Appeal

Hon’ble Madras High Court in the case of Tvl.SKL Exports Vs Deputy Commissioner (ST)(GST)(Appeal),

Erode and Salem. 

“The impugned appellate orders indicate that appeals were filed about 21 to 24 days beyond the period for which appeal could be condoned by the appellate authority. The petitioner has explained the reasons for such delay by pointing out that rectification petitions were filed and that appeals were filed shortly after such rectification petitions were rejected" 

The petitioner has remitted 10% of the disputed tax demand and, in addition, a sum of Rs.1,26,02,698.80 was appropriated from the bank account of the petitioner towards the tax demand. In these circumstances, I am of the view that these are appropriate cases in which the appellate authority should be directed to receive and dispose of the appeals on merits.

Posted on: 23/10/2024

Hon’ble Supreme Court of INDIA in the case of Commissioner of Central Excise, Bangalore Vs M/S BRINDAVAN BEVERAGES (P) LTD. 

“If the allegations in the show cause notice are not specific and are on the contrary vague, lack details and/or unintelligible that is sufficient to hold that the noticee was not given proper opportunity to meet the allegations indicated in the show cause notice. In the instant case, what the appellant has tried to highlight is the alleged connection between the various concerns. That is not sufficient to proceed against the respondents unless it is shown that they were parties to the arrangements, if any. As no sufficient material much less any material has been placed on record to substantiate the stand of the appellant 

Posted on: 14/11/2022

Hon'ble Madras High Court in the case of Tvl. Progressive Stone Work, in W.P.No.17109 &17111 25048 of 2021 etc. batch, vide order dated 16.06.2022, 

29. Though some of the circulars and clarifications issued in the context of exports have been cited by the learned counsel for the petitioner, they are not relevant in the context of availing input tax credit at the threshold stage. In any event, these circulars are not binding this Court in terms of the decisions of the Hon’ble Supreme Court in the case of Commissioner of Central Excise Vs. M/s.Ratan Melting and Wire Industries, (2008) 13 SCC 1.

30. Therefore, I am refraining to make further comments on the applicability of the circulars. I am of the view, these matters are best left to be resolved before the hierarchy of the Appellate Authority prescribed under the Act.

31. Further, the Court have recognized few exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. None of these exceptions are attracted in the facts of the present case.

32. Admittedly, the petitioner has an alternate remedy by way of an appeal before the Appellate Commissioner under Section 107 of the CGST Act, 2007. Therefore, this writ petition cannot be entertained ignoring the statutory dispensation.

33. Therefore, these writ petitions filed under Article 226 of the Constitution are liable to be dismissed. I am therefore inclined to dismiss the present writ petitions. I however give liberty to the petitioner to file a statutory appeal before the Appellate Commissioner within a period of thirty days from the date of receipt of copy of this order. If such an appeal is filed within such time, the appeal shall be numbered and taken up for hearing on its turn.

34. These writ petitions stand dismissed with the above observations. No costs. Consequently, connected miscellaneous petitions are closed.

Posted on: 16/06/2022

Hon'ble Madras High Court in the case of Tvl. GK Digital Printing Vs Assistant Commissioner (Circle) and Suguna Cutpiece Center Vs. The Appellate Deputy Commissioner (ST) (GST) and another, in W.P.No.25048 of 2021 etc. batch, vide order dated 31.01.2022, 

Wherein, considering the revenue of the Government, certain reliefs were granted to the petitioners therein. 

Accordingly, The petitioners are directed to file their returns for the period prior to the cancellation of registration, if such returns have not been already filed, together with tax defaulted which has not been paid prior to cancellation along with interest for such belated payment of tax and fine and fee fixed for belated filing of returns for the defaulted period under the provisions of the Act, within a period of forty five (45) days from the date of receipt of a copy of this order, if it has not been already paid. 

