Goods and Service Tax (GST) Weekly Flashback for the period 5 to 11 January 2025.
Table of Contents
Supreme Court
GST Dept. Files Review Petition On Safari Retreats Ruling Before Supreme Court, A Move To Substantiate Retrospective Amendment Proposed By GST Council As Constitutional
The GST department has filed the review petition on the Safari Retreats Ruling after deciding to amend the provisions and correct the ‘plant and machinery’ in the 55th GST Council meeting. It may be a strategy to substantiate the retrospective amendment proposed by the GST council as constitutional.
Supreme Court Stays GST Show Cause Notices Against Online Gaming Companies
Case Title: Directorate General of Goods and Services Tax Intelligence (HQS) and Ors v. Gameskraft Technologies Pvt Ltd.
The Supreme Court has stayed the GST show cause notices against online gaming companies.
The bench of Justice J B Pardiwala and Justice R Mahadevan while passing the interim order of stay on show cause notices in the e-gaming retrospective taxation case until the matter is finally settled.
Delhi High Court
Delhi High Court Condones Delay In Filing Certified Copy Of GST Order Extending Benefit Of Online Filing Subject To Payment Of Rs. 25,000
Case Title: Chegg India Pvt Ltd Versus Union Of India & Ors.
The Delhi High Court condoned delay in filing certified copy of GST order extending benefit of online filing subject to payment of Rs. 25,000.
The bench Justice Prathiba M. Singh Justice and Justice Amit Sharma has observed that merely because the physical submission of the appeal and the order was much later, when the online filing was within the prescribed time, cannot deprive the Petitioner of hearing on merits. In most Courts and Tribunals, online filing and electronic filing is now prescribed mode and the Courts are moving towards technologically advanced systems. It would be retrograde to opine that online filing, which was complete in all respects, including electronic copy of the order, is not valid filing.
Bombay High Court
Partial Relief To Vedanta: Bombay High Court Stays Circular Imposing GST On Providing A Corporate Guarantee To A Subsidiary
Case Title: Vedanta Limited Versus The Union of India & Ors.
The Bombay High Court has stayed the circular dated 27th October 2023 which imposed GST on the holding company for providing a corporate guarantee to a subsidiary.
The bench of Justice B. P. Colabawalla and Justice Firdosh P. Pooniwalla has observed that the petitioner, Vedanta sought the declaration that the activity of a holding company providing a corporate guarantee to a subsidiary is not in the nature of “supply” and/or “supply of service” taxable under Section 9 of the CGST Act.
Madras High Court
Dept. To Publish GST Notice In Newspaper, If Service Is Not Completed Via Email/Post: Madras High Court
Case Title: Udumalpet Sarvodaya Sangham Versus The Authority
The Madras High Court has held that the department should publish GST notice in newspapers, if service is not completed via registered email/post.
The bench of Justice K.Kumaresh Babu has observed that Section 169 of the GST Act mandated a notice in person or by registered post or to the registered e-mail ID alternatively and on a failure or impracticability of adopting any of the aforesaid modes, then the State can, in addition, make a publication of such notices/ summons/ orders in the portal/ newspaper through the concerned officials.
Central Tax Commissioner Not Proper Officer To Investigate GST Evasion: Karnataka High Court Quashes GST SCN
Case Title: M/S. Vigneshwara Transport Company Versus Additional Commissioner Of Central Tax
The Karnataka High Court has held that the central tax commissioner is not a proper officer to investigate GST evasion and has quashed the show cause notice issued under Section 74 of the CGST Act.
The bench of Justice M.I.Arun has observed that it is only a proper Officer who can investigate into evasion of GST and inspection, search and seizure and arrest can be done only by the proper Officer failing which the same will have to be held invalid.
Section 129(3) Of GST Act | Madras High Court Quashes Detention Order Passed Beyond Time Limit
Case Title: Madhesh @ Madesan Versus The State Tax Officer
The Madras High Court quashes the detention order passed under Section 129(3) Of GST Act passed beyond the time limit.
The bench of Justice Mohammed Shaffiq has observed that in terms of Sub Section (3) to Section 129 order of detention in GST MOV-9 ought to have been made within seven days from the date of the issuance of show cause notice. The failure to adhere to the timelines stipulated in Section 129(3) of the GST Act, would result in vitiating the proceedings.
Gujarat High Court
GIDC Lease Land Sale Not Subject To GST : Gujarat High Court [Read Full Order]
The Gujarat High Court has held that Gujarat Industrial Development Corporation (GIDC) lease land sale is not subject to GST.
