Part-100-One Pager Snapshot to the Latest Cases on entitlement of ITC as per the provisions of Section 16-Part-III

-Before directing the recipient to reverse ITC, the authority ought to take action against the supplier and unless and until authority was able to bring out exceptional case as clarified in the press release issued by CBIC, straight away, authority was not justified in directing the recipient to reverse the ITC
-ITC not allowed as tax cannot be paid on invoices issued post cancellation of registration of supplier
-Time limit prescribed for claiming ITC u/s 16(4) is not violative of articles 14, 19(1)(g) and 300-A of the Constitution of India.

100.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Case Subject

Case

Held

1

Before directing
the recipient to
reverse ITC, the
authority ought to
take action
against the
supplier and
unless and until
authority was able
to bring out
exceptional case
as clarified in the
press release
issued by CBIC,
straight away,
authority was not
justified in
directing the
appellant to
reverse the ITC

Suncraft Energy
(P.) Ltd. v.
Assistant
Commissioner,
State Tax [2023]
153
taxmann.com 81
(Calcutta

The allegation against the appellant was that the supplier has not shown the Bill in GSTR 1 and hence the appellant is not eligible to avail ITC as per section
16(2). SCN did not allege that appellant was not in possession of tax invoice and that the appellant has not received the goods or services or both.
The court referred to decision of Appex Court in the matter of Union of India (UOI) v. Bharti Airtel Ltd. [2022] 4 SCC 328 wherein effect and purport of Form
GSTR-2A was explained that it is only a facilitator for taking a confirm decision while doing such self-assessment. Non-performance or non-operability of Form
GSTR-2A will be of no avail because dispensation stipulated at the relevant time obliged registered persons to submit return on the basis of such selfassessment in Form GSTR-3B manually on electronic platform. The Court relied upon Arise India Ltd. v. Commissioner of Trade and Taxes, Delhi.
The Court referring to press release dated 18-10-2018 observed that the authority had not conducted any enquiry on supplier more particularly when
clarification has been issued where furnishing of outward details in Form GSTR 1 by a corresponding supplier and the facility to view the same in Form GSTR
2A by the recipient is in the nature of tax payer facilitation and does not impact the ability of the tax payers to avail ITC on self-assessment basis in consonance
with the provisions of section 16 of the Act. Furthermore, Press release dated 4
th May 2018 was also referred wherein it was clarified that there shall not be
any automatic reversal of ITC from buyer on non-payment of tax by seller and in case of default in payment of tax by seller, recovery shall be made from seller
however, reversal of credit from buyer shall also be an option available with the revenue authorities to address exceptional situations like missing dealer,
closure of business by supplier or supplier not having adequate assets etc.
Thus, it was held that the action of the proper officer was branded as arbitrarily as it carried without resorting to any action against the supplier and ignoring
the tax invoices produced by the appellant as well as the bank statement to substantiate that they have paid the price for the goods and services rendered as
well as the tax payable there on. Therefore, before directing the appellant to reverse ITC, the authority ought to have taken action against the supplier and
unless and until authority was able to bring out exceptional case where there was collusion between appellant and supplier or where supplier was missing or
supplier had closed down its business or the supplier did not have any assets and such other contingencies, straight away the authority was not justified in
directing the appellant to reverse the ITC. Therefore, demand raised on the appellant was held not to be sustainable. The order was set aside with a direction
to first proceed against supplier and only under exceptional circumstance as clarified in press release by CBIC, proceedings be initiated against appellant.

2

ITC not allowed
as tax cannot be
paid on invoices
issued post
cancellation of
registration of
supplier

Jai Balaji Paper
Cones v.
Assistant
Commissioner
Sales Tax [2023]
152taxmann.com
690 (Madras)

The case of the petitioner is that the petitioner has paid an amount of Rs.4,14,000/- to the supplier by including the GST payable of Rs.4,14,000/- on three
invoices. It was submitted that since the petitioner has paid the tax due to the supplier on invoice dated 23.11.2018, thus they cannot be asked to pay IGST.
The court by referring to Section 16(2) (c) of CGST Act, 2017 stated that a registered person is not entitled to credit of input tax in respect of any supply of
goods or services of both, if tax is not paid to the Government. The registration of the supplier was cancelled on 31.10.2018 before three invoices dated
23.11.2018 were raised. Thus, it was clear that supplier could not have paid the tax to the ex-chequer. Therefore, it was held that there cannot be a mandamus
to the authority contrary to the provisions of the respective GST Act of 2017 and the Rules made thereunder and the petition as dismissed. It was further stated
that the petitioner was however entitled to recover the amount from the suppliers in the manner known to law.

3

Time limit
prescribed for
claiming ITC u/s
16(4) is not
violative of
articles 14,
19(1)(g) and 300-
A of the
Constitution of
India.

[2023] 152
taxmann.com
640 (Andhra
Pradesh)
Thirumalakonda
Plywoods v.
Assistant
Commissioner -
State Tax

The Court observed that Section 16(2) does not appear to be a provision which allows input tax credit, rather ITC enabling provision is section 16(1). On the
other hand, section 16(2) restricts the credit which was otherwise allowed to only such cases where conditions prescribed in it were satisfied. Therefore, section
16(2) in terms only override the provision which enabled the ITC i.e., section 16(1). This is evident from the manner in which Section 16(2) is couched. The non
obstante clause in section 16(2) is followed by a negative sentence "no registered person shall be entitled to the credit of any input tax in respect of any supply
of goods or services or both to him unless". This negative sentence pellucidly tells that unless the conditions mentioned in section 16(2) are satisfied, no credit
will be eligible. This stipulation manifests that section 16(2) is not an enabling provision but a restricting provision. What it restricts is the eligibility which was
otherwise given U/s 16(1). Hence unless such clear inconsistency is established, overriding effect cannot be given over other provisions. In the present case
both Section 16(2) and (4) are two different restricting provisions, the former providing eligibility conditions and the later imposing time limit. Further, influence
of a non obstante clause has to be considered on the basis of the context also in which it is used. Therefore, section 16(4) being a non-contradictory provision
and capable of clear interpretation, will not be overridden by non obstante provision u/s 16(2). Thus, in substance it was held that section 16(1) is an enabling
clause for ITC; 16(2) subjects such entitlement to certain conditions; section 16(3) and (4) further restrict the entitlement given u/s 16(1). That being the scheme
of the provision, it is out of context to contend that one of the restricting provisions overrides other two restrictions. Another way of looking it was that if really
legislature had no intention to impose time limit, there was no necessity to insert Section16(4) and to further intend to override it through section 16(2).
The Court further observed that mere filing of the return with a delay fee will not act as a springboard for claiming ITC and referred to the argument by learned
Advocate General wherein it was stated that collection of late fee is only for the purpose of admitting the returns for verification of taxable turnover of the
petitioner but not for consideration of ITC. Such a statutory limitation cannot be stifled by collecting late fee.
The Court observed that ITC being a concession, the legislature is within its competency to impose certain conditions, including time prescription for availing
such right. Thus, time limit prescribed for claiming ITC u/s 16(4) is not violative of articles 14, 19(1)(g) and 300-A of the Constitution of India


Part-99-One Pager Snapshot to the Latest Cases on entitlement of ITC as per the provisions of Section 16-Part-II

-Merely on the ground that in Form GSTR-2A the tax is not reflected, should not be a sufficient ground to deny the claim of ITC.

-Section 16(4) is constitutionally valid and is not violative of Articles 19(1)(g) and Article 300-A of the Constitution of India and is not inconsistent with or in derogation of any of the fundamental right guaranteed under the Constitution of India.

-Claim of Input Tax Credit raised by the petitioner cannot be sustained when the supplying/selling dealer has not paid up the amounts to the Government; despite collection of tax from the purchasing dealer.

