ALLAHABAD HIGH COURT
Aalok Traders v.
Commissioner Commercial Taxes and 2 Others
[Suriya Prakash Kesarwani & Jayant Banerjee, JJ]
Writ Tax No. 419 of 2022
Date of Decision: April 27, 2022
Interest —Denial of—Tax & penalty imposed u/s 129—Bank draft accepted for release of goods—respondent mistakenly showed deposit under the State Act instead of IGST Act— Moreover, ID created temporarily without giving password to petitioner— Refund granted much later—Denial of interest thereof on delay refund— Held mistake of respondent—Respondent not to take advantage of its own wrong—Interest order to be granted.
While accepting deposit of tax and penalty by bank draft from the petitioner for release of goods under section 129 (3) of the U.P.GST Act, the officer mistakenly showed the deposit under the aforesaid Act instead of IGST Act and further committed an error by depositing
the said amount by creating a temporary ID at its own, without informing any password to the petitioner. After allowing of appeal, the petitioner applied for refund physically as it could not do so online. The respondents were bound to refund along with interest but on one hand they did not grant refund for more than 33 months and on the other hand they did not grant interest on the delay refund of that amount. The principal amount deposited was refunded the petitioner much later.
The court has observed that the respondents have 1st committed wrong by showing the deposit under IGST Act, secondly by showing the deposit by creating temporary ID at its own and thirdly, not informing the petitioner the password for that ID, to enable him to apply in the prescribed form. It is well settled “construction which permits one to take advantage of one’s own wrong or to impair one’s own objections under a statute should be disregarded . The interpretation should as far as possible be beneficial in the sense that it should suppress the mischief and advance the remedy without doing violence to the language’’.Thus the respondents cannot be allowed to take advantage of their own wrong. The respondents are directed to pay interest to the petitioner for the period mentioned at the rate notified under section 56 of the act. The writ is allowed.
MADHYA PRADESH HIGH COURT
Rajdhani Security Force Pvt Ltd v.
Union of India
[Sheel Nagu & Maninder S . Bhatti, JJ] Writ petition No. 11498 of 2021
Date of Decision: April 25, 2021
Appeal— Condonation of Delay— Cancellation of Registration—Appeal Filed after One and Half Years—Dismissal of Being Time-Barred—Wait Disallowed in View of No Sufficient Reason Explained for the Delay
On account of filing of returns the registration was cancelled. An appeal was filed which was dismissed being time-barred. The court has observed that the appeal was filed after almost one and ½ years from the date of order of cancellation. There has been no sufficient reason explaining the delay. Therefore, they does not seem to be any error in dismissing the appeal. The writ is dismissed.
KARNATAKA HIGH COURT
Hubbali Dharwad Advertisers Assn v.
State of karnataka [Suraj Govindraj, JJ]
Writ Petition No. 104172 of 2021
Date of Decision: April 21, 2022
Advertisement Tax—Power Of Municipal Corporation—Advertisement agency—Writ Filed Against The Demand Raised By The Corporation On The Petitioners With Regard To Advertisement Hoardings Used By Them—Contention Raised By The Petitioner
That GST Already Paid On The Transaction And Levy Of Advertisement Tax Amounts To Double Taxation—The Court Observed That GST Paid By The Petitioner Was Actually Tax Collected By It From Its Clients With Respect To Services Rendered— Transaction With The Corporation Related To The Permission For License Granted For Putting Up Hoardings On Land Belonging To Either Corporation Or Private Party—Both Transactions Are Distinct— Incidence Of Tax On Both Of Them Is Also Distinct—Corporation Empowered To Levy Advertisement Fee under Section 134 Of The Karnataka Municipal Corporations Act— Writ Dismissed
It is contended by the petitioner that despite the Association of advertising agencies ( petitioners) making payments of advertisement tax Under the GST Act regularly, a notice has been issued by the respondents to pay tax as regards advertisement hoardings used by them. It is contended by the petitioners that the authority cannot levy advertisement tax after the enactment of GST Act.
The court has observed that the petitioners are carrying on advertisement business and collecting GST from the clients and the making it to the authorities. It is not that the petitioners are making payments of GST out of their own pockets. In this transaction the petitioner is only a collecting agency collecting GST payable on the service rendered and depositing the authorities. The incidence of GST is on the service rendered by the petitioner to its clients and has nothing to do with respondent municipal Corporation. The transaction with the municipal Corporation is the permission for license granted by a court putting hoardings on the land belonging to the Corporation or on the
land belonging to a private party. There are 2 distinct transactions and the incidence of tax on both these are different. Therefore, the writ is dismissed. There is no conflict between the power to levy GST under the act and power of municipal Corporation to levy advertisement fee or advertisement tax under section 134 of the Karnataka municipal Corporation Act
MADRAS HIGH COURT
Theco India Pvt Ltd v.
