Goods and Service Tax Weekly Flashback for the period 12 January 2025 to 18 January 2025.
Table of Contents
Delhi High Court
GST Notice Sent To Electricity Regulatory Commission Which Acts As ‘Tribunal’, Delhi High Court Comes To Rescue
Case Title: Central Electricity Regulatory Commission Versus The Additional Director Directorate General Of Gst Intelligence (DGGI)
The Delhi High Court has quashed the GST notice issued against the Central Electricity Regulatory Commission (CERC) and Delhi Electricity Regulatory Commission which acts as ‘tribunal’.
The bench of Justice Yashwant Varma and Justice Dharmesh Sharma has observed that the provision made in Schedule III of the GST Act clearly intended to insulate and exempt the functions discharged by a court or tribunal from the levy of a tax under the CGST.
Kerala High Court
Cross-Empowerment Of GST Officers To Function As Proper Officers Through Legislative Mandate: Kerala High Court
Case Title: Pinnacle Vehicles And Services Private Limited Versus Joint Commissioner, (Intelligence & Enforcement)
The Kerala High Court has held that cross-empowerment of GST officers to function as proper officers under the CGST Act is through the legislative mandate under Section 6(1) of the CGST Act.
The bench of Justice A.K.Jayasankaran Nambiar and Justice Easwaran S. has observed that while the statutory mandate at present is unqualified, it will be qualified in the event the Government specifies conditions for the exercise of power under the statutory mandate, pursuant to the recommendations of the Council.
Buyer To Prove Tax Payment By Supplier For Availing GST ITC: Kerala High Court Dismisses Petition Citing Single Bench Observation
Case Title: Jaison Geevarghese Oommen Versus The Assistant Commissioner
The Kerala High court has held that the burden of proof lies on the buyer to prove tax payment by the supplier for availing GST ITC (Input Tax Credit).
The bench of Justice A.K.Jayasankaran Nambiar and Justice Easwaran S. has observed that for availing input tax credit, the burden is on the assessee to prove payment of tax by the supplier of inputs by providing tax invoices etc. Therefore, necessarily, it is for the appellant to prove his claim by availing the statutory remedy available under law.
GST Dept. Failed To Prove Tax Evasion Intent Citing Delivery Note: Kerala High Court
Case Title: STATE OF KERALA Versus M/S.PROGRESS AGENCIES
The Kerala High Court has held that the Goods and Service Tax (GST) department has failed to prove tax evasion intent citing delivery note.
The bench of Justice A.K.Jayasankaran Nambiar and Easwaran S. has observed that the finding of the Appellate Tribunal is entirely on facts and was entered after the tribunal was convinced that there was no attempt at evasion of tax. The tribunal held that the enquiry authority itself has satisfied that the respondent has accounted the transaction in the books of accounts and in such circumstances there cannot be any attempt for evasion of payment of tax on part of the respondent. The alleged attempt for evasion of tax can only be in respect of value addition, that too on part of the A.H.Iqbal (in whose favour invoice was issued) and not on part of the respondent-assessee.
Allahabad High Court
Inherent Defect In Decision Making Process Can’t Be Cured By GST Dept. At Later Stage: Allahabad High Court
Case Title: M/S Akriti Food Industry LLP Versus State Of UP
The Allahabad High Court has held that inherent defects in the decision making process cannot be cured by the GST department at a later stage.
The bench of Justice Ajit Kumar has observed that as and when mandatory requirement of law is not taken care of in the matter of compliance of procedure before taking decision by assessing authority or any competent authority for that matter, then it becomes an inherent defect in the decision making process which cannot be cured at a later stage.
Excess Stock Is Found In Survey, Proceedings U/S 73 Or 74 Of GST Act Applicable: Allahabad High Court Quashes Order U/S. 130
Case Title: M/S Dee Control And Electric Private Ltd Versus Additional Commissioner Grade-2 And Another
The Allahabad High Court has held that if the excess stock is found in survey the proceedings under Section 73 or 74 of the UPGST Act will come into play rather than under Section 130 of the UPGST Act read with Rule 122 of the UPGST Rule, 2017.
The bench of Justice Piyush Agrawal has relied on the decision in the case of S/S Dinesh Kumar Pradeep Kumar Vs. Additional Commissioner Grade 2 and Another in which it was held that as per the allegations levelled against the petitioner with regard to the improper accounting of goods, the only stipulation contained in Clauses (ii) and (iv) of sub-section (1) of Section 130 can at best be invoked by the department, however, even assuming for the sake of argument, that the goods were lying in excess of the goods in record, the case against the petitioner would not fall under Clause (ii) of sub-section (1) of Section 130 for the simple reason that the liability to pay the tax arises at the time of point of supply, and not at any point earlier than that.
No Bar In Law In Issuing Two Show Cause Notices Under GST For Same Period With Different Subject Matter: Allahabad High Court
Case Title: M/S ALM Industries Limited Versus Assistant Commissioner (AE) Central Goods and Services and 2 others
The Allahabad High Court has held that no bar in law in issuing two show cause notices under GST for the same period with different subject matter.