99.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Case Subject

Case

Held

1

Merely on the ground
that in Form GSTR-2A
the tax is not reflected,
should not be a
sufficient ground to
deny the claim of ITC.

Diya Agencies v.
State Tax Officer
[2023] 154
taxmann.com 421
(Kerala)

The Court had observed that if supplier has not remitted the amount paid by the petitioner to him, the petitioner cannot be held responsible. Whether
the petitioner has paid the tax amount and the transactions between the petitioner and seller dealer are genuine are the matter on facts and evidence.
The petitioner must discharge the burden of proof regarding the remittance of tax to the seller dealer by giving evidence as mentioned in the Judgment
of the Supreme Court in 2023 (3) TMI 533 SC (The State of Karnataka v. M/s. Ecom Gill Coffee Trading Private Limited). If on examination of the
evidence submitted by petitioner, assessing officer is satisfied that claim is bonafide and genuine, petitioner should be given input tax credit. Merely
on the ground that in Form GSTR-2A the said tax is not reflected should not be a sufficient ground to deny the assessee the claim of input tax credit

2

Section 16(4) is
constitutionally valid
and is not violative of
Articles 19(1)(g) and
Article 300-A of the
Constitution of India
and is not inconsistent
with or in derogation of
any of the fundamental
right guaranteed under
the Constitution of
India.

Gobinda
Construction v.
Union of India [2023]
154 taxmann.com
311 (Patna)

-The Court observed that ITC is not unconditional and a registered person becomes entitled to ITC only if the requisite conditions are fulfilled and
the restrictions contemplated Section 16(2) do not apply. One of the conditions to make a registered person entitled to take ITC is prescribed Section
16(4). The right of a registered person to take ITC under Section 16(1) becomes a vested right only if the conditions to take it are fulfilled, free of
restrictions prescribed under Section 16(2).
-The Court was of the view that provision under Section 16(4) is one of the conditions which make a registered person entitled to take ITC and by no
means it can be said to be violative of Article 300-A.
-It was argued that there is absence of any rationale behind fixation of a cut-off-date for filing of return. The Court did not find any merit in the
submissions so advanced, and outrightly rejected the submission.
-It was further observed that Fiscal legislation having uniform application to all registered persons and cannot be said to be violative of Article 19(1)(g)
of the Constitution and the question of such statutory provision being violative of Article 302 of the Constitution and in teeth of Article 13 of the
Constitution of India does not arise at all. The Court further stated that the submission that the requirement of Section 16(4) being directory and not
mandatory is not at all tenable in view of the clear language used in Section 16 of the Act. The concession of ITC under Section 16(1) is dependent
upon the fulfillment of requisite conditions laid down under various provisions including sub-section (4) thereof.
-Thus, Court held that Section 16(4) is constitutionally valid and is not violative of Articles 19(1)(g) and Article 300-A of the Constitution of India. The
said provision is not inconsistent with or in derogation of any of the fundamental right guaranteed under the Constitution of India

3

Claim of Input Tax
Credit raised by the
petitioner cannot be
sustained when the
supplying/selling dealer
has not paid up the
amounts to the
Government; despite
collection of tax from
the purchasing dealer.

Aastha Enterprises
v. State of Bihar
[2023] 153
taxmann.com 491
(Patna

-The Court by observing the decision of Apex Court in the matter of The State of Karnataka v. M/s. Ecom Gill Coffee Trading Private Limited stated
that the said decision can be distinguished especially looking at section 70 of the KVAT Act and also petitioner having to produce not only the invoices
but also the account details and the documents evidencing transportation of goods. However, this did not absolve the assessee from the rigor provided
under Section 16(2)(c). This provision in effect casts a burden of proof on the purchasing dealer who claims ITC, which is a right created under statute;
sustained only under the specific terms of the statute.
-The benefit to claim ITC is one conferred by the statute and if the conditions prescribed in the statute are not complied; no benefit flows to the
claimant.
-The contention of double taxation was negated by the Court since the claim was denied only when the supplier who collected tax from the purchaser
failed to pay it to the Government.
-Further contention raised was regarding measures provided to recover the collected tax, which selling dealer failed to pay to the Government. The
mere fact that there is a mode of recovery provided under the statute would not absolve the liability of the tax payer to satisfy the entire liability to the
Government. The purchasing dealer being the person who claims ITC could only claim the benefit if the supplier who collected the tax from the
purchaser has paid it to the Government and not otherwise.
-The Government definitely could use its machinery to recover the amounts from the selling dealer and if such amounts are recovered at a later
point of time, the purchasing dealer who paid the tax to its supplier could possibly seek for refund. However, as long as tax paid by the purchaser to
the supplier, is not paid up to the Government by the supplier; the purchaser cannot raise a claim of ITC under the statute.
-When supplier fails to comply with the statutory requirement, the purchasing dealer cannot, without credit in his account claim ITC and the remedy
available to the purchasing dealer is only to proceed for recovery against the seller. Even if such recovery from the supplier is affected by the purchasing
dealer; the State would be able to recover the tax amount collected and not paid to the exchequer, from the selling dealer since the rigor of provisions
for recovery on failure to pay up, after collecting tax, enables the Government so to do.
-Therefore, there should be credit available in the credit ledger of the purchaser to claim Input Tax and otherwise the claim would be frustrated. On
the above reasoning, it was held that the claim of ITC raised cannot be sustained when selling dealer has not paid up the amounts to the Government;
despite collection of tax from the purchasing dealer

Part-98-One Pager Snapshot to the Latest Cases on entitlement of ITC as per the provisions of Section 16 of CGST Act, 2017-Part-I

-Seller to be examined in case wherein supply of goods challenged
-Recovery to be first affected from the seller
-ITC to be given for transactions entered by the recipient before cancellation of registration of the supplier
-In absence of documents, mere reflection of credit in GST Records electronically is not sufficient.
-Section 16 to be followed strictly, substantive liability on supplier & protective liability on recipient. Mechanism to brought in place to address the same.
-SCN can be treated as a communication under Section 42(3) intimating mismatch between the ITC claimed by recipient and tax paid by the supplier
-Supporting document can be furnished in reply to the SCN that tax has been paid

98.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Case Subject

Case

Held

1

Seller to be examined
in case wherein supply
of goods challenged
Recovery to be first
affected from the seller

D.Y. Beathel
Enterprises v. State
Tax Officer (Data
Cell), Tirunelveli
[2021] 127
taxmann.com 80
(Madras)

The Court observed that if the tax had not reached the kitty of the Government, then the liability may have to be eventually borne by one party, either
the seller or the buyer. In the case on hand, Court observed that it did not appear that any recovery action has been taken against the seller. Also,
assessment of the seller was completed by excluding the subject transactions alone The Court was unable to appreciate the approach of the authorities
as when it has come out that the seller has collected tax from the purchasing dealers, the omission on the part of the seller to remit the tax in question
must have been viewed very seriously and strict action ought to have been initiated against him. Also further, apart in enquiry in question, seller ought
to have been examined and confronted, because respondent had taken a stand that the petitioners have not even received the goods and had availed
input tax credits on the strength of generated invoices. Thus, impugned orders were quashed and remitted back on account of non-examination of
seller and non-initiation of recovery action against the seller the first place.

2

ITC to be given for
transactions entered by
the recipient before
cancellation of
registration of the
supplier

LGW Industries Ltd.
v. Union of India
[2022] 134
taxmann.com 42
(Calcutta)

The writ petition was disposed of by remanding the matters to be considered afresh on the issue of their entitlement of benefit of input tax credit in
question. The authorities were directed to consider the documents which petitioners wanted to rely in support of their claim of genuineness of the
transactions in question and to consider as to whether payments on purchases in question along with GST were actually paid or not to the suppliers
(RTP) and also to consider as to whether the transactions and purchases were made before or after the cancellation of registration of the suppliers
and also consider as to compliance of statutory obligation by the petitioners in verification of identity of the suppliers (RTP). It was further directed
that if it is found upon consideing the relevant documents that all the purchases and transactions in question were genuine and supported by valid
documents and transactions in question were made before the cancellation of registration of those suppliers and after taking into consideration the
judgments of the Supreme Court and various High Courts which have been referred in this order and in that event the petitioners shall be given the
benefit of input tax credit.
Similar ratio also followed in Sanchita Kundu v. Assistant Commissioner of State Tax [2022] 142 taxmann.com 576 (Calcutta) and Gargo
Traders v. Joint Commissioner, Commercial Taxes (State Tax) [2023] 151 taxmann.com 270 (Calcutta).

