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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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PJ/Case Law/2020-2021/3640

Whether bail application should be granted for offense of Wrongful Availment of ITC under GST?
Mohit Vijay vs. Union of India SANJEEV PRAKASH SHARMA, J. S.B. CRIMINAL MISCELLANEOUS BAIL APPLICATION NO. 7605 OF 2019 dated JUNE 2, 2020- HIGH COURT OF RAJASTHAN
Issue- Whether bail application should be granted for offense of Wrongful Availment of ITC under GST?
Brief Facts:  The bail applications have been filed under Section 439 CrPC in connection with Criminal Complaint filed at Chief Metropolitan Magistrate (Economic Offences), Jaipur (Raj.) for offence under Section 132(1)(b)(c)(f)(j) and (I) of the Central Goods and Service Tax Act, 2017
Applicant’s Contention: - Learned counsel submits that the allegation against the petitioners is of having issued invoices giving benefit to companies who availed benefit of ITC (Input Tax Credit). Learned counsel submits that no further investigation is required to be conducted as against the accused petitioners and they are in judicial custody since long. Learned counsel submits that under the CGST Act, the case is compoundable and maximum punishment which can be awarded is only five years. The petitioners have already remained in jail for the last 450 days and an investigation is in process against more than 1300 beneficiaries, which is likely to take long time. They further submit that in view of the COVID- 19 Pandemic, the petitioners be released on bail with certain conditions.
Learned counsel relies on the judgment in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in 2012 (1) SCC 40 as well as the order passed by the Coordinate Bench at Principal Seat at Jodhpur in the case of Gaurav Maheshwari Vs. State(S.B.Criminal Misc.IInd Bail Application No. 1825/2020) decided on 11.5.2020 and Gaurav Maheshwari Vs. State(S.B.Criminal Misc.Bail Application No. 1422/2020) decided on 13.5.2020 submits that the petitioner may be given the similar benefit and similar conditions may be laid down, which the petitioners will abide.

Revenue’s Contention: -  Learned counsel appearing for the Revenue strongly opposes the bail application and submits that the petitioners have committed a huge economic offence and huge amount of CGST has been evaded resulting a huge loss of revenue since fraudulent and forged invoices were issued in relation to 34 companies, petitioners created ghost companies which were fraudulent and created only for the purpose of issuing such invoices resulted in giving benefit to as many as 1878 customers in different 21 states. Learned counsel submits that out of the said customers, 321 customers are those who are residing outside Rajasthan.
 
High Court’s Observation: -High Court States that, the grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. Further, they said while keeping in view that the petitioners are already in jail for 450 days and no further investigation or recovery is to be made for the purpose of the case, even their account has also been seized Hence bail should be granted to the petitioner subject to submitting a bail bond in the sum of Rs.1,00,000/- along with one surety of the like amount subject to some conditions.
Comment:- In the past, several transactions were brought under the scanner wherein there was a supply of goods made without an actual movement of goods. This is commonly known as circular trading. If the amount involved(ITC wrongly availed) is more than 500 lakhs, then such offence is non bailable and cognizable. High Courts have stopped entertaining the writ of bail applications. The rising unemployment and shakened economy are the main reasons of increasing fraud cases. The Rajasthan High court in this case rejected the Revenue plea by saying that its courts discretion to grant bail and there is no point to refuse the bail application as investigation is already completed and accused in already in custody for more than 450 days. The Honorable High Court accepted the bail application on certain conditions and gives relief to the accused amid COVID-19 pandemic. Hence, it is evitable that fraudsters wont be spared and would be imprisoned for such serious offences.
Recently, the Punjab and Haryana High Court in the case of Akhil Krishan Maggu & Anr.(CWP No. 24195/2019), has observed that taxpayers against whom no concrete evidences are available to establish evasion of tax should not be arrested prior to determination of liability and imposition of penalty. Further, it also stated that arrest of Chartered Accountants / Advocates should not be carried out in absence of corroborative evidence linking them with the alleged offence.
Prepared by- CA Tarun Rankawat
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