P.
[SHEEL NAGU AND RAJEEV KUMAR SHRIVASTAVA, JJ.]
W.P. 12679 OF 2020, W.P. 12690/2020 AND W.P. 12687/2020
Date of Decision: September 15, 2020
Natural Justice—Scope of section 67 of CGST Act –Documents seized on search—sufficient opportunity granted to produce remaining documents—Non production implies purposeful withholding of documents—prayer by petitioner to grant copies of seized documents declined on account of apprehension that it may lead to interpolation for depressing tax liability by petitioner—authority within its jurisdictional purview in the given case to refuse for supply of copies—Discretion u/s 67 reasonably exercised—no interference called out
A writ is filed by the petitioner contending that the copies of the seized documents were denied to it after the search and seizure process conducted by the officers in its premises. On the other hand the authority contents that the petitioner was asked to produce certain documents which were not supplied contending that the same were maintained in the computer. The authority has recorded that the intention on part of the petitioner in seeking copies of the seized documents is to cause interpolation in the account books maintained in his computer and therefore, discretion U/s 67 of the CGST Act was exercised denying the prayer for grant of copies. It is held that the opinion is founded upon reasonable apprehension that the supply of copies can adversely affect the investigation; therefore, the discretion U/s 67 of the Act appears to be judicially exercised. It cannot be said that the authority has travelled beyond its jurisdiction purviews.
CHHATTISGARH HIGH COURT
NSPR PLR JOINT VENTURE
COMMISSIONER OF CHHATTISGARH STATE TAX (GST)
[GOUTAM BHADURI, J]
WPT No. 130 of 2021
Date of Decision: August 27, 2021
Predeposit—appeal—dismissal of for failure of predeposit of 10% as required under S 107 of CGST Act—observed that entire tax liability stood deducted from cash ledger already—Therefore, appeal filed alongwith application of condonation for delay could be heard on merits without going into technicality—Its not that that no amount is deposited—department directed to hear on merits
In this case a summary tax liability was served against which an appeal was preferred. The appeal was rejected for failure of predeposit of 10% as required under section 107 of CGST ACT. The Hon’ble court has observed that if the entire amount of tax liability has been deducted and the appeal was pending along with an application for condonation of delay, then the appellate authority can always adjudicate the facts whether there was sufficient cause to condone the delay and may further extend the period of filing for a period of one month as per section 107 (4) of the central goods and services tax act, 2017. The dismissal of the appeal only on the ground that 10% amount has not been deposited cannot be too technically viewed and always the petitioner can go for adjudication on merits. It is not a case that no amount is deposited till date. The respondents are directed to decide the appeal in accordance to the observation made herein before.
BOMBAY HIGH COURT
KASTURBA HEALTH SOCIETY
UNION OF INDIA, THE STATE OF MAHARASHTRA, THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, THE ASSISTANT COMMISSIONER, GOODS & SERVICE TAX DIVISION, HINGNA, NAGPUR
[SUNIL B. SHUKRE & ANIL S. KILOR, JJ]
WRIT PETITION NO. 1745 OF 2020
Date of Decision: August 30, 2021
Advance Ruling—whether petitioner exempted from tax being occupied in imparting education—respondent contends that its not a charitable institution but only an identity engaged in running MGIMS —Held that the contention of petitioner society that to the extent it imparts education through its Special Purpose Vehicle MGIMS it is termed as an education al institution is not considered—matter remanded back for fresh consideration in light of aims and objectives of the society
The petitioner is a charitable institution engaged in imparting education. It contends that it is exempted from registration and therefore exempted from payment of service tax. The Ruling authorities had held that the MGIMS is run by petitioner society and is an entity that imparts education and cannot be termed as an educational institution. The reason given by both these authorities is that the petitioner-society is not an ‘educational institution’ because the activity of imparting education is carried on not by the petitioner-society in actual terms, but by its Special Purpose Vehicle-MGIMS.
