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Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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GST UPDATE No 159 ON CHALLENGING SCN BY WRIT PETITION

GST UPDATE No 159 ON CHALLENGING SCN BY WRIT PETITION
The taxation statue prescribes a mechanism for the assessee to defend their case whenever demand is raised against them. The hierarchy of litigation in GST law is issuance of show cause notice for adjudication of the case leading to passing of order in original. Appeal may be filed before the first appellate authority, i.e., Commissioner Appeals against the order in original by the person aggrieved with the said order. The Commissioner Appeals pass Order in Appeal, deciding the appeal filed before it which can be further appealed to the Tribunal constituted under the statue. Thereafter, the appeals may be preferred to High Court and finally to the Supreme Court. Every assessee is required to pass this stipulated channel in order to get justice. Now, the question arises is whether it is permissible for the assessee to knock the doors of High Court at the show cause notice stage itself? This issue was recently dealt with by the Hon’ble Orissa High Court in the case of SRI RAJENDRA NARAYAN MOHANTY V/S CT GST CUTTACK. The analysis of this decision is the subject matter of discussion of our present update. The petitioner received TDS for the months October 2018, November 2018, January 2019, February 2019 and March 2019 for the Financial Year 2018-19. However, tax liability was not discharged by them because “NIL” liability was disclosed by the petitioner while filing GSTR-3B. The petitioner submitted that while filing Annual Return as on 20.12.2020 for FY 18-19, correct figures were disclosed by them. The petitioner contended that the proper officer restricted them from availing input tax credit from their credit ledger and submitted that instruction cannot have overriding effect over provisions of statue. Further, the petitioner contended that the proper officer has no jurisdiction to invoke provisions in the present case. Therefore, writ petition is filed in the High Court by the petitioner without filing reply to the show cause notice. The High Court held that the petitioner filed writ petition without replying to the objections raised in the show cause notice and thus, writ petition is not maintainable. Reliance was placed on the decision of Hon’ble Supreme Court in the case of UNION OF INDIA V/S COASTAL CONTAINER TRANSPORTERS ASSOCIATION wherein it was held that writ petition will not be entertained in case alternate remedy is available under statue. The Court held that the petitioner ought to have responded to the show cause notice and follow a proper channel before approaching the High Court. The petitioner during the course of hearing submitted that although input credit is utilized against payment of output tax but no interest is paid against delayed payment. The Court ordered petitioner to file reply within a period of 15 days and directed the proper officer to pass appropriate order after considering the submissions made by the petitioner. We all are aware that as the GST Appellate Tribunal has not been constituted till date, the High Courts are already flooded with petitions. Moreover, the burden of litigation in High Courts is substantial and so petitions cannot be preferred to High Courts for taxation matters wherein hierarchy of litigation is pre-defined. However, we all know that exceptions are always there and High Courts have exercised their discretionary powers many times for serving justice to the assesses. In this context, reference may be made to the Apex Court judgment rendered in the case of ASSISTANT COMMISSIONER OF STATE TAX VERSUS COMMERCIAL STEEL LTD. [2021 (52) G.S.T.L. 385 (S.C.)] wherein it has been held that the High Court has power to exercise writ jurisdiction in the following circumstances-breach of fundamental rights, violation of principles of natural justice, excess of jurisdiction or challenge to the vires of the statue or delegated legislation. The High Courts refuse to grant any relief in cases other than the exceptions as stated and directs the assessee to follow the prescribed dispute channel as prescribed in the Statue. Similarly, reference may be made to the following judicial pronouncements wherein the view of the High Court regarding dismissal of writ petition in case of availability of statutory alternate remedy was upheld:- • R.K. ANGANGBI SINGH V. COMMISSIONER – [2016 (332) E.L.T. A247 (S.C.)] • VISHNU & COMPANY PVT. LTD. V. SUPERINTENDENT – [2016 (332) E.L.T. A141 (S.C.)] • UNION OF INDIA VERSUS RUBBER PRODUCTS LTD. [2015 (326) E.L.T. 232 (S.C.)] • GENERAL CEMENT PRODUCTS LTD. V. COMMISSIONER – [2015 (323) E.L.T. A21 (S.C.)] • [SIMPLEX INFRASTRUCTURE LIMITED V. UNION OF INDIA - 2015 (321) E.L.T. A208 (S.C.)] The above decisions clearly indicate that the assessee should be cautious while filing writ petitions against show cause notice because High Courts entertain writs only if the case is covered by exceptional circumstances. Filing writ petition without filing reply to the show cause notice has the inherent risk of expiry of the time limit for filing reply. Therefore, the decision of challenging show cause notice by way of filing writ petition should be exercised judiciously.
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