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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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GST update No 200 on Pre-consultation show cause notice cannot be waived

GST update No 200 on Pre-consultation show cause notice cannot be waived

Show cause notice lays down the foundation of on the basis of which the adjudication proceedings are carried out and disputes are adjudicated. Time and again the Courts are flooded with plethora of cases wherein the orders of lower authorities were set aside on the ground of vaguely issued show cause notices. The intend of the Court behind this action is to ensure that the assessees are not subject to rigors of penalty provisions. Furthermore, the Board has made it mandatory to issue pre-consultation notices to the assessees wherein the amount of demand involved is above Rs. 50 Lakhs. However, it seems that the revenue authorities have filed to adopt this practice. On the similar grounds, the case travelled up to Delhi High Court in the case of M/s Gulati Enterprises V/s Central Board of Indirect Taxes and Customs Ors. The decision imparted in this respect is subject matter of present update.

 

The petitioner was issued a show cause notice alleging that there was clandestine supply of goods and therefore, tax along with penalty was demanded from the assessee. The Counsel of the petitioner argued that the show cause notice is improper on the grounds of non-issuance of pre-consultation show cause notice as per Section 74 of CGST Act, 2017. It was further argued that after introduction of GST Act, the revenue authorities mandatorily had to issue pre consultation show cause notice. Further, it was contended that on perusal of GST DRC-01A, the revenue authorities had to crystalise the amount of tax and cess component along with the period to which it pertains to and the grounds on the basis of which penalty is fastened. Unfortunately, in the present case no such pre-consultation notice was issued to the assessee.

 

The Counsel of revenue argued that when the impugned show cause notice was issued, the statutory form i.e. GST-DRC 01A was not available on the portal and therefore, it was not issued to the assessee. Further, it was argued that the authorised signatory of the petitioner gave a voluntary statement before the concerned officer which obviated the need of issuance of pre-consultation show cause notice.

 

The Court analysed the case and placed referred to the decision passed by Bench of this Court in the case of Back Office IT Solutions Pvt. Ltd. v. Union of India & Ors.- W.P. No. 5766/2019. Further, reference was made to Master Circular of Board dated 10.03.2017 in this regard. The Court held that the requirement of issuance of show cause notice is mandatory and there are no exceptions to the same. Further, it was stated that before amendment, as per Rule 142(1A) of CGST Rules, 2017, the word “Shall” depicting compulsory requirement of issuing pre-consultation show cause notice was replaced with “may” with effect from 15.10.2020. However, it was held that the impact of this amendment shall not apply to present case since the show cause notice was issued prior to 21.05.2020. It was further held that the arguments as laid down by revenue are not appropriate since the revenue authorities should have issued a manual form in case the form was not available on the web portal. Further, it was held that a voluntary statement cannot substitute the statutory notice. Reliance was placed on the decision of another Bench of the Court in the case of Omaxe New Chandigarh Developers Pvt. Ltd. V/s Union of India & Ors. [W.P. No. 12653/2019]. Therefore, it was held that the revenue has grossly erred in performing its functions.

 

The above decision is a favouring the decision imparted in uniformity with the decision of Hon’ble Gujarat High Court in the case of M/s Dharamshil Agencies V/s Union of India. Time and again the Judiciary has back-to-back quashed various notices on the grounds of improper issuance of notices which demonstrates the fact that there is zero tolerance of non-compliance of instructions issued by department itself. On the Contrary, even if the contention of revenue is accepted regarding aforesaid amendment i.e it is discretionary to issued pre-consultation show cause notice, then also the departmental authorities should interpret the word “may” as “akin to shall” and thereby issue pre-consultation show cause notices to be on a safer side. However, it is quite disheartening that the lower authorities are not discharging their duties appropriately failing which will increases the instances of unnecessary litigations manifolds and further leads to wastage of time of the department and assessees.
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