The contention that, to the extent the petitioner-society imparts education through its Special Purpose Vehicle-MGIMS, the society would also be eligible to be termed as ‘educational institution’ and therefore, entitled for seeking exemption, is the submission of the society. This contention of the petitioner has neither been considered nor has it been answered specifically by these authorities. The authorities ought to have considered this contention independently of the activity of MGIMS and in the light of the manner in which the aims and objects of the society is fulfilled by the petitioner-society. The question posed by the petitioner-society in respect of which Advance Ruling was solicited, must be answered specifically by these Authorities. The matter is remanded back for fresh consideration and appropriate decision.
TRIPURA HIGH COURT
NE EQUIPMENT SOLUTIONS PVT. LTD
TRIPURA HIGH COURT
[AKIL KURESHI, C.J AND ARINDHAM LODH, J.]
WRIT PETITION NO. 577/2020-21
Date of Decision: August 24, 2021
Evasion of tax—goods under transport—e way expired on account of unintentional and unforeseen delay—IGST liability stood paid—petition disposed of
The petitioner, a company is engaged in business of dealing in construction machinery, had transported an excavator from Silchar to its head office at Agarthala under an e-way bill. The IGST was collected from the purchaser and declared in sale invoices. When the transport vehicle reached check post, the transport department of Tripura detained the vehicle stating that the excavator has no registration in the State which was violative of Section 192 A of Motor Vehicles Act. However, the petitioner paid fine and the vehicle was released. The vehicle was now intercepted by GST authority and detained on the ground that the e-way bill generated had lost its validity .A writ is filed in this regard and it is contended that the validity of e-way bill was lost on account of unexpected and unforseen delay in crossing the check post since the transport department had stopped the vehicle for non-registration. This process took more than 24 hours. The Hon’ble Court has held that the tax authorities must make a clear distinction between deliberate tax evasion and technical defects with no intention to evade tax. When the IGST liability has been fully discharged and there is no intention of part of the petitioner to evade the tax machinery should be released. The petition is disposed of.
BOMBAY HIGH COURT
UNION OF INDIA & OTHERS
[DIPANKAR DATTA, C.J & M.S KARNIK J.]
WRIT PETITION NO. 4733 OF 2021
Date of Decision: September 7, 2021
Provisional attachment u/s 83 of CGST Act—No attachment can be continued if no proceedings under Section 62, 63,64,67 and 74 are pending- writ allowed
A writ is filed contending that provisional attachment of property under Section 83 of CGST Act cannot be continued as there are no proceedings under Sections 62, 6, 64, 67, 73 and 74 pending. The Hon’ble Court has held that the present case is squarely covered by the decision given in a case of M/s S.S OFFSHORE Pvt. Ltd.. Therefore, the order of provisional attachment stands set aside with a direction to de-freeze the bank account of the petitioner. Writ is allowed.
ALLAHABAD HIGH COURT
SRI. SANJAY GARG
UNION OF INDIA AND OTHERS
[VIVEK AGARWAL, J]
APPLICATION U/S 482 NO.13923 OF 2021
Date of Decision: August 13, 2021
Section 132—complaint filed against invoking of—whether congnizable by the officer in the given case—Held, the officer in the said case is the Additional director General who is vested with the powers of commissioner thus requiring no interference by the Court—contention that since assessment yet to be completed and section 132 could not be invoked is unacceptable as the assessment is available on record- application dismissed
An application under Section 482 has been filed for quashing the order whereby of cognizance of complaint under Section 132 of CGST Act has been filed summoning the applicant. It is contended that the sanction has been issued by an incompetent authority. Secondly that the assessment is yet to be completed so invoking provision of Section 132 cannot be done. The Hon’ble Court has held that the authority concerned had issued summons in response to which the applicant had appeared, answered queries and signed the statement though the applicants had retracted his statement after about 3 months. Also, there is an assessment as available on record showing the amount of fraudulent ITC availed and utilized .Therefore, the argument that there has been no assessment and prosecution has been launched without any assessment is not made out. Secondly, the Additional Director General has been vested with the powers of the Commissioner hence it does not require any interference in the order of cognizance or the order of summoning. The application fails and is dismissed.