It is made clear that such payment of Tax, Interest, fine / fee and etc. shall not be allowed to be made or adjusted from and out of any Input Tax Credit which may be lying unutilized or unclaimed in the hands of these petitioners.

Posted on: 16/06/2022

Hon'ble Allahabad  High Court in the case of Bharath Mint and Allied Chemicals Vs Commissioner of Commercial Taxes and Two Other- 2022 TMI- , vide order dated 09.03.2022, 

Article 226 of the Constitution of India confers very vide powers on High Courts to issue writs but this power is discretionary and the High Court may refuse to exercise the discretion if it is satisfied that the

aggrieved person has adequate or suitable remedy elsewhere. It is a rule of discretion and not rule of compulsion or the rule of law. Even though there may be an alternative remedy, yet the High Court may entertain a writ petition depending upon facts of each case. It is neither possible nor desirable to lay down inflexible rule to be applied rigidly for entertaining a writ petition. Some exceptions to the rule of alternative remedy as settled by Hon'ble Supreme Court are as under:-

(i) Where there is complete lack of jurisdiction in the officer or authority to take the action or to pass the order impugned.

(ii) Where vires of an Act, Rules, Notification or any of its provisions has been challenged.

(iii) Where an order prejudicial to the writ petitioner has been passed in total violation of principles of natural justice.

(iv) Where enforcement of any fundamental right is sought by the petitioner.

(v) Where procedure required for decision has not been adopted.

(vi) Where Tax is levied without authority of law.

(vii) Where decision is an abuse of process of law.

(viii) Where palpable injustice shall be caused to the petitioner, if he is forced to adopt remedies under the statute for enforcement of any fundamental rights guaranteed under the Constitution of India.

(ix) Where a decision or policy decision has already been taken by the Government rendering the

remedy of appeal to be an empty formality or futile attempt.

(x) Where there is no factual dispute but merely a pure question of law or interpretation is involved.

(xi) Where show cause notice has been issued with preconceived or premeditated or closed mind.

16. The above principles are supported by the law laid down by 

Hon'ble Supreme Court in the case of 

Himmatlal Harilal Mehta v. State of Madhya Pradesh, AIR 1954 SC 403, 

Collector of Customs v. Ramchand Sobhraj Wadhwani, AIR 1961 SC 1506,

Collector Of Customs & Excise ,Cochin & Ors. vs A. S. Bava, AIR 1968 SC 13,

Dr. Smt. Kuntesh Gupta vs Management Of Hindu Kanya Mahavidyalaya, L.K. Verma v. HMT Ltd. and anr., (2006) 2 SCC 269, Paras 13 and 20, 

M.P. State Agro Industries Development Corpn. Ltd. & Anr. vs. Jahan Khan (2007) 10 SCC 88 para 12, Dhampur Sugar Mills Ltd. v. State of U.P. and others (2007) 8 SCC 338, BCPP

Mazdoor Sangh Vs. NTPC (2007) 14 SCC 234 (para 19), 

Rajasthan State Electricity Board v. Union of India, (2008) 5 SCC 632 (para 3),

Mumtaz Post Graduate Degree College Vs. University of Lucknow, (2009) 2 SCC 630 (para 22 and 23), 

Godrej Sara Lee Limited v.Assistant Commissioner (AA), (2009) 14 SCC 338. 14, 

Union of India v. Mangal Textile Mills (I) (P) Ltd., (2010) 14 SCC 553 (paras 6,7,10 and 12), 

Union of India v. Tantia Construction (P) Ltd., (2011) 5 SCC 697,

Southern Electricity Supply Co. of Orissa Ltd. v. Sri Seetaram Rice Mill, (2012) 2 SCC 108 (paras 79,80,81,82,86,87 and 88),

State of M.P. Vs. Sanjay Nagaich (2013) 7 SCC 25 (para 34,35,38,39),

State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499 (para 11 to 19), 

Star Paper Mills Ltd. Vs. State of U.P. and others, JT (2006) 12 SC 92, 

State of Tripura vs. Manoranjan Chakraborty, (2001) 10 SCC 740 para 4; 