3

In absence of
documents, mere
reflection of credit in
GST Records
electronically is not
sufficient.

Tvl. Ashok Trading
Co. v. State Tax
Officer, Inspection
Cell-III, Trichy [2022]
141 taxmann.com
227 (Madras)

The Court observed that the petitioner had no documents to substantiate a valid availing of input tax credit and mere reflection of the amounts in the
Goods and Service Tax records electronically is not sufficient. If credit is to be allowed and adjusted on such transactions, it would lead to unintended
benefits being conferred

4

Section 16 to be
followed strictly,
substantive liability on
supplier & protective
liability on recipient.
Mechanism to brought
in place to address the
same

Pinstar Automotive
India (P.) Ltd. v.
Additional
Commissioner
[2023] 149
taxmann.com 13
(Madras

The Court observed that the provisions of section 16 are to be observed strictly, such that, there is no jeopardy to the interests of the revenue. The
provisions of the statute has, assimilating wisdom of experience from the erstwhile tax regimes, gone one step further to ensure that the interests of
the revenue are protected by providing for a mandate that the tax liability is defrayed/met either at the hands of the supplier or the purchaser, the
petitioner in this case. Thus, no fault can be attributed to the revenue in this regard. An additional factor is that where the tax liability has been met by
way of reversal of ITC and similarly recovery is effected from the supplier as well, this would amount to a double benefit to the revenue. Thus, while
the Department may reverse credit in the hands of the purchaser, this has to be a protective move, to be reversed and credit restored if the liability is
made good by the supplier. Thus, the substantive liability falls on the supplier and the protective liability upon the purchaser. A mechanism must be
put in place to address this situation.

5

SCN can be treated as
a communication under
Section 42(3) intimating
mismatch between the
ITC claimed by
recipient and tax paid
by the supplier
Supporting document
can be furnished in
reply to the SCN that
tax has been paid

Mahendra Feeds
and Foods (Trading
Division) v. Deputy
Commissioner of
GST and Central
Excise [2022] 143
taxmann.com 248
(Madras)

It was contended by the revenue that ITC claimed by petitioner was a wrong claim because, there was a complete mismatch between the supplier
and the petitioner, as the supplier, in support of its outward tax has not paid the tax or not shown the same in their accounts, as if that they paid the
tax. It was contended on behalf of petitioner that under section 42(3) of GST Act there was an obligation on the part of Revenue to communicate to
both the supplier and recipient about mismatch of ITC. Once such a communication is issued under the rule in consonance with section 42(3), there
must be a procedure to be followed. However, since no such communication was issued and SCN was issued, which has also been responded by
the petitioner saying that the supplying dealer has paid the tax, it is a procedural violation.
The Court observed that the rectification would be possible at the hands of the petitioner who was the dealer who received the goods by way of input
supply, at least at the time of receipt of SCN issued in this regard by the Revenue. After receipt of the SCN, if at all the petitioner wanted to rectify the
mismatch, supporting documents to substantiate that output tax had been paid by the supplying dealer should have been procured and filed along
with the reply, which they failed to do. Therefore, technical reason that under section 42(3) it should have been communicated at the earliest point of
time and therefore SCN cannot be treated as communication intimating mismatch between the supplier and petitioner, cannot be countenanced

Part-97-One Pager Snapshot to the Latest Cases on Section 29, 50, 67, 75, 107, 122 and 140

-Opportunity of being heard be provided before an adverse order
-No Interest and Penalty for Transitional credit which could not have been availed due to technical glitches on portal maintained by the Government
-Appeal could not be dismissed as certified copy of order not produced
-No roving or fishing inquiries be conducted under the garb of authorisation U/Sec 67
-Opinion for cancellation of registration cannot be formed by DGGI

97.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Section

Case Subject

Case

Held

1

Section
75

Opportunity
of being
heard be
provided
before an
adverse
order

Tvl. Sree Amman
Metal Works v. State
Tax Officer
(Adjudication)-2
[2023] 154
taxmann.com 496
(Madras)

Petitioner challenged the impugned orders, apart from questioning them on merits, because of the objections filed by the petitioner were not taken
note of by the respondent and non-speaking orders was passed.
The Court observed that reading of the impugned orders did not imply the reasoning of the authority concerned. That apart, though adverse orders
were being passed against the petitioner, no opportunity of personal hearing was afforded to him, which was contemplated under section 75(4) of
the Central Goods and Services Act, 2017. Therefore, on this limited ground, without addressing the merits of the case, the Court allowed Writ
Petitions and set aside the impugned orders and remitted the matter back to the respondent

2

Section
140

No Interest
and Penalty
for
Transitional
credit which
could not
have been
availed due
to technical
glitches on
portal
maintained
by the
Government

Nithya Packaging (P.)
Ltd. v. Assistant
Commissioner of GST
and Central Excise
[2023] 154
taxmann.com 494
(Madras)

Petitioner faced difficulty in transitioning ITC on capital goods and communicated with Department and officials named on Web Portal. However,
he was unable to transfer the transitional credit. Thereafter, petitioner decided to avail such Credit. The credit was confirmed by Sanction Order
(Tran-1 Credit) dated 20-2-2023. Meanwhile, proceedings were initiated to recover the amounts from the petitioner, which culminated in the
impugned order. By the impugned order dated 28-3-2023, officer had imposed penalty and interest on the petitioner under section 50 and Section
73(9) read with Section 122(2)(a). The impugned order was passed as petitioner filed a revised return in terms of the decision of Bombay High Court
in Chep India Private Limited v. Union of India and others dated 27-6-2022 and decision of the Hon'ble Supreme Court in Union of India and
another v. FILCO Trade Centre Private Limited dated 22-7-2022, claiming ITC, which was earlier sanctioned by the Sanction Order (Tran-1 Credit)
dated 20-2-2023. The only point that arose for consideration was whether petitioner could be mulcted with interest and penalty even though the
credit which was taken was sanctioned and merely because the petitioner had also filed returns to transition the same credit.
The Court observed that petitioner was entitled to Rs. 11,06,396/- on the eve of implementation of GST with effect from 1-7-2017 and by Sanction
Order (Tran-1 Credit) dated 20-2-2023, proper officer had confirmed that petitioner was entitled to the aforesaid transitional credit. Therefore, merely
because petitioner had filed subsequent return and had given up the same would not mean that petitioner could be subjected to pay interest and
penalty. The difficulty arose only on account of technical glitches in the web portal maintained by the Central Government at the time of
implementation of GST. The petitioner cannot be penalized as the credit itself was allowed after the implementation of GST by Sanction Order (Tran1 Credit) dated 20-2-2023. Therefore, order seeking to impose interest and penalty on the petitioner was held to be unsustainable and thus quasshed

3

Section
107

Appeal could
not be
dismissed as
certified
copy of order
not produced

KPMG India (P.) Ltd.
v. Joint Commissioner
of State Tax (Appeals)
[2023] 154
taxmann.com 492
(Punjab & Haryana)