The Secretary, The Anti National Profiteering Authority
[Anita Sumanth, J]
Writ Petition No. 15527 of 2020
Date of Decision: October 27, 2021
Antiprofiteering—Suomoto Investigation in Terms of Rule133 of CGST Rules— Widening Scope of Enquiry to Include Suomoto Review from July 2017 till Date of Complaint in 2018— Complaint Lodged against the Petitioner Much Earlier than insertion of CGST Rules i.e. 2019— Notice Issued after Suomoto Investigation Conducted in Terms of Rule 133 of the Rules—Contention Raised That Power of Suomoto Investigation Available Only from June 2019 ,Should Operate Prospectively and Not with Regard Complaint Filed Prior thereto—Held power invoked under Rule 5(a)—considering objective of antiprofiteering, submission of prospective operation cannot be accepted— anti competitive Act similar to antiprofiteering in objectives thereby rejecting argument of distinguishment of cases falling in support of respondents—opportunity of hearing provided after issuance of notice no violation of law—writ dismissed
A notice was issued by the National anti-
profiteering authority 10 days after a report by the director general of the authority was prepared dated July 1, 2020. The said investigation was conducted after a complaint was filed on 6/1/2018 by a customer that the petitioner had not passed ITC to it in respect of purchases made by it from the petitioner. The petitioner has challenged the said order contending that the power of suomoto investigation in terms of Rule 133 of the CGST rules was available to the authority from June 2019 and should prospectively not in respect of any complaint filed prior thereto.
The court has observed that section 171 of the CGST Act provides for measures to prevent profiteering by supplier of goods and services. Rules 122 to 137 in chapter XV vest power to put In place methodology and procedure to determine instances of profiteering in the authority. Rule 5(a) has been followed in so far as the authority has expanded the scope of enquiry to all business transactions between the period July 2017 2019 .The director-general has called the petitioner before forming its report dated 01/07/2020 and there is no violation of the procedure as contemplated. Based on the report the authority has issued the notice seeking explanation as to why the report accepted and liability towards profiteering be determined. Bearing in mind the objective of antiprofiteering measures, the submission that Rules are prospective in operation and can be applied respect of complaints filed prior to the date of insertion of the rules is not acceptable.
ALLAHABAD HIGH COURT
Varun Gupta v.
Union of India and Another
[Surya Prakash Kesarwani & Jayant Banerji, JJ]
Date of Decision: May 11, 2022
Provisional Attachment—Importance Of Notice—Provisional Attachment Order Passed Under Section 83—No Prior Notice Issued As Required Under Section 74— Argument Regarding Amendment Of Section 83 Of The Act Not Acceptable As The Said Amendment Came Into Force Later Than Date Of Passing Of Impugned Order—Writ Allowed
The petitioner has challenged the provisional attachment order. The respondent contended that proceedings under section 74 of the CGST Act were pending at the time of attachment. As per section 74 issuance of service of notice is provided where it is believed that there has been any suppression of facts to evade tax. It is submitted that no notice under section 74 had been issued on the date of attachment. Consequently, the attachment order is without jurisdiction and hence not sustainable. The respondent also pleaded that there had been an amendment in section 80 3 w.e.f.1/1/22. Thus the make provision of section 83 was not available on the date the impugned attachment order was passed. The petitioners allowed and the impugned order is quashed.
ANDHRA PRADESH HIGH COURT
Lakshmi Sowjanya Enterprises v.
[Praveen Kumar & V. Sujatha, JJ] WrIt petition No. 5999 of 2021
Date of Decision: April 20, 2022
Natural Justice—Furnishing of Material before Passing Order—Impugned Order under Section 79 Proposing to Auction Petitioner’s Premises—No Material before Passing an Order Supplied To Petitioner as required u/s 75—Contention That Material Could Be Collected by Petitioner from Toll Plaza—Violation of Natural Justice—Writ Allowed—Remanded For Fresh Hearing
An order under section 79(1)(d) of APGST Act was passed proposing to conduct auction of the petitioner ’s premises to recover an amount under the GST Act. It is contended that the impugned proceedings came to be issued without furnishing the material relied upon by the authority concerned by directing the petitioner to pay tax of a certain amount. In other words as per section 75 of the ACT the petitioner should be given material relied upon while passing an order against him failing which the same would be in violation of principles of natural justice. However the respondents contained that the material collected was from the toll plaza the same would be collected by the petitioner. It is held that since the impugned orders were never supplied to the petitioner, there has been a violation of principles of natural justice. Even if the petitioner has committed a grave offence, an opportunity to defend his case should have been provided.. Hence the writ petition is allowed and the impugned order to set aside and the matter was remanded back to the respondent to deal with the same after giving an opportunity of hearing.
