Part-163-One Pager Snapshot to Cases on Section 61,73, 75 and 129 of CGST Act, 2017

-Section 73-SCN only can be taken forward, by permitting the petitioner to urge all contentions in relation to the SCN and thus. statement of one of the transporters recorded during enquiry, needs to be provided to the petitioner

-Section 129- Delivery Note and Delivery Challan are different documents and penalty confirmed since goods during movement only had delivery note and not delivery challan as required under Rule 55 read with Rule 138 along with document substantiating goods were sent for approval and payment of tax & penalty also voluntarily deposited by petitioner at the time of release of goods

-Section 75-Impugned order quashed as authority neither replied to the request of petitioner for grant of 30-days time to file reply nor did it provide opportunity of being heard even though the same was requested by the petitioner

-Section 61-Impugned SCN stayed as Court prima facie found force in contention of petitioner that issuance of SCN U/Sec 73 was without compliance of the mandatory conditions precedent, prescribed under provisions of Section 61 r/w Rule 99, to derive jurisdiction to issue SCN U/sec 73

Part-162-One Pager Snapshot to Cases on Section 9, 54, 73 of CGST Act, 2017

Section 9- Petitioner directed to refund the tax collected from customers since services such as application fee for releasing connection of electricity, rental charges, testing fee, labour charges for shifting meters, etc. are not chargeable to GST as they are bundled supplies and form an integral part of the supplies of distribution of electricity.

Section 73- SCN quashed and matter remanded back to conduct investigation at supplier end as authority failed to conduct investigation when petitioner in their reply to Pre-SCN had requested authority to investigate at the supplier’s end, where there was an allegation of retrospective cancellation of the supplier’s registration.

Section-54-Matter remanded back as order failed to consider the reply submitted by the petitioner on record

Part-161-One Pager Snapshot to Cases on Section 54, 67, 168 of CGST Act, 2017

-Section 168-Since the impugned circular (Circular No. 80/54/2018-GST dated 31-12-2018) was already aside by a coordinate Bench of the Court, therefore, petitioners’ grievance with regard to the said circular does not survive

-Section 67-Since reason for carrying out search were provided to Joint Commissioner subsequently which he signed on the date following the search, thus, the search carried out was illegal as authorisation was vitiated

-Section 54- Refund under inverted duty Structure does not contemplate comparing rate of tax on the principal input with that on principal output and Circular No.135/05/2020 has no application where ITC, has accumulated on account of rate of taxes on certain inputs being higher than tax chargeable on output, notwithstanding that one of the main input and output is chargeable at the same rate of tax

Part-160-One Pager Snapshot to Cases on Section 9, 16, 56 and 107 of CGST Act, 2017

-Section 9- It was difficult to accept that petitioner could collect any GST from its consumers after paragraph 4 of the circular No. 34 Dated 01-03-2018 has been set aside but since petitioners Transfer Petition was pending before Hon’ble Supreme Court and tagged with batch of other matters, including the one arising from decision of Gujarat High Court, consideration of the present petition was deferred

-Section 107-Notwithstanding order was passed in the name of Driver but consignor can also file appeal against order U/Sec 129 as person aggrieved by any decision passed may prefer appeal to Appellate Authority U/Sec 107

-Section 56-Interest @ 6% is payable for the period commencing from a date immediately after expiry of sixty days from the date of an application under Section 54(1), however, interest @ 9% payable for period covered under proviso to Section 56, if a person’s claim is a subject matter of further proceedings, which finally culminate in favour of applicant

-Section 16- 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 the input tax credit

Part-159-One Pager Snapshot to Cases on Section 50, 74, 140 of CGST Act, 2017

-Section 50- Once it is proved that amount of excess ITC though entered in the ledger in excess, was never utilized and since it was reversed prior to utilizing, demand of interest as well as penalty was not at all tenable

-Section 140-Transitional credit can only be disallowed because of non-conformity with condition stipulated in Section 140(3) and not because of considerations which were the subject matter of assessment under JVAT Act

Part-158-One Pager Snapshot to Cases on Section 6, 74, 140 of CGST Act, 2017

-Section 6-Summons being issued under section 70 by Central Tax Authority based on an intelligence input; makes it an intelligence-based enforcement action and thus proceedings initiated by State Tax Officer U/Sec 65 subsequent to the summons issued by Central Tax Authority kept in abeyance

-Section 140- Petitioners entitled to transition TDS under the TNVAT Act in terms of Section 140 of the TNGST 2017

-Section 6-There was no application of Section 6 of CGST Act, 2017 when petitioner was summoned by two different authorities as a witness to ascertain his complicity in the transactions

-Section 74- Assessee is not required to request for “opportunity of personal hearing” and it remained mandatory upon the Assessing Authority to afford such opportunity before passing an adverse order

Part-157-One Pager Snapshot to Cases on Section 16, 29, 74, 107,125,129 of CGST Act, 2017

Part-156-One Pager Snapshot to Cases on Section 16, 37, 54 of CGST Act, 2017

-Correction of error in GSTR-1 allowed as bonafide, inadvertent error in GST return needs to be recognized, and permitted to be corrected, when there is no loss of revenue. Such freeplay in joint requires an eminent recognition

-Matter remanded back as Order in Original passed without giving adequate opportunity and Order in Appeal passed relied upon Rule 89 which was not part of the SCN nor the same was put forth to the petitioner

-SCN denying ITC because retrospective cancellation of suppliers as nothing on record showing cancellation of the registration of any of suppliers in question retrospectively particularly for relevant assessment year 2018-19

-Section 16(4) is constitutionally valid and Section 16(1) is the enabling section rather than Section 16(2) and that Section 16(2) is only a restrictive provision of ITC which is otherwise allowed as per Section 16(1)

-Section 16(4) neither violative of Article 14 and nor Articles 19(1)(g) & 300A of the Constitution

Part-155-One Pager Snapshot to Cases on Section 16, 54,161 of CGST Act, 2017 and HSN 9986

-Finding recorded for ITC denial cryptic as it only states that supplier’s registration cancelled, but no date of cancellation mentioned to demonstrate whether transaction took place prior to cancellation or subsequently

-CBIC Circular No. 16 Dt 15-11-2017, cannot under the guise of clarification amend the notification No.12 of 2017 so as to delete ‘tea’ as an agricultural produce from the ambit of exemption

-Neither permissible for Appellate Authority to overlook Rule as it stood nor disregard Circular Dt 31-03-2020

-Revenue directed to consider the rectification application for correcting the error of claiming ITC in IGST instead of CGST and SGST and pass necessary order in accordance with law

Part-154-One Pager Snapshot to Cases on Section 73, 75, 129 of CGST Act, 2017

-Order passed in violation of Principle of Natural Justice set aside as information regarding Parameter 70 and 73 not given to petitioner in the garb of information available on Portal

-When tax invoice and E-way bill are produced the assessee, the goods shall be treated as belonging to the assessee, who comes before the authorities as the owner of the goods and produces the above documents

-DRC-01 cannot be a substitute of SCN and proceedings were in violation of principle of Natural Justice when SCN did not strike out relevant particulars and did not enumerate contravention which petitioners were to reply

-Merely because SCN issued did not refer to Section 73(11) but referred only to possibility of penalty U/Sec 73(9), appellant cannot be said to be prejudiced when facts leading to invocation of provision were admitted by appellant