Petitioner contended that they had filed appeal along with digitally uploaded order on the common portal and hence, appeal could not be dismissed
on the ground that certified copy was not attached with the appeal.
The Court observed that since uploaded copy was already part of the appeal, it would amount to substantial compliance of Rule 108 and Joint
Commissioner would not dismiss the appeal by impugned order on the ground that appellant had not submitted certified copy of order impugned
therein. Since fact was further clarified by notification dated 25-1-2023 whereby it has been clarified if an order against which appeal has been filed
is uploaded on common portal, then final acknowledgement shall be considered as date of filing of the appeal. The writ petition was thus allowed

4

Section 67

No roving or
fishing
inquiries be
conducted
under the
garb of
authorisation
U/Sec 67

Bhagat Ram Om
Prakash Agro (P.) Ltd.
v. Commissioner of
Central Tax, GST
[2023] 154
taxmann.com 491
(Delhi)

Petitioner contended that the search authorisation was illegal as the same was issued without proper officer having any reason to believe that
conditions as specified under Section 67(1) of CGST Act, 2017. Petitioner stated that search was conducted in view of directions issued by the
Special Judge (P.C. Act) to Income Tax Department, GST Department, and Enforcement Directorate to check source of Rs. 50,00,000/- received
by petitioners. Petitioner no.2 purchased a property from one Mr. Rajesh Kumar Anand for a sum of Rs. 50,00,000/-. Mr. Rajesh Kumar Anand had
deposited the said consideration in a fixed deposit receipt which was offered as a collateral for securing the bail of Sh. Kapil Wadhawan and others.
The Court issued notice to the revenue but at the same time observed that they had serious reservations whether any such roving and fishing
inquiry under the CGST Act, 2017 could have been directed to be conducted by the Special Judge. Further, the proper officer can authorise the
search only if the conditions specified in Section 67 of the Act are fulfilled.

5

Section
29

Opinion for
cancellation
of
registration
cannot be
formed by
DGGI

Muhammad Salmanul
Faris k v.
Superintendent,
CGST & Central
Excise [2023] 154
taxmann.com 414
(Kerala)

Deputy Director, DGGI, Kochi Zonal Unit has requested the Range Officer, Ottapalam to cancel GST registration of the petitioner and petitioner
was given a personal hearing by the proper officer on 27-3-2023. However, petitioner did not appear on the said date and new date was fixed on
19-4-2023. The petitioner did not appear for the said hearing on 19-4-2023 and therefore, impugned order for cancellation of the GST registration
of petitioner was passed. The petitioner contended that when DGGI Cochin Unit has already taken a decision and directed for cancellation of the
GST registration of the petitioner, the competent authority could not have taken a decision contrary to the said direction issued by the higher authority.
The Court observed that considering the aforesaid submissions, there was no denial of fact that the DGGI, Kochi Zonal Unit has already taken the
decision for cancelling the GST registration of the petitioner and the proper officer was only required to form the formalities and could not have taken
an independent decision. Therefore, the impugned order was set aside and remanded back for decision on merits. However, the said order was not
revived further for a period of one month

Part-96-One Pager Snapshot to the Latest Cases on Section 67,73,107 and 129 of CGST Act, 2017

-Issue of prohibitory order under Section 67(2) not a stop gap arrangement to decide whether to seize goods or not
-Notice issued after six months from date of prohibition not invalid but goods to be returned in view of Section 67(7)
-Order passed without recording contentions and without discussion on the issues raised by Petitioner quashed
-SCN Issued without containing any reason for the allegations made
-Circular No. 76 Dated 31st Dec’ 18 to be considered while deciding levy of penalty U/Sec 129(1)(a)/(b)
-Failure to consider submissions of the petitioner by the proper officer and the appellate authority

96.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Section

Case Subject

Case

Held

1

Section
67

Issue of prohibitory
order under
Section 67(2) not a
stop gap
arrangement to
decide whether to
seize goods or not
Notice issued after
six months from
date of prohibition
not invalid but
goods to be
returned in view of
Section 67(7)

Best Crop
Science (P.)
Ltd. v.
Superintendent,
CGST [2023]
154
taxmann.com
476 (Delhi)

The Court considered Section 110 of Customs Act which it held to pari-materia to Section 67 of CGST Act, 2017. It further observed that action for
seizure of the goods is required to be predicated on a reason to believe that the goods are liable for confiscation. This condition was required to be
satisfied, before passing any order under the proviso to Section 67(2) of the CGST. The first proviso to Section 67(2) permits to pass an order
prohibiting tax payer from parting with the goods in cases where goods were liable for seizure, but is not practicable to do so. Order of prohibition is
not a stop gap arrangement for the department to take an informed decision whether to seize goods or not seize goods.
Further regarding provision of Section 67(7) wherein concerned authorities are required to return the seized goods if a notice is not issued within
a period of six months; high court stated that the contention that the although goods are required to be returned but order of prohibition can continue
indefinitely was held to be militating against the scheme of Section 67 of the CGST Act.
However, for the contention that the impugned show cause notice was liable to be set aside because it was not issued within the period of six
months from the date of the order of prohibition was held to be unmerited. The consequence of Sub-section (2) of Section 67 of the CGST Act merely
provides that if no notice is issued within the stipulated period, the goods seized were liable to be returned. It did not postulate that the notice, issued
after six months, was invalid. Thus, petitioner's challenge to the impugned show cause notice on the ground that it was issued after six months of the
order of prohibition was rejected.

2

Section
73

Order passed
without recording
contentions and
without discussion
on the issues
raised by Petitioner
quashed

Savvy Fabrics
v. Union of India
[2023] 154
taxmann.com
451 (Bombay)

Petitioner contended that the impugned order was illegal, inasmuch as, although a detailed reply to the show cause notice was submitted by the
Petitioner as also a personal hearing was granted to the Petitioner, the impugned order did not record any reasons/findings regarding such contentions
as urged by the Petitioner. It was further stated that there was no invocation of Section 122 in SCN regarding penalty.
The Court observed that in the impugned order, in the paragraph titled "findings", none of the contentions as urged by the Petitioner were recorded
as also there was no discussion whatsoever on the issues as raised by the Petitioner. This more particularly, when the impugned order raises a
demand against the Petitioner on interest payable under section 50(3) as also a penalty being imposed under section 122 of the CGST/SGST Act,
2017 read with Section 73(9). Thus, impugned order was quashed with liberty to issue fresh SCN

3

Section
29

SCN Issued
without containing
any reason for the
allegations made

Rahul Kumar
Jain v. Union of
India [2023] 154
taxmann.com
450 (Delhi)

SCN merely alleged that petitioner's GST registration was proposed to be cancelled on account of fraud, wilful misstatement or suppression of facts;
however, it did not provide any specific reason and it did not provide any clue as to the facts which were allegedly suppressed. Petitioner responded
by denying the allegations and also asked why and on what grounds, department alleged that they have taken registration by means of fraud, wilful
misstatements or suppression of facts so that they can submit defence and detailed reply in this regard.
The Court observed that it was evident that petitioner had no clue as to why its GST registration was sought to be cancelled and petitioner's request
for providing further specific grounds was not acceded to and no further information was provided to the petitioner. Thus, impugned order was quashed
being devoid of any reason as it only reiterated that it was order for cancellation of registration in reference to the SCN

4

Section
129

Circular No. 76
Dated 31st Dec’ 18
to be considered
while deciding levy
of penalty U/Sec
129(1)(a)/(b)

Western Carrier
India Ltd. v.
State of U.P.
[2023] 154
taxmann.com
449 (Allahabad)

Petitioner was aggrieved by the order whereby liability was fixed upon it to pay penalty in terms of Section 129(1)(b). It was stated that the goods
transported were accompanied by E-Way bill and invoice etc. and authorities erred in imposing penalty upon petitioner inasmuch as by virtue of
Circular No.76/50/2018 dated 31st December 2018, petitioner was liable to be treated as owner of the goods and consequently provision of section
129(1)(a) alone could have been invoked.
The Court stated that goods in transit were carrying necessary documents in the form of E-Way bill and invoice etc, therefore, department ought to
have considered the petitioner's prayer for release of goods and vehicle upon compliance of the provisions contained U/s 129 (1) (a). Thus, direction
was issued to act in terms of the Circular and release goods upon compliance of conditions stipulated U/s 129(1)(a).

