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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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GST UPDATE ON WHETHER POWER OF ARREST CAN BE INVOKED WITHOUT COMPLETION OF ASSESSMENT? 160/2020-21

GST UPDATE ON WHETHER POWER OF ARREST CAN BE INVOKED WITHOUT COMPLETION OF ASSESSMENT? 160/2020-21
GST UPDATE ON WHETHER POWER OF ARREST CAN BE INVOKED WITHOUT COMPLETION OF ASSESSMENT?
 
The prosecution and arrest provisions in GST regime are very stringent and common question that arises in mind of assessee is that whether the power of arrest can be invoked even if the liability has not been determined and adjudicated? This issue was recently raised before the Hon’ble Gujarat High Court in the case of VIMAL YASHWANTGIRI GOSWAMI VERSUS STATE OF GUJARAT which is the subject matter of discussion of our present update./
The petitioner contended that the authorities cannot arrest any person without determining or assessing the tax liability. The petitioner placed heavy reliance on the decision given by the Hon’ble Delhi High Court in the case of MAKE MY TRIP (INDIA) PVT. LTD. VERSUS UNION OF INDIA [2016 (44) S.T.R. 481 (DEL).] and Madras High Court in the case of M/s JAYACHANDRAN ALLOYS PVT. LTD. It is pertinent to mention that the two High Courts relied on the decision of the Supreme Court in the case of D.K. Basu Vs State of West Bengal reported as [1997 (1) SCC 416].
The petitioner contended that in order to invoke arrest provisions under section 69 of the CGST Act, 2017 read with section 132 of the CGST Act, 2017, twin conditions need to be satisfied cumulatively, i.e., the Commissioner has reasons to believe that a person has committed the specified offence and demand is determined against the person. Reliance was also placed on decision given by Gujarat High Court in the case of Desai Brothers Vs DCIT and Sheth Brothers Vs JCIT which held that belief must be honest and not mere suspicion or guess work. It was contended that “reason to believe” is very much different from “reason to suspect”. Reliance was placed on the Apex Court decision in the case of GKN Driveshafts (India) Ltd. Vs ITO [259 ITR 19 (SC)]. The petitioner pleaded that the power to punish is to be exercised only after determination of demand as the provisions of section 69 & 132 of the CGST Act, 2017 use the word “commits”.  Reliance was also placed on decision given by Hon’ble Punjab & Haryana High Court in the case of Akhil Krishan Magu Vs Deputy Director, Directorate General of GST Intelligence reported as [2019 (111) taxmann.com 367 (P&H)] andSukhdeep Singh Bhoday Vs Joint Director General of Foreign Trade and others.
The petitioner relied upon the decision of Madras High Court in the case of Jaychandran Alloys Private Ltd. to submit that if the respondents are permitted to exercise the power of arrest without there being any adjudication as provided under the scheme of CGST Act, the safeguards as enshrined under the Constitution of India and Article 22 which pertains to arrest and Article 21 which mandates that no person shall be deprived of his life and liberty before the authority of law, would be violated. The petitioner contended that provisions of CGST Act determine civil liability of the assessee and fastening of criminal liability has to be in conjunction with that of civil liability as no prosecution is prescribed if evasion of tax is below Rs. One Crore. Reliance was also placed on decision given in the case of G. L. Didvania and another Vs Income Tax Officer and another [2016 SCC ONLINE GUJARAT 8893] to support their contention that in order to invoke powers of arrest, adjudication is pre-requisite. Similarly, reliance was also placed on the decision given in the case of Mahadev Enterprise Vs State of Gujarat and State of Punjab Vs Barkatram [1962 (3) SCR 338].
The revenue authorities contended that the division bench of Telangana High Court has held that prosecution can be launched even before completion of assessment.
After considering the submissions, as regards the question of reasonable belief of the Commissioner for exercising power of arrest, the Hon’ble High Court held that as per provisions of section 69 read with section 132 of the CGST Act, the existence of relevant material is a pre-condition to the formation of opinion of arrest and the opinion formed cannot be on imaginary ground. Reliance was placed on the Apex Court decision given in the case of Sheonath Singh [AIR 1971 SC 2451], Barium Chemicals Ltd. Vs Company Law Board [AIR 1967 SC 295], Income Tax Officer, Calcutta and Ors. Vs Lakhmani Mewal Das [AIR 1976 SC 1753], Bhikhubhai Vithalabhai Patel, Smt. S.R. Venkatraman Vs Union of India [1979 ILLJ 25 (SC)] and ITO Calcutta Vs Lakhmani Mewal Das [1976 (103) ITR 437 (SC)] to analyse the meaning of “has reason to belief”.
The hon’ble High Court further held that the order authorising any officer to arrest may be justified if the Commissioner or any other authority empowered in law has reasons to believe that the person concerned has committed the offence under section 132 of the Act. However, the subjective satisfaction should be based on some credible materials or information and also should be supported by supervening factor. The power conferred by the authority under section 69 of the Act for the arrest is very drastic and far reaching so it should be used sparingly and only on substantive weighty grounds and reasons.
The Hon’ble High Court analysed the provisions of section 69 and 132 and held that section 69 is independent of section 132 of the CGST Act, 2017. It was held that reference of section 132 is merely to differentiate between cognizable non-bailable offences and non-cognizable bailable offences. As such, if Commissioner has reason to belief that the person is liable to be arrested, he can arrest even without adjudication or determination of tax liability. Reliance was placed on the Supreme Court decision in the case of Radheshyam Kejriwal Vs State of West Bengal and another [2011 (3) SCC 581] wherein it was held that adjudication proceedings and criminal proceedings can be initiated simultaneously and for initiating criminal proceedings, one does not have to wait for the outcome of the adjudication proceedings as the two proceedings are independent in nature.
 
This decision is dealt with this issue in depth and clearly held that “reason to belief” is very important term. If the officer has reason to believe that the person should be arrested then he can do so even if the demand is not determined or adjudication process has not been finalised. Let us hope that this elaborate decision will certainly settle all the controversies around this issue.        

This is solely for educational purpose.

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