Part-44-One Pager Snapshot to the Latest Cases

-Condonation of Limitation period in case of rejection of appeal filed against cancellation of registration
-Calculation of Time limit for filing of Appeal as four months are not always 120 days
-Alternative Remedy
-Grant of Bail

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

S.No

Section

Case Subject

Case

Held

Cases Referred

1

Section
107

Condonation
of Limitation
period in
case of
rejection of
appeal filed
against
cancellation
of
registration

Gautam Kar v.
Union of India
[2023] 151
taxmann.com 281
(Gauhati)

The petitioner stated that Order of cancellation of GST registration was passed without any notice to the petitioner. An appeal
filed before the Appellate Authority was also dismissed on the ground of limitation.
The High Court observed that purpose of limitation being prescribed in a statute is two fold, namely, to ensure compliance of
the statutory provisions by the persons on whom the provisions of the statute are applicable and further to ensure that no third
party rights which may have been created in the meantime are permitted to be non suited/unsettled. It would be in the interest
of the revenue to permit the revocation of a cancellation of GST registration of an assessee like the petitioner so that it felicitates
collection of revenue as mandated under the GST Regime. It was further stated that a writ Court is empowered to condone the
delay of any statutory or quasi judicial authority. Accordingly, the Court stated that appeal before the Appellate Authority be reheard on merits by passing appropriate orders regarding the revocation of cancellation of GST

Commissioner
of Income Tax12 v. Pheroza
Framroze and
Company -
(2017) 11 SCC
730

2

Section
107

Calculation
of Time limit
for filing of
Appeal as
four months
are not
always 120
days

Shri Ram Ply
Product v.
Additional
Commissioner
Grade 2 Appeal
State Tax [2023]
151 taxmann.com
282 (Allahabad)

The appeal instituted by the petitioner was dismissed on the ground that it was beyond maximum period, as prescribed under
the statute i.e. four months. The appellate authority computed four months as each month would be of 30 days.
The High Court stated that provisions of Section 107 of the Act, 2017 reflects that it is not 120 days, but it is four months. The
four months may be of 121 days or 122 days, as the case may be. In the present case, in four months, around 121 days come,
and the appeal was filed on 121st day. The appellate authority should have entered into the merit of the application whether it
disclosed sufficient cause for not filing the appeal within the period of three months instead of entering into merit of the
application to find out whether the appellant, petitioner herein had sufficient cause which preventing him from presenting the
appeal within a period of three months, the appeal has been summarily dismissed only on the ground that it was beyond 120
days, and not within 120 days.

-

3

Section
107

Alternative
Remedy

T.V.H.Express v.
State Tax Officer
[2023] 151
taxmann.com 283
(Madras)

The high Court observed that, as against the impugned order, there was an appeal remedy available before the appropriate
authority. It was clear from the records that the petitioner had still not filed any appeal as against the impugned order. Therefore,
High Court, without going into the merits and factual aspects of the matter, directed the petitioner to file appeal against the
impugned order, dated 17.03.2022.

-

4

Section 69
and
Section
132

Grant of Bail

Mohd. Rashid
Siddiqui v. State of
U.P. [2023] 151
taxmann.com 284
(Allahabad)

The applicant for the bail was a young lawyer associated with the informant of the present case, who was also a practising
lawyer, sent the eight firms to the applicant for providing legal aid and G.S.T. Thereafter, on his advice, services of one Sanjay
Yadav was taken, who misused the user I.D. and password of the applicant and raised fabricated input tax credit. Learned
counsel for the applicant further submitted that detail investigation was conducted by the Investigating Officer, but the only
evidence found was of payment of Rs.1,12,000/- in the account of wife of the applicant by co-accused Sanjay Yadav.
The High Court stated that considering the rival submissions of learned counsel for applicant, learned A.A.G, learned counsel
for the complainant and going through the material available on record, contents of F.I.R., other relevant documents, gravity of
offence as well as facts and circumstances of the case, it was evident that during the course of investigation Rs.1.12 lakh was
found in the account of wife of the applicant by the main accused, Sanjay Yadav. It was also evident that said Sanjay Yadav,
had already been enlarged on bail. In such circumstances, applicant was entitled to be released on bail.