The bench of Justice Bhargav D. Karia and Justice Niral R. Mehta has observed that assignment by sale and transfer of leasehold rights of the plot of land allotted by GIDC to the lessee in favour of third party-assignee for a consideration shall be assignment/sale/ transfer of benefits arising out of “immovable property” by the lessee-assignor in favour of third party-assignee who would become lessee of GIDC in place of original allottee-lessee.
Jammu and Kashmir And Ladakh High Court
Technical Glitch In GST Portal : Jammu & Kashmir And Ladakh High Court Permits Assessee To Apply For Login ID & Password & File Appeal In Amnesty
Case Title: Career Kashmir Consultancy Versus Union Territory Of J And K And Ors.
The Jammu and Kashmir And Ladakh High Court has allowed the assessee to claim new login and password on the GST Portal, provided he is willing to file the appeal.
The bench of Justice Rajnesh Oswal and Justice Mohd. Yousuf Wani disposed of the present writ petition by permitting the petitioner to apply afresh with the department within the period of 15 days for issuance of login ID and password and after the same is granted, the petitioner shall be at liberty to prefer an appeal within 15 days and in the event, such appeal is filed, the respondents shall consider the same in accordance within law.
Andhra Pradesh High Court
Andhra Pradesh High Court Quashes GST Assessment Orders Citing Absence Of AO’s Signature And DIN Number
Case Title: Sd Exports Versus The State Of Andhra Pradesh and Others
The Andhra Pradesh High Court has quashed the GST assessment orders citing absence of the signature of Assessing Officer and non-mentioning of the DIN number in the assessment order.
The bench of Justice R Raghunandan Rao and Justice Maheswara Rao Kuncheam has set aside the assessment orders in Form GST DRC-0 issued by the department, with liberty to conduct fresh assessment, after giving notice and by assigning a signature to the orders.
Principle Of Unjust Enrichment Does Not Apply To Refund Of Electronic Cash Ledger : Andhra Pradesh High Court
Case Title: Shapoorji Pallonji And Company Private Limited Versus Union Of India and Others
The Andhra Pradesh High Court has held that the principle of unjust enrichment does not apply to refund of electronic cash ledger.
The bench of Justice R Raghunandan Rao and Justice Maheswara Rao Kuncheam has observed that the order of the Appellate Authority, is in a manner of speaking, superseded by the circular, issued by the Central Board of Indirect Taxes and Customs, dated 17.11.2021, bearing Circular No.166/22/2021-GST, by which refund of TDS/TCS amounts deposited in the electronic cash ledger is permissible, in accordance with the proviso to sub-section (1) of section 54, read with sub- section (6) of section 49 of CGST Act.
Telangana High Court
GST Council Recommendation Not A Precondition For Issuing S. 168A Notification: Telangana High Court
Case Title: M/s.Brunda Infra Pvt. Limited and Others. vs. The Additional Commissioner of Central Tax
The Telangana High Court has held that the existence of GST Council recommendation is not a precondition for issuing Notification under Section 168A of the GST Act.
The bench of Justice Sujoy Paul and Justice G. Radharani has held that the notification issued by the Central Board Of Indirect Taxes and Customs (CBIC) extends Show Cause Notice deadlines for tax recovery.
CESTAT
Manufacturing Of Cut And Polished Diamonds Done In Pre-GST Era And But Exported In Post-GST Era: CESTAT Allows Service Tax Refund
Case Title: M/s. Sheetal Manufacturing Company Pvt. Ltd. Versus Assistant Commissioner of CGST
The Mumbai bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has allowed the service tax refund on input services, in pre- GST era on manufacturing of ‘cut and polished diamonds’ which were exported post commencement of GST regime.
The bench of Suvendu Kumar Pati (Judicial Member) has observed that since the Commissioner (Appeals) was supposed to pass his order in accordance to Section 35A(4) of the Central Excise Act, 1944, equally applicable to Service Tax matters, in view of operation of Section 85(5) of the Finance Act, 1994 and as no other ground or reason is cited by the Commissioner (Appeals) for refusal of refund, which Appellant is entitled to get the refund as sought under the existing law.
AAAR
Food Supply To Patients By Service Provider In Hospital Is Not A Composite Supply Included In Health Care Services: AAR
Applicant’s Name: BAMAPADA JANA
The West Bengal Authority of Advance Ruling (AAR) has held that supply made by the service provider to the Central Hospital is a standalone service of supply of food and in no way can be considered as a composite supply of health care services.