5

Section 107

Failure to consider
submissions of
petitioner by proper
officer and
appellate authority

KS
Commodities
(P.) Ltd. v.
Assistant
Commissioner
[2023] 154
taxmann.com
447 (Delhi)

The petitioner filed a refund application. SCN was issued to the assessee and which was duly responded. The Adjudicating Authority considered
the reply but rejected the petitioner's application for refund, inter alia, on the ground that the petitioner was unable to co-relate the input supplies
respect of which ITC refund claim was made and the export of the commodities. The petitioner appealed against the said order, however, same was
rejected by impugned order. The petitioner contended that although required proofs were submitted but neither Order-in-Original nor the impugned
order passed by Appellate Authority discussed the material produced by the petitioner.
The Court observed that none of the said orders indicated any reason as to why authorities did not consider the said material to be relevant for
establishing that input supplies in respect of which refund was claimed, were directly corelated to export of sugar. In view of the above, impugned
order was set aside and appeal restored with Appellate Authority to examine the material relied upon and to state the reasons if he was of the view
that evidences on record cannot be corelated to the export of sugar as claimed by the petitioner

Part-95-Snapshot to the Judgment “S. Sundaram Pillai, Etc vs V.R. Pattabiraman 1985 SCR (2) 643 (SC)” for Interplay of Explanation, Proviso & meaning of term “wilful default”

Usually, Judgements of Apex Court discusses in detail about one principle in Law but sometimes, one comes across Judgement, wherein not one or two but multiple principles are explained and it’s a treat to read such Judgements. Sharing today one such judgement S. Sundaram Pillai, Etc vs V.R. Pattabiraman 1985 SCR (2) 643 (SC) which is although for Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 but explains in the most beautiful way

a) Implications of Proviso and Explanation,
b) Interplay where Provision contains both Proviso and Explanation to Proviso,
c) Meaning of Wilful, and
d) Instances which can be considered as wilful and not wilful.

It would be a treat to read the Judgement for the Sheer Principles laid down for Interpretation (even one might not be concerned with Tamil Nadu Buildings (Lease and Rent Control) Act, 1960) and my Snapshot is an attempt to summarise the Judgement..

95.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Held

1

Question of Law-The appeals involved point of law relating to the interpretation of the term 'wilful default' appearing in the proviso to section 10 (2) of the Tamil Nadu Buil dings (Lease and Rent Control)
Act, 1960 as the 'Act') coupled with the Explanation which seeks to explain the intent or the proviso

2

Provision Involved-(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing
cause against the application, is satisfied-
(i) that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in
the absence of any such agreement, by the last day of the month next following that for which the rent is payable, or..
Provided that in any case falling under clause (i) if the Controller is satisfied that the tenant's default to pay or tender rent was not willful, he may, notwithstanding anything contained in section 11, give
the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him to the landlord up to the date of such payment or tender and on such payment or tender, the application
shall be rejected.
[Explanation. - For the purpose of this sub-section, default to pay or tender rent shall be construed as willful, if the default by the tenant in the payment or tender of rent continuous after the issue of
two months' notice by the landlord claiming the rent

3

Meaning of Wilful Defauler explained -Thus, a consensus of the meaning of the words 'wilful default' appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and
conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the
rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by
other Acts referred to above.
Reference to the decision in Khivraj Chordia v. G. Maniklal Bhattad AIR 1966 Madras 67 to highlight difference between a simple default and wilful default-The decisions of this court have
reportedly pointed out that there is a clear difference in law between default and wilful default and that non-payment of rent within the time specified by the Act, though would amount to default, cannot
by itself be treated as wilful default, and that if the rent was paid after the expiry of the time in the following month within a short time thereafter, the default cannot be said to be wilful to warrant the
punishment of eviction. Keeping in mind the main object of the enactment, namely prevention of unreasonable eviction of tenants, the principle that emerges from the several decisions is that for
default to be regarded as wilful default, the conduct of the tenant should be such as to lead to the inference that his omission was a conscious violation of his obligation to pay the rent or reckless
indifference. If the default was due to accident or inadvertence or erroneous of false sense of security based upon the conduct of the landlord himself, the default cannot be said to be wilful default. It is
not possible to lay down any hard and fast rule applicable to all cases. But the basic and essential distinction between mere default and wilful default should be borne in mind and the totality and
cumulative effect of all the circumstances should be taken into account and not any particular feature of the case in isolation. In certain cases the prior conduct of the tenant consisting of chronic defaults
taken along with a totally false and reckless plea of discharge or any other wholly untenable plea may amount to wilful default. But at the same time, certain pleas raised by the tenant, but negatived by
the court on assessment of the evidence adduced by the landlord and the tenant, may constituted proof of bona fides on the part of the tenant, as to rule out any theory of wilful default.

4

How to Interpret Proviso Explained-The well established rule of interpretation of a proviso is that a proviso may have three separate functions. Normally, a proviso is meant to be an exception to
something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment In other words, a proviso cannot be torn apart from
the main enactment nor can it be used to nullify or set at naught the real object of the main enactment. In short, generally speaking, a proviso is intended to limit the enacted provision so as to except
something which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of
it so as to amount to a substantive provision itself

5

How to Interpret Explanation Explained-The object of an Explanation to a statutory provision is-(a) to explain the meaning and intendment of the Act itself,
(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so a- to make it consistent with the dominant object which it seems to subserve,
(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,
(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the
mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and
(e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in interpretation of the same

6

Reading provision of 10(2)(i)-To begin with, s. 10 (2) (i) of the Act lays down that where the Controller is satisfied that the tenant has not paid or tendered the rent within 15 days after the expiry of the
time fixed in the Agreement of tenancy or in the absence of any such Agreement, by the last date of the month next following that for which the rent is payable, he (tenant) undoubtedly commits a default.
Two factors mentioned in s.10 (2) (i) seem to give a clear notice to a tenant as to the mode of payment as also the last date by which he is legally supposed to pay the rent.

7

Combined interpretation of Explanation and Proviso-We express our view in the matter in the following terms: (1) Where no notice is given by the landlord in terms of the Explanation, the Controller,
having regard to the four conditions spelt out by us has the undoubted discretion to examine the question as to whether or not the default committed by the tenant is wilful. If he feels that any of the
conditions mentioned by us is lacking or that the default was due to some unforeseen circumstances, he may give the tenant a chance of locus paenitentiae by giving a reasonable time, which the statute
puts at 15 days, and if within that time the tenant pays the rent, the application for ejectment would have to be rejected.
(2) If the landlord chooses to give two months' notice to the tenant to clear up the dues and the tenant does not pay the dues within the stipulated time of the notice then the Controller would have no
discretion to decide the question of wilful default because such a conduct of the tenant would itself be presumed to be wilful default unless he shows that he was prevented by sufficient cause or
circumstances beyond his control in honouring the notice sent by the landlord

Part-94-Snapshot to “How and why Land and Building was included in Schedule III in GST”

5th GST Council Meeting-Agenda 2A of the Meeting
5th GST Council Meeting-Why it was advocated to bring land and building under the GST Net as part of Agenda
7th GST Council Meeting- Tax on Sale of Land and Building deferred for a year
11th GST Council Meeting-Reason behind inclusion of Land and Building in Schedule III

94.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Case

Held

1

5
th GST Council
Meeting-Agenda 2A

Para 2.2 of the Agenda stated as follows: Under the GST regime, it is proposed to subject supply of goods or services to GST. Goods have been defined under the
Constitution to include “all materials, commodities and articles”. Likewise, services have been defined under the Constitution “as anything other than goods”. Goods and
services tax have been defined in the Constitution to mean “any tax on supply of goods, or services or both except taxes on the supply of the alcoholic liquor for human
consumption”. Supply has been defined in the model GST law in the broadest possible sense and includes sale

