| | | | |
| | SCN on same
subject matter
issued by two
authorities to be
decided by one
of the authorities | LGW Industries Ltd. v.
Assistant
Commissioner, Salt
Lake Charge [2023]
154 taxmann.com 611
(Calcutta) (15-03-
2023 | SCN was issued by Assistant Commissioner, Salt Lake Charge on dated 29th Dec 2022 and on the very same issue, Assistant Commissioner,
State Tax, Bureau of Investigation, South Bengal (HQ) had issued notice dated 7th Nov, 2022.
The Court was of the view that if the subject issue is one and the same or if the subject is inter-related, it is always better that one authority
adjudicates the matter. By directing the assessee to face multiple authorities may result in conflicting decisions. Therefore, not only in the
interest of the assessee but in the interest of the revenue also, one authority should take the decision. Admittedly, Bureau of Investigation,
South Bengal was centralised agency and if that agency has already taken up the matter for consideration and the concerned Assistant
Commissioner has issued notice dated 7th Nov, 2022, it was held to be appropriate that issues be considered by the said authority including
the issue, which was raised by the respondent in the SCN dated 29th Dec 2022 |
| Section
73/74 and
Rule 86A | An earlier order
passed under
Rule 86A(2)
lifting the
blocking of ITC
Ledger, will not
preclude the
assessing officer
in passing an
order under
Section 73/74 to
hold that ITC was
wrongly availed | D. Ranganathan &
Co. v. Assistant
Commissioner (RAL)
(FAC) [2023] 154
taxmann.com 606
(Madras) (11-04-
2023 | For the period 2017-18, petitioner's ITC had been blocked under Rule 86A on the basis that ITC had been availed allegedly, fraudulently.
The petitioner was called upon to file objections and was also heard. Pursuant thereto, an order was passed on 16-7-2021, considering the
request of the petitioner for unblocking of credit under Rule 86A in its favour. Thereafter, notices came to be issued to the petitioner on the
basis of information received by the assessing officer (hereinafter referred as “R 3”) to the effect that suppliers were non-existed or were not
conducting business from the place in which registration had been obtained. The petitioner responded to the SCN by relying on proceedings
dated 16-7-2021. The submissions made before R1 were reiterated before R3, the assessing officer, and, infact response dated 15-11-2022
relies, lock, stock and barrel, on proceedings dated 16-7-2021 only. After considering the explanation and hearing the petitioner in detail, R3
proceeded to pass the impugned order on 5-1-2023.
The Court observed that while passing an order lifting the blocking of credit, the assessing authority was undoubtedly required to examine
whether such block has been validly made. It was thus incumbent upon the officer concerned to examine every aspect of the matter prior to
arriving at a proper decision. However, at the same time, it was also incumbent upon the dealer to establish receipt of the goods or services.
R3, in the impugned order of assessment had proceeded on the basis that the petitioner did not establish movement of goods. In fact, he
referred to various particulars called for by him, such as weighment slips, vehicle receipts for goods transportation, freight for inward and
outward related documents, fuel expenses, stating that such documents were not produced. He thus concluded, that petitioner did not
discharge burden placed upon him to establish movement of goods and, based on such failure as well as the departmental enquiries,
concluded that the transactions were fictitious as the suppliers did not exist. As regards the bank statements, there was an explanation put
forth in the order to the effect that cash has been credited and debited the same day and hence the transactions constituted classic circular
transactions. The High Court, thus concluded that true, R3 ought to have made reference to order of R1 dated 16-7-2021 and undoubtedly,
this was a flaw in the assessment order but not a fatal flaw. The power of an assessing officer under section 73/74 is wide and proceedings
for assessment may be initiated in any circumstance where it appears to the proper officer that the claim of ITC by an assessee is incorrect.
The mere fact that an order has been passed under Rule 86A(2) will not stand in the way of the assessing officer making an assessment or
curtailing his powers in any way, in such an exercise. |
| | Conduct of the
assessee to be
considered in
case of expired
Eway Bill and
having found
that the conduct
was not with the
intention to
evade tax, relief
to be granted to
the assessee | Usha Martin Ltd. v.
Deputy Commissioner
of State Tax [2023]
154 taxmann.com 610
(Calcutta) (16-06-
2023) | The goods in question were meant for export and the appellants had generated an e-Way Bill which was valid till 12th September, 2019. The
appellants' case was that the goods while being loaded into the vessel had got damaged and as a result, the goods had to be taken back to
the appellants factory at Ranchi for repairs. For such purpose the e-Way Bill was generated based on a challan on 7th September, 2019 which
was valid till 12th September, 2019. In terms of Rule 138(10), an option is given to extend period of e-Way Bill and such extension should be
done before eight hours. Admittedly, eight hour period expired about 8.10 a.m. on 13-9-2019 and at about 8.20 a.m., goods were detained.
The Court observed that on perusal of e-Way Bill, it was seen that no tax was payable since the goods which were owned by the appellants
were taken back to their factory at Ranchi for repairs. The identical issue was considered in various matters earlier by the Court and in all
those matters, conduct of the assessee was considered and having found that the conduct was not with the intention to evade tax, relief was
granted to those assessee’s. The Court thus concluded that case on hand would also fall under the said category since there was no
allegation of any evasion of tax rather it was not disputed that goods were being transported under a cover of challan to the factory of
appellants for carrying out repairs and thus, it was not a fit case where tax and penalty should have been levied on the appellants.
Cases Referred- Progressive Metals Pvt. Ltd. v. The Deputy Commissioner, State Tax, Bureau of Investigation, South Bengal, Durgapur
Zone & Ors. in MAT 562 of 2023 dated 28-4-2023; KDG Projects Pvt. Ltd. v. Assistant Commissioner of State Tax, Bureau of Investigation
(North Bengal) reported in 2022(66) G.S.T.L. 262 (Cal.); Medha Servo Drives Private Limited & Anr. v. The Assistant Commissioner of, State
Tax, Bureau of Investigation (South Bengal), Durgapur Zone & Ors. in MAT 1751 of 2022 dated 17-11-2022 |