Paradip Port Trust vs Sales Tax Officer and Ors. (1998) 4 SCC 90, 

Feldohf Auto & Gas Industries Ltd. Vs. Union of India (1998) 9 SCC 710; 

Isha Beebi Vs. Tax Recovery Officer (1976) 1 SCC 70 (para 5); 

Whirlpool Corporation Vs. Registrar of Trademarks (1998) 8 SCC 1; 

Guruvayur Devasworn Managing Committee Vs C.K. Rajan (2003) 7 SCC 546 (para 67, 68), 

Oryx Fisheries Pvt. Ltd. Vs. Union of India & Others (2010)13 SCC 427 (Paras 27 to 38),

Mangilal Vs. State of M.P. (1994) 4 SCC 564 (Para 6), 

Siemens Ltd. VS. State of Maharashtra (2006) 12 SCC 33 (para 9 & 11),

Kaikhosrou (Chick) Kavasji Framji of Indian Inhabitant Vs. Union of India (2019) 20 SCC 705 (para 59) and 

Judgments of this Court in 

Writ Tax No. 255 of 2012 (M/s Shree Bhawani Paper Mills Ltd. Vs. State Of U.P. and Another) decided on 10.09.2015, 

M/s. Rapti Commissions Agency Vs. Union of India (2010) 1 AllLJ. 710 :(2009) 244 ELT 8 and

Oudh Sugar Mill Vs. State of U.P. (2015) 3 AllLJ 774 (para 27).

For all the reasons aforestated, the impugned order dated 9.11.2021 under Section 74 of the Act for the tax period April (year 2019-20) can not be sustained and is hereby quashed.

Posted on: 15/11/2022

Hon’ble Patna High Court in the case of M/s. Aajay Kumar singh Vs State of Bihar (High Court of Patna)  Civil Writ:3878 of 2022

 we form an opinion

that the order is bad in law. This we say so, for two reasons- (a) violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case; (b) order passed ex parte in nature, does not assign any reasons sufficient even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences. We also find the authorities not to have adjudicated the matter on the attending facts and circumstances. All issues of fact and law ought to have been dealt with, even if the proceedings were to be ex parte in nature.

As such, on this short ground alone, we dispose of the present writ petition in the following mutually agreeable terms:

(e) We also direct for de-freezing/de-attaching of the bank account(s) of the writ-petitioner, if attached in reference to the proceedings, subject matter of present petition. This shall be done immediately;

(g) The Assessing Authority shall decide the case on merits after complying with the principles of natural justice; 

(h) Opportunity of hearing shall be afforded to the parties to place on record all essential documents and materials, if so required and desired;

(i) During pendency of the case, no coercive steps shall be taken against the petitioner.

(j) The Assessing Authority shall pass a fresh order only after affording adequate opportunity to all concerned, including the writ petitioner;

(k) Petitioner through learned counsel undertakes to fully cooperate in such proceedings and not take unnecessary adjournment;

(l) The Assessing Authority shall decide the case on merits expeditiously, preferably within a period of two months from the date of appearance of the petitioner;

(m) The Assessing Authority shall pass a speaking order assigning reasons, copy whereof shall be supplied to the parties;

(n) Liberty reserved to the petitioner to challenge the order, if required and desired;

(o) Equally, liberty reserved to the parties to take recourse to such other remedies as are otherwise available in accordance with law;

(p) We are hopeful that as and when petitioner takes recourse to such remedies, before the appropriate forum, the same shall be dealt with, in accordance with law, with a reasonable dispatch;

(q) We have not expressed any opinion on merits and all issues are left open;

Posted on: 15/11/2022

Hon'ble Madras  High Court in the case of  Sri Gayathri Agencies Vs State Tax Officer in vide order W.P.No.5750 of 2023 and W.M.P. No.5747 of 2023