2

5
th GST Council
Meeting-Why it was
advocated to bring land
and building under the
GST Net

Para 2.4. of the Agenda stated as follows-Thus, supply of immovable property (land and buildings) has been kept outside the purview of GST. It is felt, that this would
distort the GST particularly when there is no constitutional or legal impediment to levy GST on supply of land and building to GST due to the following reasons:
(i) Stamp duty, which is levied under Article 268, is with reference to documents and is collected by the Centre on documents listed in Entry 91 of the Union List
while by the States on documents listed in Entry 63 of the State List. Therefore, the argument that because legal conveyance of title of land and buildings
attracts stamp duty, they cannot be subjected to GST is facile because stamp duty is levied on documents while GST would be levied on the supply of land
and buildings, whether as goods or services (“aspect theory” upheld by the Supreme Court in a host of judgements). Renting/leasing of land and buildings
are subjected to service tax presently. Documents pertaining to such renting/leasing are subjected to stamp duty.
(ii) Entry 49 of the State List reads thus: - “Taxes on lands and buildings”
It is felt that this entry is not an impediment to levy of GST on supply of lands and buildings because of the “aspect theory” upheld by the Supreme Court: while the stock
of lands and buildings is subjected to tax by the States on the aspect of possessing land and buildings, the supply aspect can be subjected to GST.
(iii) ..
(iv) ..
(v) Further, though service tax and VAT are charged generally @ 4.5% and 1% of the value of the flat (which includes the value of the undivided share of land) respectively,
there are embedded taxes in the flat. The total tax incidence in respect of flats in nonmetros is more than that in metros. In fact, where the value of land is less, the
incidence of service tax and VAT is more (embedded taxes). GST on supply of land and building will equalize the tax incidence in respect of houses in metros
and non-metros.
(vi) Without levying GST on supply of land and building, it would be very difficult to complete the input tax credit chain (ITC) and allow ITC in respect of construction services
and construction material used in creation of immovable property which is further used for carrying out taxable activities. This is highly distortionary. While at the behest
of business and industry, the ITC chain would get liberalized, the tax administration would forever be saddled with non-completion of ITC chain thereby
resulting in disincentives to obtain taxable invoices for availing input tax credit. Non inclusion of land and building in GST results in cascading of taxes.
(vii) …
(viii) Land and building are not on the same footing as alcoholic liquor for human consumption as the latter is constitutionally outside the definition of goods and
services tax (para 2.2 above).

3

7
th GST Council
Meeting- Tax on Sale
of Land and Building
deferred for a year

GST Council in its 7th Meeting Concluded as follows-In view of the Discussion above for Agenda item 2A, the Council decided not to introduce GST on land and building
at this stage and agreed that this issue could be revisited after a year or so the implementation of GST.

4

11
th GST Council
Meeting-Reason
behind inclusion of
Land and Building in
Schedule III

Para 6.11-The Deputy Chief Minister of Delhi referred to his letter dated 4 March, 2017 addressed to the Hon'ble Chairperson and copies sent to all the Hon'ble Members
pointing out that designating the sale of land and sale of buildings (subject to certain exceptions), neither as supply of goods nor a supply of services (in Schedule
III of the draft CGST Law) would lead to a break in the input tax credit chain and it would be a very big missed opportunity to curb the flow of black money..
Para 6.12-The Secretary observed that as per the decision in the 7th Meeting of the Council, this issue was to be reconsidered after one year of implementation of GST
and if there was an agreement at that time to bring sale of land and building under GST, it would require amendment to Schedule Ill. He therefore suggested that
presently sale of land and building could be exempted through a notification instead of incorporating it in the law. CCT, Karnataka stated that if a decision was
taken to bring sale of land and building in GST, then several amendments would be required in the law such as Section 16 dealing with eligibility and conditions
for taking input tax credit. He therefore suggested that the entry regarding sale of land and building should not be removed from Schedule III. The Hon'ble
Chairperson stated that this issue could be taken up for decision after one year of implementation of GST. The Hon'ble Minister from Uttar Pradesh suggested to retain the
decision taken in the 7th Meeting of the Council. The Hon'ble Minister from Andhra Pradesh stated that they would further study the proposal made by the Hon'ble Deputy
Chief Minister of Delhi. The Council decided to retain the decision taken in the in Meeting of the Council (held on 22-23 December, 2016).

Part-93-Snapshot to Cases on Legal Maxims

-“Lex reprobate moram”- The law dislikes delay
-“Lex in justa non est”- An unjust law is no law at all
-“Discretio est discemere per legen quid sit justum”- Discretion consists in knowing what is just in law.
-“Actus curiae neminem gravabit”- Act of Court shall prejudice no one and Court is under an obligation to undo the wrong done to a party by act of Court
-“Sublato fundamento cadit opus”- In case of foundation is removed, the superstructure falls.

93.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Case

Held

1

Commissioner
of Central
Excise, Pune
v. Shruti
Colorants Ltd.
[2008] 17 STT
129 (BOM.)

Legal Maxim-“lex reprobate moram”-The law dislikes delay
Held-Limitation, even in common parlance, has been explained as the act of limitation, the state of being limited - a restriction and a statutory period - after which a law suit or
prosecution cannot be brought in the Court of Law. No system of administration of justice permits or grants delay as a matter of right. On the contrary, maxim lex reprobate moram is
the precept to governance of law. The provisions under the general or a special statute which provides for act and occasions to be taken with a specified period are based upon
the maxim omnes actions in mundo infra cetra tempora habent limititationem. The limitation, particularly in special statute is subjected to reasonable or strict construction as bar of
limitation causes hardship as delays in law are odious. The period of limitation once starts from terminus a qua, it does not stop, may be the party in default, is entitled to exclusion
or condonation if specifically so contemplated under the provisions of the relevant law. It is expected of every litigant to be vigilant and mindful of his right as time runs against the
indolent and those who are not mindful of their rights. Another point of view which supports strict interpretation of law of limitation is that the remedy and relief both could be declined
on the ground of laches, that is, where a party could invoke the remedy but there is unreasonable delay in pursuing the right of claim, the course of equity even there the Court
would decline to grant a relief to the applicant. This sufficiently indicates enforcement of law of limitation with all its vigour except for the exceptions carved out in the provision itself.
This principle squarely applies with greater impact upon the special legislations providing a special period for remedies available under that statute.

2

Bharat
Petroleum
Corpn. Ltd. v.
Maddula
Ratnavali [2007]
6 SCC 81

Legal Maxim-“Lex in justa non est”- An unjust law is no law at all
Held-The Court although not being oblivious of the legal principle that only because a statute causes hardship, the same may not be declared ultra vires. (Dura Lex Sed Lex) also
referred to the principle that a statute, however, must be construed justly. An unjust law is no law at all (Lex injusta non est lex). Decision in the matter of Kailash Chand & Anr.
v. Dharam Dass [(2005) 5 SCC 375], was referred wherein it was opined that the legislature is incapable of contemplating all possible situations which may arise in future litigation
and in myriad circumstances. The scope is always there for the court to interpret the law with pragmatism and consistently with the demands of varying situations. The construction
placed by the court on statutory provisions has to be meaningful. The legislative intent has to be found out and effectuated. Though law and justice are not synonymous terms they
have a close relationship, as pointed out by the American jurist Rawls. Since one of the aims of the law is to provide order and peace in society, and since order and peace cannot
last long if it is based on injustice, it follows that a legal system that cannot meet the demands of justice will not survive long. As Rawls says: Laws and institutions no matter how
efficient and well arranged, must be reformed or abolished if they are unjust. (ibid., p. 72.) Clearly, law cannot be so interpreted as would cause oppression or be unjust

