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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 310 on detention order passed beyond prescribed time

GST Update No 310 on detention order passed beyond prescribed time
The disputes regarding detention and seizure of vehicle and goods have its tentacles since inception of GST regime which remains unresolved till date. Time and again the revenue authorities intercept and detains the goods on flimsy grounds without following the proper procedure in accordance with Law. This increases the adversity of taxpayers manifold and on the other hand demonstrates the lacuna on the part of adjudicating authorities. Recently, one such case was reported before Madras High Court in the case of A.IRUDAYARAJU V/S THE STATE TAX OFFICER. The decision imparted in this case is subject matter of discussion of our present update.
The petitioner challenged the detention order dated 11.08.2022 and order demanding tax and penalty was passed as on 13.09.2022. The goods were transported and intercepted as on 01.08.2022. The statements of drivers were recorder in MOV-01 on same day and thereafter, MOV-02 being order of physical verification was also issued on 01.08.2022. The petitioner submitted that no permission was sought and received in MOV-03 regarding extension of 3 days for issuance of order in MOV-02. Further, no detention order was passed within prescribed time under Section 129 of the Act and neither show cause notice was issued. The petitioner placed reliance on decision of this court in the case of D.K. ENTERPRISES V/S THE ASSISTANT/DEPUTY COMMISSIONER. Further reference was also drawn to the statutory timeline under Section 129 of CGST Act, 2017. It was the duty of the adjudicating authority to look into the matter which was however, not done.
The Counsel for revenue argued that the show cause notice dated 16.08.2022 was challenged in the court earlier as well. It was stated that the petitioner is at liberty to file reply to the show cause notice. It was therefore, submitted that since the petitioner is permitted to file the reply, the question of delay is already acknowledged and condoned by the Court. Therefore, the order is perfectly proper.The court referred to the decision of same court in the case of D.K. Enterprises V/s The Assistant/Deputy Commissioner and another wherein the timeline of events was stipulated commencing from the date of order of penalty. It was stated that it becomes necessary for the authority to pass an order of detention. However, presently, neither order was passed nor any show cause notice was issued in time. The date of interception is 01.08.2022, date of order is 11.08.2022 and date of show cause notice is 16.08.2022. The timelines as prescribed under Section 129 of the Act have vitiated the proceedings. The Court further submitted that there is no merit in the submissions of the revenue department. Therefore, it indicates the lacuna on the part of department in adhering to the statutory and stipulated timelines. The Writ Petition is therefore allowed.
The above decision is yet another example wherein the Courts have put a step ahead and acted as a protective shield for the taxpayers against the improper procedure followed by the departmental authorities resulting in hampering of business activities. The had been plethora of cases in the past as well wherein the Courts have highlighted the importance of following proper and legal adjudicating procedure. It is high time that judicial rulings like these should be followed unconditionally by the departmental officers to avoid any further litigations and disputes, thus wasting the time of Courts.
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