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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 186 on validity of adjudication on basis of summary SCN

GST update No 186 on validity of adjudication on basis of summary SCN
It is well settled principle that the show cause notice lays the foundation for initiation of any proceedings against taxpayer and therefore, needs to be communicated effectively to the concerned taxpayers. Time and again various Courts had upheld the ideology that the “Notice is the first limb of the adjudication proceedings and therefore, must be precise and unambiguous”, failure of which will result into violation of principles of natural justice. The revenue authorities are reluctant to make a note of this principle thereby leading to knocking the doors of the courts repeatedly. Recently, the validity of the adjudication order was challenged before hon’ble Jharkhand High Court in the case of M/S GODAVARI COMMODITIES LTD. V/S STATE OF JHARKHAND on the grounds that summary SCN was issued and no personal hearing was granted. The decision imparted is subject matter of discussion of our present update. The petitioner is engaged in trading of coal and purchases the same from various Governmental entities. The petitioner was directed to produce documents pertaining to the movement of goods relating to sale and purchase of the coal but they were unable to do so. Consequently, the petitioner was issued an intimation in DRC-01A dated 29.01.2020 directing the petitioner to make payment of tax, interest and penalty. Subsequently, a “summary of show cause notice” was issued on 14.03.2020 and a later on “summary of the Order” in Form-GST DRC-07 dated 11.09.2020 was also issued. An order sheet was issued on 14.03.2020 and thereafter straightaway order sheet was next issued on 14.08.2020. The petitioner failed to make the payment. An adjudication order was dated 11.09.2020 instead of 13.08.2020 which was communicated to the petitioner for the first time. It was further noticed that no SCN or “Summary SCN” was issued to the petitioner. Hence, the entire adjudication proceedings were being CA. PRADEEP JAIN ??www.capradeepjain.com??pradeep@capradeepjain.com??4 questioned on the grounds that sufficient opportunity was not provided to the petitioner for defending their case thereby leading to violation of the principles of natural justice. The petitioner argued that since no SCN was issued, it results into violation of principles of natural justice. Reliance was placed on the following Judicial Pronouncements: • M/s. Prime Alloys V/s. The State Tax Officer being W.P. Nos. 26250 & 26252 of 2021 and W.M.P. Nos. 27700 & 27701 of 2021 passed by the Hon’ble High Court of Judicature at Madras. • Hon’ble High Court of Judicature at Madras in the case of Akanksha Distributers Private Limited V/s. Assistant Commissioner (ST), Chennai being W.P. Nos. 22507 & 22512 of 2021 and W.M.P. Nos. 23732 of 2021. • Hon’ble High Court of Judicature at Madras in the case of Akanksha Distributers Private Limited Vs. Assistant Commissioner (ST), Chennai being W.P. Nos. 22507 & 22512 of 2021 and W.M.P. Nos. 23732 of 2021. • M/s. OCEAN SPARKLE LIMITED Vs. ASSISTANT COMMISSIONER (ST) reported in 2021- VIL-356-AP • Hon’ble Andhra Pradesh High Court in the case of KorrapathiJanardhana Naidu Vs. State of Andhra Pradesh reported in (2021) 35 TAXLOC.COM 100 (AP). • Alkem Laboratories Limited Vs. Union of India by the Hon’ble Gujarat High Court reported in 2021- VIL-120-GUJ. • Hon’ble Madras High Court in the case of B.M. Patel and Company Vs. State Tax Officer being Writ Petition No. 13652 of 2020 and WMP No. 16973 of 2020 • In the case of Enprocom Enterprises Ltd. Vs. The Assistant Commissioner of State Tax reported in 2020- VIL-25-GUJ • In the case of Enprocom Enterprises Ltd. Vs. The Assistant Commissioner of State Tax reported in 2020- VIL-25-GUJ The Counsel of the department argued that the investigation was initiated against the petitioner wherein the petitioner was directed to issue relevant documents related to movement of goods. However, the petitioner failed to furnish the same. Therefore, a summary SCN was issued. However, since it was also not replied by petitioner, adjudicating authorities CA. PRADEEP JAIN ??www.capradeepjain.com??pradeep@capradeepjain.com??5 passed adjudication order dated 13.08.2020. But there was no recording of the same in the order sheet. The Court analysed that the issue is related to the fact that the initiation of adjudication proceedings without issuance of the SCN is void ab initio and the order passed thereon is non-est in the eyes of law. Reliance was placed on the decision of Coordinate Bench of Jharkhand High Court in the case of M/S NKAS SERVICES PRIVATE LIMITED VS/. STATE OF JHARKHAND AND ORS, reported in 2021-VIL-732-Jhr. The Court opined that the said the present petition is required to be dealt in accordance with the Judgement since the procedure prescribed under GST Act is not followed by GST authorities. It was held that the manner in which the adjudication order is passed by the authorities demonstrates serious lacuna existing in the law. It was stated that the Adjudication order was passed in gross violation of the provisions of the Law and without issuance of SCN. It was held that on 14.03.2020, DRC—01 was issued without specifying any date of hearing and thereafter, on 13.08.2020, Adjudication Order was passed straightaway which showcases that the provisions of Law and principles of natural justice were being violated. Further, there was no satisfactory explanation provided for the order mentioning the date as 11.09.2020 instead of 13.08.2020. It was directed by the Court to the revenue authorities to follow proper procedures and guidelines regarding the manner of issuance of show cause notices and proceedings thereon since a huge revenue of state is also involved in the said matters. Directions were given to quash the summary orders since the summary SCN was not having ingredients of proper SCN and entire proceedings deserves to be set aside. The above decision is yet another epitome of the fact that improper issuance of Show Cause Notice can lead to quashing the entire proceedings. Recently, Department of Trade and Taxes (Delhi) has also issued Indicative Guidelines for Issuance of Show Cause Notices F. No. 1(2)/DTT/L&J/Misc./2019-20/77-79 dated 01.02.2022 which are to be strictly adhered to by the lower authorities to avoid contravention of provisions of Law. It is observed that the authorities are following wrong practices and thereby initiate proceedings on vague subject lines. Looking at the present scenario, a strict action to streamline proper adjudication process is anticipated CA. PRADEEP JAIN ??www.capradeepjain.com??pradeep@capradeepjain.com??6 from the Government’s end at the earliest possible.
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