MADRAS HIGH COURT
M.MURTAZA MUSTAN ANJARWALA
THE SUPERINTENDENT OF GST
[P. VELMURUGAN, J]
CRIMINAL PETITION NO.6129 OF 2021
Date of Decision: March 29, 2021
Bail –offence u/s 132 of CGST —whether there is violation of CPC—petitioner called for enquiry- arrest memo issued the same day- remanded to judicial custody the following day—arrest is made only after enquiry and after statement is taken by petitioner based on which material is available against him- no violation of CPC—No bail is granted
The petitioner was arrested under Section 132 of CGST Act. The respondent police issued summons under Section 70 of CGST Act calling him for inquiry and on the same day by issuing an arrest memo after the inquiry he was arrested and then remanded to judicial custody the following day. The petitioner contests that the civil procedures has not been followed and no opportunity has been granted to it. The Hon’ble Court has held that sufficient opportunity has been given and during inquiry he made a statement voluntarily and based on that statement there is sufficient material against the petitioner. Therefore, after inquiry is completed when was arrested hence there is no by violation of CPC. Therefore, Court is not inclined to grant bail to the petitioner.
MADRAS HIGH COURT
SM CIVIL LABOUR CONTRACTOR
THE ASSISTANT COMMISSIONER
[M. SUNDAR, J]
WRIT NO. 17601 OF 2021
Date of Decision: August 31, 2021
Show cause notice—erroneous—date of public holiday fixed for hearing by mistake—no opportunity consequently granted for personal hearing—Direction to respondent to re issue show cause notice after eliminating the error
The registration of the writ petitioner was cancelled and no opportunity of being heard was granted it being the date of public holiday. Admittedly an error has been committed in the show cause notice, so the Court directs for reissuance of the show cause notice after eliminating the error. The impugned order is thus set aside on the ground that show cause notice has been issued inadvertently by fixing personal hearing on public holiday on account of Gandhi Jayanti. A petition disposed of.
JHARKHAND HIGH COURT
DIRECTORATE GENERAL OF GST INTELLIGENCE
[CHANDER SHEKHAR, J]
CASE NO. 665 OF 2019
Date of Decision: July 9, 2021
Contempt of order of summons—earlier petition was disposed of holding that the petitioner being summoned shall not be arrested by the officer on first day—however, after issuance of a dozen summons the petitioner neither appeared nor submitted documents—contempt filed by officer with a contention that directorate is reluctant to proceed in view of bar of arrest granted by Hon’ble court earlier—Held the respondent misread the order passed—one acting against law cannot claim its protection—avoiding appearance purposely entitles the officer to take coercive action
In 2019 a batch of petitions was disposed of holding that the petitioner shall appear before the Senior Intelligence Officer who had issued summons and they shall not be arrested on the first day when they appear. However, as contended by the Officer the petitioners did not appear and have neither submitted documents nor any other evidence on account of which the present contempt case is being filed. It is further contended that the directorate is reluctant to proceed against the individuals as the Court had held in the earlier order that the individuals shall not be arrested by the officer. The Hon’ble Court has held that the directorate has misread and misconstrued the observations in the order passed earlier it is well-settled in law that anyone intentionally acting against law is not entitled for any protection in law. It is certainly not the import of Section 69, Section 70 of the Act that an individual avoiding appearance before the authority without excuse can claim that even if it appears after dozen summons of the authority, the latter cannot take coercive action against him.
GUJARAT HIGH COURT
STATE OF GUJARAT
[J.B. PARDIWALA AND VAIBHAVI D. NANAVATI, JJ]
R/SPECIAL CIVIL APPLICATION NO.9286 OF 2020
Date of Decision: September 2, 2021
Provisional attachment—Order in DRC-07 passed—provisional attachment thereafter u/s 83 is set aside being without jurisdiction as provisional attachment cannot be done after passing of DRC-07
The respondent had passed an order in Form GST-DRC 07 in March 2020 after which an order of provisional attachment under Section 83 of the Act has been passed. A writ is filed seeking quashing of the order of provisional attachment. The Hon’ble Court has held that once order in Form DRC 07 has been passed the order of provisional attachment cannot be passed. The said order is held to be passed without jurisdiction and is thus set aside.