(i) Section 75(4) of the GST Act 2017 makes it clear that in cases, where an adverse decision is taken by the Assessing Officer against the assessee, personal hearing is mandatory. Admittedly, in the assessment proceedings, pertaining to the assessment year 2017-18, no personal hearing was afforded to the petitioner. This being the case, on the ground of violation of principles of natural justice as the impugned assessment order has been passed contrary to Section 75(4) of the GST Act 2017, which mandates personal hearing, the impugned assessment order dated 31.10.2022, pertaining to the assessment year 2017-18 has to be quashed and the matter has to be remanded back to the respondent for fresh consideration, on merits and in accordance with law.

For the foregoing reasons, the impugned assessment order dated 31.10.2022 passed in respect of the assessment year 2017-18 is hereby quashed and the matter is remanded back to the respondent for fresh consideration, on merits and in accordance with law. The respondent shall pass final orders, after adhering to the principles of natural justice, including granting the petitioner the right of personal hearing.

Posted on: 18/03/2023

Hon'ble Orissa  High Court in the case of  Ranjan Nayak Vs Joint Commissioner of CT & GST  in vide order W.P.No.10203 of 2023.

The short ground on which the Petitioner is seeking the setting aside of the order dated 7th April, 2022 passed by the Joint Commissioner of CT & GST is that the appellate authority rejected the appeal as the pre-deposit of 10% of admitted tax amount was debited through the Electronic Credit Ledger (ECL)

instead of Electronic Cash Ledger. 

It is seen that by circular dated 6th July 2022 issued by the GST Policy Wing, Central Board of Indirect Taxes and Customs, Department of Revenue, Ministry of Finance, Government of India, it has been clarified that payment of pre-deposit can be made by using the ECL. 

In that view of the matter, the impugned order dated 7th April, 2022 is set aside. As the learned counsel for the Petitioner points out that the Petitioner has already made the pre-deposit using the ECL, that

will now be accepted by the Department. 

Posted on: 28/08/2023

Hon'ble Bombay High Court in the case of  Oasis Reality Vs Union of India   in vide order W.P.No.23507 of 2022.

That the respondent relied upon an order of the High Court of Orissa at Cuttack in M/s Jyoti Construction Vs. Deputy Commissioner of CT & GST 1 to submit that the amount in the credit ledger cannot be used to pay the 10% required to be paid under Sub-section (6) of Section 107 of the MGST Act.

 In our view it will not be necessary to discuss the said order because subsequent to the said order the Central Board of Indirect Taxes and Customs, GST Policy Wing, Department of Revenue, Ministry of Finance, Government of India (CBIT&C) has, in exercise of its powers conferred by Section 168(1) of the Central Goods and Services Tax Act, 2017, issued clarification in the form of a circular. This clarification came to be issued in view of various representations that CBIT&C received on utilisation of the amounts available in the Electronic Credit Ledger and the Electronic Cash Ledger for payment of tax and other liabilities. 

The CBIT&C, in its circular F. No.CBIC-20001/2/2022-GST dated 6th July 2022 Point No.6 has clarified as under:-

Utilisation of the amounts available in the electronic credit ledger and the electronic cash ledger for payment of tax and other liabilities

4. Accordingly, it is clarified that any payment towards output tax, whether self-assessed in the return or payable as a consequence of any proceeding instituted under the provisions of GST Laws, can be made by utilization of the amount available in the electronic credit ledger of a registered person.

5. It is further reiterated that as output tax does not include tax payable under reverse charge mechanism, implying thereby that the electronic credit ledger cannot be used for making payment of any tax which is payable under reverse charge mechanism.

Accordingly the impugned Order-in-Appeal No.JC/APP-V/GSTDefective/ A.F.Y/2021-22/A.O.Y..2022-23/-B-1 dated 6th April, 2022 and FORM GST APL-02 passed by Respondent No.2 is quashed and set aside. The Appeal is restored to file on the undertaking of Petitioner that it shall debit the Electronic Credit Ledger within one week of this order getting uploaded towards this 10% payable under Section 107(6)(b), if not already debited, is accepted.

