| | | | |
| Section 5
of IGST
Act, 2017 | Duty Free Shops,
whether in arrival/
departure
terminal, being
outside the
customs frontiers
of India cannot be
saddled with any
indirect tax burden | Plus Max Duty Free
(Madurai) (P.) Ltd. v.
Principal Chief
Commissioner of
GST & Central
Excise [2023] 151
taxmann.com 194
(Madras) | In the instant matter it was contended that no GST is payable on the amounts paid by the petitioner as license fees under License
Agreement dated 05.04.2017 for the duty-free shops.
The High Court relied upon the judgement of Hon’ble Apex Court in Commissioner of CGST and Central Excise v. Flemingo Travel Retail
Ltd. [Civil Appeal Diary No.24336/2022, dated 10.04.2022] has held that Duty Free Shops, whether in the arrival or departure terminals,
being outside the customs frontiers of India, cannot be saddled with any indirect tax burden and any such levy would be unconstitutional.
Therefore, if any tax is levied, the same cannot be retained and the Duty Free Shops would be entitled for refund of the same without
raising any technical objection including that of limitation and thus allowed the writ petitions.
Cases Referred- Commissioner of CGST and Central Excise v. Flemingo Travel Retail Ltd. [Civil Appeal Diary No.24336/2022,
dated 10.04.2022], |
| | Order cannot be
sustained as no
reason assigned
while passing
order and no
opportunity of
hearing given | Jogesh Kumar
Dehury v. Additional
CT & GST Officer
[2023] 151
taxmann.com 193
(Orissa) | In the instant case, Petitioner contended that he was never served with any notice prior to passing of the impugned order and the authority
did not assign any reason and the order does not contain details of demand raised and thereby he was deprived of availing opportunity
of hearing. The counsel for Revenue Department stated that on perusal of order impugned it was evident that no reason had been
assigned by the authority and, as such, while passing such order no opportunity of hearing was also given. Therefore, the same cannot
be sustained in the eye of law.
In view of the above, the High Court set aside the assessment order and directed the Petitioner to appear before the Assessing Officer
and furnish objection, if any |
| Section
73 and
Section
74 AND
section
39 | If there is an
inadvertent or
typographical
error that has crept
in GSTR-3B, the
taxpayer cannot
be mulcted with
the tax liability in
excess of what is
due and payable | Instakart Services
(P.) Ltd. v. Sales Tax
Officer [2023] 151
taxmann.com 192
(Delhi) | In the instant case, an error had crept in GSTR-3B filed for the month of September, 2017 wherein petitioner had erroneously typed its
liability for tax as Rs. 32,33,36,855/- instead of Rs. 3,23,36,855/-. It discharged its liability by using the available balance of Input Tax
Credit (ITC) of Rs. 29,10,00,000/- discharging the said liability, which the petitioner claims as an apparent error. The petitioner immediately
reversed the ITC that was used for discharging the overstated liability and reported the same in its returns filed for the month of October,
2017. Thereafter, on 22.12.2017, the petitioner filed its returns (GSTR-1) for the month of September, 2017 and correctly stated the tax
liability at Rs. 3,23,36,855/-instead of Rs. 32,33,36,855/- as reported earlier. Petitioner contended that the benefit of Circular No.26 dated
29.12.2017 issued for providing a mechanism for correction of mistakes in (FORM GSTR-3B) returns has not been extended on the
ground that it was issued subsequently. In response to a letter communicated to the taxpayer, a personal hearing was scheduled on
20.04.2023 and the petitioner explained the reasons for reversing the excess amount of ITC. The revenue, thereafter issued a show
cause notice for the mismatch in the FORM GSTR-2A and FORM GSTR-3B for a sum of Rs. 55,39,99,352/-, which comprised of the tax
demand of Rs. 30,00,26,728/- and interest on the said amount quantified at Rs. 25,39,72,624/-.
The High Court observed that if there is an inadvertent or typographical error that has crept in any returns, taxpayer cannot be mulcted
with tax liability in excess of what is due and payable and the explanation provided by petitioner were not considered. The High Court
thus directed the concerned authority to pass an appropriate order pursuant to the SCN considering the petitioner's responses |
| | Provisional
attachment
ceases to be
operative after
expiry of one year
from order date | Balaji Enterprises
v. Principal
Additional Director
General [2023] 151
taxmann.com 191
(Delhi) | The department itself fairly admitted that a period of one year had expired since the date of the impugned order and in terms of Subsection (2) of Section 83 of the CGST Act, the provisional attachment order has ceased to be operative. Therefore, in view of this, the
High Court held that the petitioner cannot be restricted to operate the bank accounts, on account of the impugned order |
