Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
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.  

Comments

Print   |    |  Comment

GST Update on whether amendment in writ petition permissible after the trial has commenced? 151/2020-21

GST Update on whether amendment in writ petition permissible after the trial has commenced? 151/2020-21
 
GST Update on whether amendment in writ petition permissible after the trial has commenced?
 
It is settled principle of law that the petitioner can take additional grounds only with the permission of the appellate authority wherein there is discretion as regards allowing admissibility of additional evidence/grounds only if there was sufficient cause for not taking those grounds earlier by the petitioner. Recently, the Hon’ble Sikkim High Court dismissed the “I.A.” (Interitum Application) filed by M/s SUN PHARMA LABORATORITES LIMITED VERSUS UNION OF INDIA & OTHERS on the grounds that the there is no justification for raising additional grounds after the main writ petition was finally heard. The decision rendered by the Hon’ble Sikkim High Court is the subject matter of consideration of our present update.
 
The petitioner, at the outset, filed main writ petition for granting them refund of entire CGST and 50% IGST paid through electronic cash ledger in view of Budgetary Support Scheme introduced vide notification no. 21/2017-CE dated 18.07.2017 which was in lieu of area based exemption granted in Central Excise Laws for North-Eastern States. However, since the issue regarding grant of benefit on the grounds of principle of promissory estoppel filed before Supreme Court was decided against the petitioner, they sought to make amendments in their writ petition by challenging the vires of proviso to section 174(2)(c) of the CGST Act, 2017 and notification no. 21/2017-CE dated 18.07.2017  as unconstitutional being contrary to Article 14 of the Constitution of India.
 
The hon’ble High Court held that as per Order VI Rule 17 of the CPC, the Court has powers to allow either party to alter or amend their pleadings at any stage of proceedings on such terms as may be just. It requires that all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties provided that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. However, in the present case, the writ petition was finally heard on 03.09.2019 and judgment reserved.
 
By the proposed amendments the Petitioner seeks to challenge the vires of Section 174(2)(c) of the Central Goods and Services Tax Act, 2017 and Notification No.21/2017-C.E., dated 18-07-2017, on the ground that it takes away the vested rights of the Petitioner by reducing the exemption/benefits to the Petitioner. The prayers in the Writ Petition are confined to enabling the Petitioner to claim full refund of the CGST and 50% of the IGST paid through the electronic cash ledger. It cannot be said that the Petitioner was unaware of the provision of the statute the vires of which they now seek to assail, nor was it inserted at some point later in time to the filing of the Writ Petition. The question of the Petitioner’s inability to raise the matter in spite of due diligence, before the matter was heard or was taken up for hearing, therefore, does not arise. In view of the questions involved in the instant Writ Petition it cannot be said that the amendments are necessary for determining the real question in controversy between the parties considering the prayers of the Petitioner referred above. The proposed amendments if permitted would in fact change the very nature and character of the Writ Petition and introduce an entirely different Cause of action, which is not permissible. Hence, the I.A. to the writ petition was dismissed.
 
The above decision indicates that it is not easy to take additional grounds for writ petition filed before the High Court, specially when final hearing of main writ petition has already been convened. Hence, the petitioners should be careful while drafting their grounds of writ petition so that unnecessary efforts of filing I.A. are avoided.
 
This is solely for educational purpose.
You can reach us at  www.capradeepjain.com   , at our facebook page on  https://www.facebook.com/GSTTODAYBYPRADEEPJAIN/   as well as follow us on twitter at  https://www.twitter.com/@capradeepjain21   and u may also follow us on Linkedin  https://www.linkedin.com/in/ca-pradeep-jain-b6a31a16 
GST Update on whether amendment in writ petition permissible after the trial has commenced?
 
It is settled principle of law that the petitioner can take additional grounds only with the permission of the appellate authority wherein there is discretion as regards allowing admissibility of additional evidence/grounds only if there was sufficient cause for not taking those grounds earlier by the petitioner. Recently, the Hon’ble Sikkim High Court dismissed the “I.A.” (Interitum Application) filed by M/s SUN PHARMA LABORATORITES LIMITED VERSUS UNION OF INDIA & OTHERS on the grounds that the there is no justification for raising additional grounds after the main writ petition was finally heard. The decision rendered by the Hon’ble Sikkim High Court is the subject matter of consideration of our present update.
 
The petitioner, at the outset, filed main writ petition for granting them refund of entire CGST and 50% IGST paid through electronic cash ledger in view of Budgetary Support Scheme introduced vide notification no. 21/2017-CE dated 18.07.2017 which was in lieu of area based exemption granted in Central Excise Laws for North-Eastern States. However, since the issue regarding grant of benefit on the grounds of principle of promissory estoppel filed before Supreme Court was decided against the petitioner, they sought to make amendments in their writ petition by challenging the vires of proviso to section 174(2)(c) of the CGST Act, 2017 and notification no. 21/2017-CE dated 18.07.2017  as unconstitutional being contrary to Article 14 of the Constitution of India.
 
The hon’ble High Court held that as per Order VI Rule 17 of the CPC, the Court has powers to allow either party to alter or amend their pleadings at any stage of proceedings on such terms as may be just. It requires that all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties provided that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. However, in the present case, the writ petition was finally heard on 03.09.2019 and judgment reserved.
 
By the proposed amendments the Petitioner seeks to challenge the vires of Section 174(2)(c) of the Central Goods and Services Tax Act, 2017 and Notification No.21/2017-C.E., dated 18-07-2017, on the ground that it takes away the vested rights of the Petitioner by reducing the exemption/benefits to the Petitioner. The prayers in the Writ Petition are confined to enabling the Petitioner to claim full refund of the CGST and 50% of the IGST paid through the electronic cash ledger. It cannot be said that the Petitioner was unaware of the provision of the statute the vires of which they now seek to assail, nor was it inserted at some point later in time to the filing of the Writ Petition. The question of the Petitioner’s inability to raise the matter in spite of due diligence, before the matter was heard or was taken up for hearing, therefore, does not arise. In view of the questions involved in the instant Writ Petition it cannot be said that the amendments are necessary for determining the real question in controversy between the parties considering the prayers of the Petitioner referred above. The proposed amendments if permitted would in fact change the very nature and character of the Writ Petition and introduce an entirely different Cause of action, which is not permissible. Hence, the I.A. to the writ petition was dismissed.
 
The above decision indicates that it is not easy to take additional grounds for writ petition filed before the High Court, specially when final hearing of main writ petition has already been convened. Hence, the petitioners should be careful while drafting their grounds of writ petition so that unnecessary efforts of filing I.A. are avoided.
 
This is solely for educational purpose.
You can reach us at  www.capradeepjain.com   , at our facebook page on  https://www.facebook.com/GSTTODAYBYPRADEEPJAIN/   as well as follow us on twitter at  https://www.twitter.com/@capradeepjain21   and u may also follow us on Linkedin  https://www.linkedin.com/in/ca-pradeep-jain-b6a31a16
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com