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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 336 on revocation application rejected without considering the facts is unsustainable.

GST Update No 336 on revocation application rejected without considering the facts is unsustainable.
The revenue authorities fail to take into consideration the replies of taxpayers and hence take actions against them on the basis of arbitrary grounds. Resultantly, the Courts have stepped forward in various cases and bash the tax authorities on taking such adverse actions against the assessee without affording them an opportunity of hearing. On similar parameters, one case was reported before Calcutta High Court in the case of Swarupa Ghosh V/s Assistant Commissioner of State Tax. The decision imparted in this case is subject matter of our present update.

The petitioner filed the Writ petition challenging the rejection of revocation application which were dismissed on the grounds of availability of alternate remedy. In the present case, show cause notice was issued as on 23.08.2021 to cancel the registration on the grounds that there was contravention of Section 29 of CGST Act, 2017. The reply of the same was submitted and order for cancellation was passed on 01.09.2021 which was devoid of reasons. An application of revocation was filed on 03.11.2021 and the registration was restored. The petitioner proposed to shift his place of business and hence, an application for cancellation of registration was submitted on 03.11.2021. However, the authority rejected the application by an order dated 25.11.2021 since balance sheet and profit and loss were not submitted as per the notice. On same date, another notice for cancellation of registration was issued alleging that the appellant obtained registration by means of fraud. The reply of the same was submitted on 02.12.2021 requesting to provide necessary documents to submit proper reply. Written submissions were submitted and hearing was fixed on 07.12.2021 on which the authority failed to provide any document and registration cancellation proceedings were dropped. Thereafter, second time registration cancellation application was filed. Once again, a show cause notice was issued to appellant to provide various details. The registration was cancelled as on 20.12.2021.

The appellant submitted that the cancellation order was passed in the midnight. Thereafter, another show cause notice was received on 21.12.2021 in the midnight for cancellation of GST registration which narrated that adverse report was attached. However, upon checking, no reports were attached along with the notice and were subsequently received on 28.12.2021. An e-mail was sent by petitioner at 2:47 p.m. seeking time to submit reply. The registration was cancelled without offering an opportunity of hearing as on 28.12.2021. A revocation application was filed on 17.01.2022 and a show cause notice was issued in this respect on 16.02.2022 for which detailed reply was submitted on 19.02.2022. However, the application was rejected by order dated 21.03.2022. The Single Bench dismissed the petition on the grounds of availability of alternate remedy.

The Court upon perusal of material placed before them observed that the order passed by adjudicating authority is devoid of reasons and none of the grounds raised by the petitioner were adhered to. It was narrated that it is not clear as to why department is dragging the matter unnecessarily. Even if there is any adverse material, the same should have been communicated along with the show cause notice along with providing an opportunity of hearing and passing a speaking order. The Commissioner should take a note of the way the cases are dealt with by the subordinate authorities special regarding cancellation of registration. Further, an orientation programme should also be conducted to sensitize the manner in which cases like these should be dealt with. Since the enactment in which they are functioning is totally new the officer should be trained properly and a copy of order should be placed before Commissioner as well. Since in the present case there is violation of principles of natural justice and non-speaking order is passed by the authorities, the impugned order is set aside and the matter is remanded back to the lower authorities. It had directed them to issue a proper show cause notice mentioning the allegations against the appellant and granting a period of 15 days to submit the reply.

The above decision is another example demonstrating the lack of proper training on the part of revenue officers as regards to issuance of appropriate show cause notice failing which results into quashing of entire adjudication proceedings. It is high time that the tax authorities should act judiciously and thereafter issue proper show cause notices otherwise the tussle between the department and taxpayers will continue in times to come.
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