3

Vijay Power
Generators Ltd.
v. Commissioner
of Sales Tax
[2000] 2000
taxmann.com
1982 (Delhi)

Legal Maxim- “Discretio est discemere per legen quid sit justum"-Discretion consists in knowing what is just in law.
Held- The Court observed that Prescribed Authority was conferred with discretion to dispense with pre-deposit conditionally or in full or in part. Such discretion was governed by
a maxim "Discretio est discemere per legen quid sit justum" (Discretion consists in knowing what is just in law). The Court also observed that discretion in general is the
discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with
caution, to discern between falsity and truth, between shadow and substance, between equity and colourable glosses and pretences and not to do according to the will and private
affections or ill-will. It has to be done according to the rules of reasons and justice, not according to private opinion. It has to be done according to law and not humour. It is not be
arbitrary vague and fanciful but legal and regular. In the case at hand the Authorities made all elaborate analysis of factual stands of petitioner to the extent desirable while dealing
with an application for stay. It suffers from no inherent fallibility to warrant interference

4

Calcutta Jute
Manufacturing
Co. v.
Commercial Tax
Officer [1998]
1998
taxmann.com
1652 (SC)

Legal Maxim-“actus curiae neminem gravabit”- Act of Court shall prejudice no one and Court is under an obligation to undo the wrong done to a party by act of Court
Held-The Court observed that the tax amount which appellant should have paid as per section 6-B remained with the them during the entire period and they would have earned
good profit with that amount. The State, to which the tax amount should necessarily have gone, was not able to utilize it for public purposes, when appellants had the advantage of
keeping the amount of tax without paying it to the State exchequer only because the High Court granted orders restraining the State from recovering that amount from the assessee,
no act of the Court shall cause prejudice to any party. The prestine doctrine couched in the maxim "actus curiae neminem gravabit" has ever remained a salutary and guiding
principle. Thus, the contention that as the Courts granted injunction restraining the State from recovering the tax amount as per section 6B would raise a presumption that the Court
was then satisfied of the bona fides of the contention is too fragile for depriving the state of the statutory right of interest incorporated in Section 10-A of the Act. Merely because the
court granted interim orders it cannot be inferred that Court was then satisfied of a strong prima facie case for the appellants.

5

Gujarat Paraffins
(P.) Ltd. v. UOI
[2012] 22
taxmann.com 92
(Guj.)

Legal Maxim-“Sublato fundamento cadit opus”-in case of foundation is removed, the superstructure falls.
Held- It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact situation, the
legal maximsublato fundamento cadit opus is applicable, meaning thereby, in case of foundation is removed, the superstructure falls. Similar principle of law, in our opinion, can
be extended in the present case too.

Part-92-Snapshot to Cases on Legal Maxims

-“Lex non curat de minimis”-Law does not care for trifles
-“Lex prospicit non respicit”-Law looks forward not backward
-“Cessante ratione legis cessat ipsa lex”-Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself.
-“Dura lex sed led”- Law is hard, but it is the law

92.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Case

Held

1

Banian & Berry
Bearing (P.)
Ltd. v. Union of
India [2002]
2002
taxmann.com
557 (Gujarat)

Legal Maxim-"Lex non curat de minimis"-the Law does not care for trifles/Courts will not intervene in disputes where the substance of the controversy is insignificant.
Held-SCN was issued on the ground that the outstanding amount paid beyond due dates should have been paid through the PLA (Personal Ledger Account) and was not permitted
to be paid through CENVAT account in view of the provisions of erstwhile Rule 57AB. Para 8 of the Additional Commissioner's order dated 28.5.2002 explains that no prejudice was
caused to the revenue on account of the delay which was for a very short period. The said para reads as under:-
"8. An illustration would be sufficient to explain the above proviso. Suppose an assessee has to pay a duty of Rs. 1,00,000/- for the period 01.01.2000 to 15.01.2000 but he had only
Rs. 80,000/- in balance in his Cenvat account on 15.01.2000. He brings in fresh inputs on 18.01.2000 which involve a Cenvat credit of Rs.50,000/-. As on 20.01.2000, he has a
balance of Rs. 1,30,000/- in his Cenvat account while has to pay duty of Rs. 1,00,000/- only. It is in such a situation only that the said proviso comes into play. Now, according to the
said proviso, the Cenvat credit by the assessee can be utilized only to the extent which was available on 15.01.2000 i.e. Rs. 80,000/-. Therefore, the amount of Rs. 20,000/- will
remain outstanding for the said fortnight, and the same will have to be paid along with interest interms of relevant portion of Rule 49 reproduced earlier in this order. There is no bar
anywhere for payment of this outstanding amount from the credit of Rs. 50,000/- which has been earned later provided the due interest is also paid. It would be absurd to suggest that
Cenvat account cannot be utilized for payment of arrears of outstanding duties. The interest on duty in terms of Rule 49 partakes the character of duty and hence it to can be paid
from the Cenvat credit without any separate account."
The High Court held that considering the fact that in para 8 of the order dated 28.5.2002 the Additional Commissioner has already explained the provision of the Rule and looking to
the extent of the delay and the principle of "Lex non curat de minimis" (the Law does not care for trifles), the Additional Commissioner was justified in discharging the notice and
in this view of the matter, the Deputy Commissioner, Central Excise also ought not to have issued the order dated 3.7.2002 especially when the delay was very marginal and the
duties were already paid by the petitioners with 24% interest

2

CIT v. Vatika
Township (P.)
Ltd. [2015] 1
SCC 1 (SC)

Legal Maxim- “lex prospicit non respicit”-law looks forward not backward
Held-The Court observed that of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is
presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the
events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law
is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset.
This principle of law is known as lex prospicit non respicit: law looks forward not backward. As was observed in Phillips vs. Eyre[3], a retrospective legislation is contrary to
the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of
past transactions carried on upon the faith of the then existing law. The Court further observed that the obvious basis of the principle against retrospectivity is the principle of "fairness",
which must be the basis of every legal rule as was observed in L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. Thus, legislations which modified
accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment
a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation

3

Kranti
Associates (P.)
Ltd. v. Masood
Ahmed
Khan [2010] 9
SCC 496 (SC)

Legal Maxim- "Cessante ratione legis cessat ipsa lex."-Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself.
Held-The Court while discussing that Reason is the heartbeat of every conclusion as it introduces clarity in an order and without the same it becomes lifeless referred to the decision
of Constitution Bench in H.H. Shri Swamiji of Shri Amar Mutt v. Commr., Hindu Religious and Charitable Endowments Deptt. [[1979] 4 SCC 642]. In the decision, while giving the
majority judgment Y.V. Chandrachud, CJ. referred to (SCC p. 658, para 29) Broom's Legal Maxims (1939 Edn., p. 97) where the principle in Latin runs as follows: "Cessante ratione
legis cessat ipsa lex." The English version of the said principle given by the Chief Justice is that: (H.H. Shri Swamiji case,SCC p. 658, para 29) "29. ... reason is the soul of the law,
and when the reason of any particular law ceases, so does the law itself." (See AIR p. 11, para 29.)