The bench of Dr Tanisha Dutta and Joyjit Banik has observed that the Central Hospital, being a clinical establishment, provides food to the in-patients. Such food has been outsourced by the Hospital from the applicant. Therefore, food supplied to the in-patients as advised by the doctor/nutritionists constitutes a part of the composite supply of health care services in the hand of the Central Hospital itself. Supply made by the applicant to the Central Hospital is a standalone service of supply of food and in no way can be considered as a composite supply of health care services.
No GST On Supplies Made For Rejuvenating Lamphelpat Waterbody To Alleviate Urban Flooding: AAR
Applicant’s Name: Reach Dredging Limited
The West Bengal Authority of Advance Ruling (AAR) has held that no GST is payable on supplies made for rejuvenating Lamphelpat waterbody to alleviate urban flooding.
ITC Not Available On Services Of Agreeing To Surrender Right On Leasehold Property : AAAR Relies On Safari Retreat Judgement
The Gujarat Appellate Authority of Advance Ruling (AAAR) has ruled that Input Tax Credit (ITC) is not available on services provided in the form of agreeing to surrender right on leasehold property.
18% GST On Suzlon’s Specially Designed Transformers For Wind Operated Electricity Generators : AAAR
Appellant Name: M/s. Suzlon Energy Ltd.
The Gujarat Appellate Authority of Advance Ruling (AAAR) has ruled that 18% Goods and Service Tax (GST) is payable on specially designed Transformers for Wind Operated Electricity Generators which are meant to perform dual function of Step Down and Step Up manufactured by Suzlon.
The bench of Rajeev Topno and B V Siva Naga Kumari has reject the appeal filed by the appellant Suzlon Energy and upheld the ruling of the Authority of Advance Ruling (AAR) by which it was held that the specially designed transformers for WOG, which perform dual function of step down and step up, supplied by the appellant-assessee is not a part of Wind Operated Electricity Generators (WOEG) and hence it would not be eligible for the benefit of Sr. No. 234 and Sr. No. 201A of exemption notification No. 1/2017- CT (Rate), as amended.
GST ITC Not Available On Services Procured By Port For Operation And Maintenance Of Diving Support Vehicle : AAAR
Appellant Name: The Assistant Commissioner, Central GST & Excise, Division I (M/s. Sikka Ports & Terminals Ltd)
The Gujarat Appellate Authority of Advance Ruling (AAAR) has ruled that Input Tax Credit (ITC) is not available on services procured by port for operation and maintenance of diving support vehicles (DSV).
The bench of Rajeev Topno and B V Siva Naga Kumari has allowed the application of department against the of the Authority of Advance Ruling (AAR) by which it was held that M/s Sikka is entitled to avail ITC on the services procured for the Operation and maintenance of DSVs: Relsagar & Reldarshan. M/s Sikka is entitled to avail ITC on the services procured for the Operation and maintenance of SPVs: Eagle, Chetak, Calypso fortune & ML Noorani.
Emcure Not Liable To Pay GST On Free Bus Transportation Facility Provided To Its Employees, Affirms AAAR
Appellant Name: The Assistant Commissioner, CGST, Ahmedabad North (M/s. Emcure Pharmaceuticals Ltd)
The Gujarat Appellate Authority of Advance Ruling (AAAR) has ruled that Emcure is not liable to pay GST on the free bus transportation facility provided to its employees.
The bench of Rajeev Topno and B V Siva Naga Kumari has reject the appeal filed by the department and upheld the ruling of the Authority of Advance Ruling (AAR) by which it was held that GST, at the hands of M/s Emcure, is not leviable on the amount representing the employees portion of canteen charges, which is collected by M/s Emcure and paid to the Canteen service provider. GST, at the hands of M/s Emcure, is not eligible for free bus transportation facility provided to its employees. ITC on GST paid on canteen facility is blocked credit under Section 17 (5)(b)(i) CGST Act and inadmissible to M/s Emcure. ITC on GST paid on hiring of Bus, having approved seating capacity of more than 13 persons used for transportation of passengers, is admissible.
Aorom Herbal Smokes Not Medicinal Cigarettes, Attracts 28% GST : AAAR
Appellant Name: M/s. Aorom Herbotech
The Gujarat Appellate Authority of Advance Ruling (AAAR) has ruled that Aorom Herbal Smokes is not Medicinal Cigarettes and attracts 28% GST.
The bench of Rajeev Topno and B V Siva Naga Kumari has reject the appeal filed by the appellant and upheld the ruling of the Authority of Advance Ruling (AAR) by which it was held that 28% GST on supply along with Compensation Cess of ₹ 4006 per thousand.