ANDHRA PRADESH HIGH COURT
Sri J.K. Yugandhar Singh
Deputy Asst Commissioner [Praveen Kumar and V. Sujatha, JJ] Writ Petitioner No: 22975 of 2021
Date of Decision: March 29, 2022
Natural justice—goods detained on account of lack of documents—notice of confiscation passed thereof—Written reply submitted— Impugned order of confiscation contested on the ground that section 129 to be invoked before passing of order under section 130— held that section 129 and 130 of GST Act are independent of each other—respondents allegation that written reply states no further requirement of hearing by petitioner—in such eventuality the facts being disputed, an appeal ought to have been filed
The petitioner ’ s goods were in transit when they were detained on account of lack of documents. The next day a notice of confiscation of goods was passed for levy of penalty and fine. The petitioner claims to have submitted his reply giving reasons as to how there was an error in levying of tax. However, the impugned order of confiscation of the goods and conveyance was passed. The petitioner has contested against the above-mentioned order on the grounds that no opportunity of hearing was provided to it.
To sum up , the petitioner has assailed the order alleging that the procedure under section 129 of the Act is required to be followed before detaining or seizing the words. It is held that sections 129 &130 of the Act are independent and the Act does not contemplate invoking section 129 before passing an order under section 130 of the Act.
The court has observed that in the reply stated by the petitioner it is written that
no personal hearing is required which is of course disputed by the petitioner. Since factual aspects of record is warranted, the petitioner ought to have preferred an appeal. The scope of interference under article 226 is very limited.
The petitioner is directed to pay the tax in penalty as order button so far as the payment of fine the amount was reduced from 9.
4 lakhs. Since the goods confiscated the authorities since acquitted time the amount as ordered may be reduced.
GUJARAT HIGH COURT
Madhav Copper Ltd v.
State of Gujarat
[J.B. Pardiwala and Ms Nisha M. Thakore, JJ]
Special Civil Application No. 2776 of 2022 Date of Decision: May 4, 2022
Registration— Revocation of—bank accounts and finished goods attached— registration cancelled—after courts orders passed consensus regarding finished goods, receivables from 47 debtors, raw materials etc. reached between the applicant respondents— at this juncture the court has permitted as an exceptional case for revocation of registration without insisting for online registration—larger issues to be taken up later
The facts state that the bank accounts of the petitioner are attached along with the finished goods. The court had earlier passed an order that the endeavour of the Department should be secure the amount from the debtors of the writ applicant rather than asking them not to make the payment. The goods that are attached are to be supplied to the Indian
Railways. They should not be any difficulty in allowing to supply those goods so that the payment of the same can be received in the bank accounts. However the GST registration has already been cancelled and there is an application for revocation of the same. The 3rd issue was regarding the statutory wages and dues.
Now at this juncture, that the parties have arrived at a consensus the writ applicant should be allowed to make an application in physical form for revocation of registration as an exceptional case and should not be insisted to file it online. The Department may permit the applicant to make payments towards staff, electricity bills etc. from the cash credit account. The debtors shall be intimated within one week. The larger issue shall be looked into when the matter is taken for further hearing.
MADHYA PRADESH HIGH COURT
Rajdhani Security Force Private Limited v.
Union of India
[Hon’ble Chief Justice Sheel Nagu and Hon’ble Chief Justice Maninder S. Bhatti]
Writ Petition No. 11498 of 2021
Date of Decision: April 25, 2022
Appeal—Limitation—Registration— Cancellation of—Appeal Filed after One and ½ Years — These Are for Delay Not Explained— Absence of Reasons in the Memo of Appeal—Dismissal of Appeal— Held Even after 4 Months Appeal Not Preferred—Unexplained Delay of One and ½ Years-Appeal Rightly Dismissed—Writ Disallowed
On account of non-filing of returns the GST registration was cancelled and the petitioner
filed an appeal which was dismissed as being time-barred. The court observed that the appeal was filed after one and ½ years from the date of order of cancellation of registration. Section 107 of the Act provides that the limitation period for filing of appeal is 3 months and further 1 month if it is shown that the appellant was prevented by sufficient cause.
It is held that despite 4 months the appeal was not preferred by the appellant nor even in the memo of appeal sufficient reasons for not filing for disclosed. The delay of one and ½ years has not been explained. The writ petition stands dismissed.