Posted on: 28/08/2023

Hon’ble The Patna high court has slapped a cost of Rs 5,000 on a Goods and Services Tax (GST) officer for “forcible and illegal recovery” of cent per cent tax amount from a person waiting to avail the statutory remedy of appeal before GST tribunal which has not been made functional in Bihar.

division bench of Chief Justice K Vinod Chandran and Justice Rajiv Roy passed the order on Thursday while allowing the writ application filed by National Insurance Company, Patna regional office. The court directed the state commercial taxes department to make a refund of the entire tax amount recovered forcefully within two weeks.

Due to the absence of a GST tribunal in Bihar, the aggrieved assessees, through judicial orders, have been given liberty by the high court to pay 20% of the total assessed amount as a bonafide gesture of preferring appeal before the GST tribunal which would be pressed no sooner the tribunal starts functioning.

Petitioner’s counsel submitted to the court that the assistant commissioner of Patliputra circle of commercial taxes department passed an assessment order of Rs 52 crore on February 17, 2022. A first appeal was preferred against excess assessment before the appellate authority. The appeal was, however, dismissed September 21, 2022. Since the forum of the GST appellate tribunal is not available, the petitioner company deposited 20% of the assessed amount, as provided by the GST law, for contemplating an appeal before GST tribunal once it starts functioning in Bihar. 

Although the said statutory deposit of 20% of tax amount was accepted by the department, a new demand notice was issued for recovery of the entire balance of assessed amount in January last year. 

The counsel told the court that when his client preferred this writ application against a fresh demand notice, the department, in retaliation, recovered the entire balance amount of about Rs 42 crore by threatening to take coercive steps

Posted on: 05/03/2024

Hon'ble The Hon’ble Madras High Court in the case of Samadhu Medicals vs Deputy State Tax Officer [W.P No. 35228 of 2023 dated December 18, 2023] disposed of the writ petition thereby directing the Revenue Department to hear the appeal to be filed by the Assessee, without insisting upon the aspect of limitation as the Petitioner was not in a position to know about the proceedings initiated against them and the consequential orders passed due to the death of persons having access to the communication with the Revenue Department.

Facts:

The Revenue Department (“the Respondent”) initiated proceedings against the Samadhu Medicals (“the Petitioner”) due to mismatch in Input Tax Credit (“ITC”) between the GSTR-3B return and GSTR-2A statement for the Assessment Year (“AY”) 2019-2020 vide order dated April 12, 2023 (“the Impugned Order”)passed under Section 73 of the Central Goods and Services Tax Act, 2017 (“the CGST Act”).

Aggrieved by the Impugned Order, the Petitioner filed a writ petition before the Hon’ble Madras High Court contending that, the Petitioner was not aware of the proceedings initiated against him as the person who are in possession of mobile number and Email ID provided on the GST Portal for communication i.e. the Petitioner staff member and the GST Consultant died.

Issue:

Whether the Petitioner should be granted leave to file appeal without insisting upon the aspect of limitation when the Petitioner was not in a position to know about the proceedings initiated against them and consequential orders passed due to the death of persons having access to the communication with the Revenue Department?

Held:

The Hon’ble High Court of Madras in the case W.P No. 35228 of 2023 held as under:

• Opined that, the Petitioner was not in a position to know about the proceedings initiated against them and the consequential orders passed. Hence, the Petitioner was not able to file appropriate application and appear before the Respondent Authorities to put forth their case by way of filing reply.

• Held that, the writ petition is disposed.

• Clarified that, the Petitioner has the liberty to approach the Respondent Appellate Authority by way of filing an appeal within thirty days.

• Directed that, the Respondent Appellate Authority should entertain the appeal if filed by the Petitioner without insisting upon the limitation aspect, in accordance with the law.

Posted on: 05/03/2024