The bench of Chief Justice Arun Bhansali and Justice Vikas Budhwar has observed that show cause notices issued to the petitioner reveals that the subject matter of both the notices is totally different from each other and, therefore, apparently there is no bar in law in issuing two show cause notices for the same period with a different/distinct subject matter and, therefore, to that extent, no interference to the show cause notice is made out.
Seizing Authority Failed To Prove Tax Evasion Intention: Allahabad High Court Quashes Detention Order
Case Title: M/S Shivaji Udhyog Versus Additional Commissioner Grade-2 Appeal-Ii And Another
The Allahabad High Court has quashed the detention order as the seizing authority failed to prove tax evasion intention.
The bench of Justice Piyush Agrawal has observed that the seizing authorities have not drawn any sample or got an expert report holding that the goods in question seized were mustard oil and no R.B. Oil as disclosed in the accompanying documents, i.e., e-tax invoice and e-way bill.
Chhattisgarh High Court
Chhattisgarh High Court Directs Govt. To Refund GST For Contracts Awarded Prior To GST Regime
Case Title: M/s B M S Projects Versus State Of Chhattisgarh
The Chhattisgarh High Court has directed the state government to refund GST for contracts awarded prior to the GST regime.
The bench of Justice Bibhu Datta Guru has disposed of the writ petition as of now stands disposed of directing the State Authorities to immediately process the claim of the petitioner so far as refund of GST is concerned, after due verification of facts and also the entitlement part of the petitioner is concerned.
Andhra Pradesh High Court
Supply Of Solar Generating Power Station Is A Composite Supply, Attracts 5% GST: Andhra Pradesh High Court
Case Title: Sterling And Wilson Private Limited Versus The Joint Commissioner and Others
The Amaravati Bench of Andhra Pradesh High Court has held that 5% GST is payable on the supply of the Solar generating Power Station, which is a composite supply and it would not amount to a works contract.
The bench of Justice R Raghunandan Rao and Justice Maheswara Rao Kuncheam has observed that the property in question, viz., the Solar Power Generating System would not answer the description of immovable property. The transaction in question would not fall within the meaning of “works contract” as defined under Section 2(119) of the GST Act.
CA Involved In Creating Fake GST Invoices: Andhra Pradesh High Court Stays ICAI Notification Removing CA’s Name From Register Of Members
Case Title: CA Akshay Jain Versus ICAI
The Andhra Pradesh High Court stayed the notification issued by the Institute of Chartered Accountants of India (ICAI) removing CA’s name from register of members who was allegedly involved in creating fake GST invoices and claiming Rs.5.08 crores as in the form of input tax credit without there being any actual supply of goods or services.
The bench of Justice Venkateswarlu Nimmagadda has observed that there shall be a stay on the publication in the Gazette of India regarding the removal of the CA’s name from the register of members. This stay is effective from today i.e., on 03.01.2025 till the date of filing an interlocutory application for interim stay along with the statutory appeal before the Appellate authority by the petitioner CA. Therefore, the petitioner, CA is at liberty to initiate a statutory appeal before the appellate authority within a period of 4 weeks.
5% GST Payable On Badam Flavoured Milk: Andhra Pradesh High Court
Case Title: M/s. Sri Vijaya Visakha Milk Producers Company Ltd. Versus Asst. Commissioner Of Central Tax and Others
The Andhra Pradesh High Court has held that 5% GST is payable on Badam Flavoured Milk.
The bench of Justice R Raghunandan Rao and Justice Maheswara Rao Kuncheam has observed that in a case where sweetened milk is to be sold, after bottling the same, it would fall within the meaning of Milk containing added sugar or other sweetening matter, under 0402 and would attract 5% GST. This drink could also be called a beverage, containing milk, falling under 2202 attracting 12% GST. The entry, in 0402, is the special entry and the entry, under 2202, is the general entry and would have to give way to entry 0402. The same principle would apply to flavoured milk.
Bombay High Court
Bombay High Court Accepts GST Officer’s Apology For Arbitrarily Arresting Alleged Tax Evader Even Before Recording Statement
Case Title: Mishal J. Shah HUF (Keeyan Enterprises) Versus State of Maharashtra & Others
The Bombay High Court has accepted the GST Officer’s apology for arbitrarily arresting alleged tax evaders even before recording statements.
The bench of Justice B. P. Colabawalla and Justice Firdosh P. Pooniwalla has observed that accepted the apology tendered by the two officers and discharged the Show Cause Notice issued to them, however cautioned the officers that in future they should be careful before any arrest is made and to follow the letter of the law before any arrest memos are issued.
Bombay High Court Quashes GST Show Cause Notice To Wrong Address
Case Title: Champions Steel Industries Private Limited Versus Union of India: Bombay High Court
The Bombay High Court quashed the GST show cause notice in the interest of justice as the department failed to show the proof of service of notice at the correct address of the petitioner and remanded the matter back to the file of the department for adjudication of the show cause notice.