4

Oriental
Carbon &
Chemicals Ltd.
v. State of U.P.
[2011] 10
taxmann.com
357
(Allahabad)

Legal Maxim- “Dura lex sed led”- The law is hard, but it is the law
Held-The Court observed that no doubt some dealers may suffer some hardship by the impugned rules, but it is well settled that equity has no place in taxing laws vide Commissioner
of Income Taw. Fir, Muar, A.I.R. 1965 SC 1216; Commissioner of Income Tax v. M.P. Jatia, 1976(4) S.C.C. 92; D.D. Joshi v. Union of India, A.I.R. 1983 SC 420; Commissioner of
Income Tax v. Ajay Products Ltd., A.I.R. 1965 SCI358; Banarasi Debi v. Income Tax Officer, A.I.R. 1964 SC 1742; Agra City Real Estate Development Organization v. State of
U.P., 2003 (3) U.P.L.B.E.C. 2201, etc. As is said "Dura lex sed led" which means "the law is hard, but it is the law." It is well settled that a statutory rule cannot be said to be
unreasonable merely because in a given case it operates harshly vide State of Gujarat v. Shantilal, A.I.R. 1969 SC 634 (vide paragraph 52). In Srinivasa Enterprises v. Union of
India, (1980) 4 S.C.C. 507 the Supreme Court observed (vide paragraph 13): "When a general evil is sought to be suppressed some martyrs may have to suffer for the Legislature
cannot easily make meticulous exception and has to proceed on board categorization not singular individualizations" Therefore, it was held that even if some dealers suffer by the
impugned rules that would not make the rules invalid.

Part-91-One Pager Snapshot to the Latest Cases

-Passing of order by mere recitation of submission by taxpayer with no discussion on merits is arbitrary
-Buyer cannot be held responsible for mistake committed by seller in generating the invoice for Bill to Ship To model and Order to be passed within 7 days from the date of service of notice
-Can State Tax Officer be Proper Authority to exercise power U/Sec 83
-Refund can only be withheld for the amount pertaining to supplies from a non-existent supplier and balance amount to be refunded
-Penalty U/Sec 129(1)(b) not applicable as E-Way Bill & Document of title to goods were accompanying goods

91.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Section

Case Subject

Case

Held

1

Section
73

Passing of order by
mere recitation of
submission by
taxpayer with no
discussion on
merits is arbitrary

Penalty U/Sec
129(1)(b) not
applicable as EWay Bill &
Document of title to
goods were
accompanying
goods

In the instant matter, the authority had while passing the order elaborately reproduced reply of the petitioner from Internal Page No. 2 of the impugned
order upto the Internal Page No. 9. However, there was no discussion and thus the High Court held that the impugned order was passed in an arbitrary
manner without considering the reply of the petitioner. The impugned order was thus set aside and the case was remitted back to the authority to pass a fresh
order on merits and in accordance with law.

2

Section
129

Buyer cannot be
held responsible for
mistake committed
by seller in
generating the
invoice for Bill to
Ship To model
Order to be passed
within 7 days from
the date of service
of notice

Tvl.T M Steel v.
Deputy State Tax
Officer [2023]
154
taxmann.com
281 (Madras)

The petitioner i.e, Tvl.T M Steel had received an order for supply from Mr. T.Balaji (HUF). The petitioner in turn had placed an order for the supply with M/s.Rashmi
Mataliks Limited (hereinafter referred to as M/s.Rashmi) and instructed them to directly send the consignment to Mr.T.Balaji (HUF). The vehicle and goods were
detained as M/s.Rashmi while generating the tax invoice M/s Rashmi , correctly mentioned Name, address and GSTIN of Tvl.T.M. Steel in the Billed To column.
However, in Shipped To column, instead of mentioning Tvl.T.Balaji, it mentioned Tvl.TM Steel. But in address column, it clearly mentioned address of Tvl.T.Balaji.
The High Court observed that it can be considered as typographical error only. Moreover, it was not the mistake of Tvl.TM Steel, it was the mistake
committed by M/s.Rashmi. The authority did not communicate to the counterpart at Bengal to question M/s.Rashmi. It was not known how the authorities
penalizing the petitioner when the petitioner had not committed the said mistake. When the petitioner had not committed such mistake, the authorities had left
the goods in the vehicle for the past 10 days, thereby damaging the vehicle and goods. Further, authority had not passed order with 7 days from the date of
service of such notice. Under Section 129(3) of the Act, the order ought to be passed within 7 days from the date of serve of such notice. Since there is
clear violation of the provisions of the Act and hence the detention of goods is against the provisions. Therefore, the court directed the petitioner to pay Rs.
5,000/- as penalty and goods being released and authorities were at liberty to intimate the mistake committed by M/s.Rashmi Mataliks Limited to their counterpart in
West Bengal and take appropriate action

3

Section
83

Can State Tax
Officer be Proper
Authority to
exercise power
U/Sec 83

Saket Agarwal v.
Union of India
[2023] 154
taxmann.com
279 (Bombay)

The Court had heard the proceedings earlier and had adjourned it to enable the learned AGP to take instructions as to whether the State Tax Officer would be the
proper officer to exercise jurisdiction under Section 83 of the MGST Act so as to issue the impugned communication. It was fairly stated on instructions on the
date of hearing, that the State Tax Officer would not have any jurisdiction to issue such communication, therefore, impugned communication was
withdrawn by the officer who had issued it. The High Court thus held that as the impugned communication itself was withdrawn, an intimation of withdrawal of
such communication be immediately sent to the Officer-In-Charge of the Central Depository Services (India) Ltd.

4

Section
54

Refund can only be
withheld for the
amount pertaining
to supplies from a
non-existent
supplier and
balance amount to
be refunded

Solidum and
Stars Guild LLP
v.
Commissioner of
Central Tax,
Appeal-II, [2023]
154
taxmann.com
271 (Delhi)

Petitioner had filed a refund application and Adjudicating Authority issued a SCN proposing to reject petitioner's claim because supplier/s were reported as NonExistent by the respective jurisdictional CGST authorities. Although petitioner replied to the SCN but the Adjudicating Authority rejected petitioner's application for
refund as it was found on verification, that one of the suppliers named M/s Siddhi Impex was non-existent. There was no allegation in respect of any of the other
suppliers, the details of which were provided by the petitioner. The petitioner preferred an appeal under section 107 and the same was also rejected as one of the
supplier was found to be non-existent and concluded that the appellant 'had not received any input/input services from M/s Siddhi Impex'. However, there was no
allegation regarding any of the other suppliers, the details of which were supplied by the petitioner. The petitioner in the writ petition, did not seek to question the
decision of the Adjudicating Authority or the Appellate Authority in rejecting the petitioner's claim for refund in respect of the ITC in relation to the supplies received
from M/s Siddhi Impex; he confined his relief to refund of the ITC in respect of inputs received from other suppliers, amounting to Rs. 54,99,846.
The High Court observed that there was no allegation regarding any irregularity in respect of the supplies made by the suppliers other than M/s Siddhi
Impex. There was also no dispute as to the quantum of the ITC in respect of those supplies. Neither the Adjudicating Authority nor the Appellate Authority
has raised any doubt in respect of those supplies. Therefore, there was, no reason for denial of refund in respect of ITC pertaining to supplies made by
suppliers other than M/s Siddhi Impex

5

Section
129

Penalty U/Sec
129(1)(b) not
applicable as EWay Bill &
Document of title to
goods were
accompanying
goods

Diginx Trader
v. State of U.P.
[2023] 154
taxmann.com
267 (Allahabad)

Writ Petition was filed against the order whereunder penalty of Rs. 72,76,500/- had been levied upon the petitioner by not treating the petitioner to be the owner of
goods. Admittedly, the goods were duly accompanied by the tax invoice, e-way bill and bilty issued in the name of the petitioner as the consignee. It was further
contended that the petitioner was the owner of the goods and was ready and willing to deposit penalty under protest under section 129(1) (a) to get the goods
released considering the perishable nature of the goods and diminishing of its value substantially with the onset of monsoons.
The High Court observed that revenue could not dispute the fact that intention to evade tax is a per-requisite for imposition of penalty under section 129.
E-way Bills being the documents of title to the goods were accompanying the goods hence, conclusion of revenue that the petitioner was not the owner
of the goods is patently erroneous. Consequently, it was held that penalty proceedings were liable to be initiated U/Sec129(1)(a) and not 129(1)(b) as was done.
Case Relied- Sahil Traders v. State of U.P. [Writ (Tax) No. 178 of 2023, dated 25-5-2023