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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 285 on arbitrary attachment without tangible material

GST update No 285 on arbitrary attachment without tangible material
It is very well-known fact that law prescribed in the statue books and law in its practical application is very different. The revenue authorities often exercise their discretionary powers without adhering to the stipulations stated in the Statue which have far-reaching consequences. At times, due to irrational exercise of powers, the assessees are left with no other option but to knock the doors of courts. Apex Court in the case of RADHA KRISHNA INDUSTRIES V/S STATE OF H.P. has held that the provisions contained in section 83 of the CGST Act, 2017 can be invoked only if it is pre-judicial to the interest of revenue. On similar lines, issue regarding validity of the attachment was challenged before hon’ble Allahabad High Court in the case of VARUN GUPTA V/S UNION OF INDIA. The decision delivered in this case is subject matter of discussion of our present update.
The petitioner is a proprietorship firm that is engaged in manufacturing of plastic granules and its compounding. The bank account of the petitioner was attached in accordance with the Section 83 of CGST Act, 2017. The revenue authorities passed the attachment order and directed the bank that no operations shall be made by the department without taking any permission in this respect. It was submitted by the petitioner that as on the date of attachment no proceedings under Section 74 of CGST Act, 2017 was initiated. This was further admitted by the counsel of revenue as well.
The Court placed reliance on the decision of Apex Court in the case of RADHA KRISHNA INDUSTRIES V/S STATE OF HIMACHAL PRADESH AND OTHERS wherein it was concluded that provisional attachment can be done only in cases where it is necessary to protect the interest of revenue. Further, there should be existence of reason to believe and thus the formation of opinion must be based on strong tangible material. Moreover, the Court referred to the amended provisions of Section 83 of the CGST Act, 2017wherein following are essential ingredients to invoke the said Section:
• Commissioner is of the opinion that attachment of property is required
• Purpose of attachment is to protect the interest of revenue
• It is necessary to invoke the provision
• The order is passed in writing
• The proceedings under section 74 of CGST Act, 2017 have been initiated against the assessee.
Therefore, it was held that each of the above stated components are integral and vital to exercise the power of attachment. The statue has not left it upto the Commissioner to form an opinion as per his discretion. The formed opinion must bear a nexus with protection of interest of revenue. Further, it was held that the attachment is not to be undertaken merely because it is expedient to do so but because it is necessary to do so, without which the basic intention of legislature will be defeated. Hence, there should be existence of tangible material and the above stated components must be applied strictly before initiation of any action under section 83. In the present case, there is absence of these ingredients. Hence, the impugned order is quashed. Further, the revenue authorities while passing the orders neither recorded their opinions nor referred any to any tangible material. Hence, it was concluded that the attachment order is passed in an arbitrary and illegal manner which consequently disregarded the provisions of Section 83 of the Act. Reference was also drawn to the decision of Apex Court in PUNJAB STATE POWER CORPORATION LTD. V/S ATMA SINGH GREWAL wherein it was stated that when the discretionary power is exercised in arbitrary manner, the cost should be imposed on the officers concerned. Hence, a cost of Rs. 50,000 was imposed on the respondent in the present case.
The above decision is silver lining in the clouds for the trade and industry. The legislature in its wisdom has provided a shield in form of safeguards as a pre-condition for invoking drastic powers of attachment which is also backed by various Judicial Precedents. Reference may be made to the decision rendered by the hon’ble Gujarat High Court in the case of VALERIUS INDUSTRIES V/S UNION OF INDIA, PATRAN STEEL ROLLING MILL COMMR OF STATE TAX. The CBIC also issued guidelines in this regard vide Circular No. 20/16/05/2021-GST/359 dated 23.02.2021. Further, it is pertinent tomention here that there had been various amendments vide Finance Act, 2021, in the provisions of Section 83 wherein the first and foremost change was the word “pendency” of proceedings shall be replaced by “initiation” of proceedings. Hence, from the above discussion it is crystal clear that draconian powers like these should be invoked only after exercising due-diligence and should be subject to judicial review if challenged on the grounds of arbitrariness. On the other hand, the revenue authorities should also follow these binding pronouncements to avoid any unnecessary litigations.
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