The bench of Justice M. S. Sonak and Justice Jitendra Jain directed the GST department to serve further notices and correspondence to the petitioner on the address at “M/s. Champion Steel Industries (P) Ltd., A/3, Ahmedabad Street, Carnac Bunder, Mumbai – 400 009” and at the email address registered with the department.
Calcutta High Court
Appellate Authority Empowered To Condone Delays Beyond Statutory Period Under Section 107(4) of GST Act: Calcutta High Court
Case Title: M/s. Rashtriya Ispat Nigam Limited -Vs- State of West Bengal & Ors.
The Calcutta High Court has held that appellate authority is empowered to condone delays extending beyond the statutory period under Section 107(4) of the GST Act.
The bench of Justice Rajarshi Bharadwaj has observed that the appellate authority mechanically dismissed the application for condonation of delay as well as the appeal, without adequately considering the petitioner’s lack of knowledge regarding the impugned order’s issuance. Such an omission renders the appellate order perverse.
AAAR
Leasing Of E-Bikes Without Operator Is Taxable As Financial/Related Service At GST Rate Applicable To ‘Like Goods’: AAAR
Applicant’s Name: M/s True Solar Private Limited
The Odisha Bench of Appellate Authority of Advance Ruling (AAAR) has held that leasing of e-bikes without an operator is taxable as financial/related service at GST rate applicable to ‘like goods’.
The bench of M.S. Reddy and Yamini Sarangi has observed that leasing of electric vehicles (E-Bikes) without operator is classifiable under the heading 9971 ie. Financial and related services under entry Sl No. 15 (ii) of Notification No. 11/2017 CT(R) dated, 28th June, 2017 as amended vide Notification No. 20/2019 CT(R) dated, 30th September, 2019″ and the rate of tax will be the same rate as applicable on supply of like goods involving transfer of title in goods.
Bakery Manufacturing Ice Cream Is Ineligible For Composition Scheme: AAAR
Applicant’s Name : M/s Pioneer Bakers
The Odisha Appellate Authority of Advance Ruling (AAAR) has ruled that the bakery manufacturing ice cream is ineligible for the Composition Scheme.
The bench of M.S. Reddy and Yamini Sarangi has observed that the supply of the items namely chocolate, cookies which are prepared in the nearby workshop qualifies as ‘composite supply’ under Section 2(30) of the CGST Act. The said composite supply shall be deemed to be a supply of service as per the Entry 6(b) of Schedule II to the CGST Act and more specifically the ‘Restaurant Service’ and rate of tax is 5% without any input tax credit.
NEWS
Notification No. 54/2018 | IGST Refund Denial To Advance-Authorisation Holders Operates Prospectively: Surat GST Commissionerate
Case No.: Order-In-Original No.: Surat/GST/ABS/52/2024-25
The Surat GST Commissionerate has held that Denial Of Integrated Goods and Service Tax (IGST) refund to Advance-Authorisation Holders operates prospectively.
The bench of Amar Bahadur Singh (Additional Commissioner) has relied on several judgments of High Court of Gujarat and the judgment of the Kerala High Court in the case of M/s Sans laboratories Pvt. Ltd. Versus Union of India in which it was held that the Notification 54/2018 has to be applied prospectively from 09-10-2018 and not retrospectively.
Adjudication Of Multiple Show Cause Notices In GST By Single Adjudicating Authority: Kerala GST Dept.
The Kerala GST department has notified that adjudication of multiple show cause notices in GST by single adjudicating authority.
There can be situations wherein multiple taxpayers are identified to be involved with respect to a particular issue. In respect of show cause notices issued by officers of the Intelligence and Enforcement Vertical, there may be cases where the principal places of business of notices fall under the jurisdiction of multiple adjudicating authorities. There can also be situations where multiple show cause notices are issued on the same issue to different notices, having the same PAN but different GSTINs and their principal places of business fall under the jurisdiction of multiple adjudicating authorities.
Taxpayers To Withdraw Appeal Application To Be Eligible For Waiver Scheme: GSTN
The Goods and Service Tax Network (GSTN) has issued the advisory on the for Waiver Scheme under Section 128A under GST Act.
Taxpayer’s attention is invited to the advisory on the above subject issued by GSTN on 29.12.2024. Under the waiver scheme, for a demand notice or statement or order which has been issued under Section 73 for the tax periods between July 2017 & March 2020, the taxpayers are required to file an application either in FORM GST SPL-01 or SPL02 in GST portal accordingly. Presently, Form GST SPL 02 is made available in the GST portal. Form GST SPL 01 will be available soon in the GST portal.
GSTN Notifies Generation Date For Draft GSTR 2B For December 2024
The Goods and Service tax Network (GSTN) notified the generation date for draft GSTR 2B for December 2024.
In light of the extended due dates for filing GSTR-1 and GSTR-3B returns for the month of December 2024 (Quarter Oct-Dec 2024) as per Notifications No. 01/2025 and 02/2025 dated 10th January 2025, the Draft GSTR-2B for the month of December 2024 (Quarter Oct-Dec 2024) will now be generated on 16th January 2025 in accordance with the rule 60 of CGST Rules, 2017.
