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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. 304 on bail granted in case of ongoing investigation proceedings

GST Update No. 304 on bail granted in case of ongoing investigation proceedings
It is well known principle that the primary objective of bail is to secure the presence of accused at the time of trial or hearing. The action of arrest is to be taken under extreme circumstances as it restricts the freedom of the accused which is the fundamental right of any citizen. It is pertinent to note here that a person should be taken into custody only if there are reasons to believe that they might flee or tamper with the evidence. However, it seems that the revenue authorities have failed to understand this concept and hence, they are not wiling to grant bails easily to the accused. Recently, on similar note, one case was reported before Gujarat High Court in the case of MUNAVVER ISMAIL MEMON V/S STATE OF GUJARAT. The decision imparted in this case is subject matter of discussion of our present update.
The applicant was arrested as on 24.03.2022 and was produced before Metropolitan Magistrate Court on the same day. The bail application filed was rejected vide orders dated 20.06.2022 and 20.07.2022. Being aggrieved by the same, this Writ application is filed. The applicant is proprietor engaged in the business of cosmetic items. The firm was under investigation based on the intelligence reports stating that the applicant was involved in tax evasion activities. It was stated that goods were supplied without issuance of invoice since a software was created by the applicant which was used for tax evasion and showcasing less sales. Further, the applicant has made unaccounted sales and kaccha invoices which were not included in the accounts. It was therefore, alleged that loss of Rs. 10.94 crores were made to the Government Exchequer.
The petitioner submitted that there is no corroborative evidence found during the course of search and therefore the allegations are based on just entries which are made on assumptions and presumptions. Further, the applicant is regular taxpayer and return filer. Therefore, transaction related to sales and purchase are uploaded on the portal. Hence, the custody of applicant is not necessary. It was argued that no show cause notice under Section 61, 73 or 74 have been issued and the applicant is wiling to deposit 10% of the amount within a period of 6 months from date of release before department. It was further argued thatconstitutional right of liberty must be protected, unless further custody of the applicant is necessary as the basic jurisprudence of bail is that bail is a rule and jail is an exception.
The counsel of respondent contended that the applicant has acted contrary to the provisions of the Act. Thus, investigation is going on and therefore, if the applicant is released on bail, the investigation would adversely affect and considering the background facts of the applicant since he can temper with the evidence and influence the witnesses.
The court refereed to the judgement delivered by the Apex Court in the case of P. CHIDAMBARAM VS. DIRECTORATE OF ENFORCEMENT, (2020) 13 SCC 791. Further, it was stated that merely raising the contention that investigation is still going on is not enough. The department should have pointed out that the further custody of the applicant is necessary. It is the right of the assessee to file an appeal against the assessment subject to the pre-deposit amount. Therefore, it was decided to release the applicant on bail subject to certain conditions and on execution of personal bond.
The above decision is a favouring decision for the trade and industry. The Court adopted a liberal approach and granted relief to the taxpayer after acknowledging the repercussions faced by the business houses. It is pertinent to note here that powers of arrest should not be invoked by the departmental officers in routine matter without having any reason to believe that the taxpayer would abscond. Merely having vague belief cannot be considered as a valid ground to compromise with the constitutional right of freedom of any person. The Government should come up with a set of guidelines in this respect to save trade and industry from the wrath of tax officers.
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