-

Snapshot-41-Snapshot of Latest GST Cases

-Since revisional proceedings under Section 108 to consider order on merits already started therefore prayer made to direct officer to undertake rectification not to be gone into.
-Until further orders, payment of GST for grant of mining lease/royalty was stayed
-Petitioner approaching the court against issue of DRC-01A held to be pre-mature.(Levy of CGST/SGST instead of IGST on order placed by local customer but vehicle transported from Assam to Tripura)
-A recipient of service cannot apply for Advance Ruling.
-Grant of Bail

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

S.No

Section

Case Subject

Case

Held

1

Section
108 and
Section
161

Since revisional
proceedings under
Section 108 to consider
order on merits already
started therefore prayer
made to direct officer to
undertake rectification
not to be gone into

Lakshmi Cot-Gin (P.)
Ltd. v. State of
Gujarat [2023] 151
taxmann.com 218
(Gujarat

In the instant case, order was passed under Section 74 on dated 3.3.2022. Order of provisionally attaching bank account was also
passed. The petition was filed to direct the officer to pass rectification order under section 161 with reference to adjudication order
dated and to set aside the order for provisional attachment alongwith refund of the amount which according to the petitioner, was
recovered coercively from the bank account. By order dated 23.11.2022, the court issued notice for final disposal but in the meantime,
officer initiated the revisional process under section 108(1) of the GST Act to again examine the merits of the said order.
The High Court thus considering the above stated that there was no gainsaying that issue raised by the petitioner and for which the
rectification had been sought for, would be under examination by the revisional authority. Thus, in view of the above, it was held that
the present petition was rendered not liable to be gone into as revisional authority was in process of adjudication of disputed aspects.

2

Section 9

Until further orders,
payment of GST for
grant of mining
lease/royalty was
stayed

Amorous Trading
India (P.) Ltd. v. State
of U.P [2023] 151
taxmann.com 219
(Allahabad

The petitioner contended that royalty payment is tax and not consideration in the context of the privilege parted by the State allowing
the petitioner and others to mine sand. That being the nature of the payment made by the petitioner, the same is not amenable to
GST as it is not consideration either for sale of goods or service provided. The reliance was placed on a Constitution Bench decision
of the Supreme Court in India Cement Ltd. and Others v. State of Tamil Nadu and Others [1990] 1 SCC 12, wherein, nature of royalty
payment was considered and it was opined to be tax, and it was shown that a similar controversy is engaging the attention of the
Supreme Court in M/s Lakhwinder Singh v. Union of India & Ors. in Writ Petition (Civil) No. 1076 of 2021. The High Court held that
until further orders, payment of GST for grant of mining lease/royalty by the petitioner shall remain stayed.

3

Section
10 of
IGST
Act,2017

Petitioner approaching
the court against issue
of DRC-01A held to be
pre-mature.(Levy of
CGST/SGST instead of
IGST on order placed
by local customer but
vehicle transported from
Assam to Tripura)

SL Automobiles (P.)
Ltd. v. State of
Tripura [2023] 151
taxmann.com 220
(TRIPURA)

The petitioner was a dealer of Honda motorcars having its head office at Guwahati and a branch office at Agartala. Upon an order
placed by a local customer for delivery of the car, the petitioner sent the vehicle from Guwahati to Agartala by way of a branch transfer
but upon payment of full IGST. The State GST authorities, however, held the belief that not IGST but CGST and SGST were payable
since this is an incident of local sale. The officer seized three motorcars which were lying in the showroom of the petitioner at Agartala
and issued DRC-01A under Section 74(1) and passed an intimation/order asking the petitioner to pay a sum of Rs.1,28,37,517/- by
way of unpaid CGST and SGST with interest and penalty. The orders of attachment and assessment was challenged in the petition.
The Court noted that DRC-01A being issued is not a show-cause notice which petitioner had prayed to quash in the writ petition.
Moreover, the proceeding was pending and without any outcome of the proceeding, the petitioner approached the court. The court
felt that the writ petition filed was at a pre-mature stage, and accordingly, the same was dismissed.

4

Section
95

A recipient of service
cannot apply for
Advance Ruling

Uttar Pradesh Metro
Rail Corpn. Ltd.
[2023] 151
taxmann.com 224
(AAR- UTTAR
PRADESH)

The applicant was a receiver of the Services and in view of point (a) provided under Section 95 of CGST Act 2017, since a supplier
of the services can only file Application for Advance Ruling. Therefore, following the decision in the matter of M/s Purvanchal Vidyut
Vitran Nigam Limited, authority did not admit the application for consideration/ruling on merits as applicant did not fall under the
definition of Advance Ruling

5

Section
69 and
Section
132

Grant of Bail

Vivek Mishra v.
Union of India [2023]
151 taxmann.com
226 (Allahabad)

The High Court noted that it was an admitted fact that applicant was neither proprietor nor owner of the firm, whereas his mother Smt.
Anusuiya Mishra was the proprietor of the firm and no charge-sheet or complaint had been filed by the Department against her. The
investigation was completed and charge-sheet/complaint had already been filed and there was no chance of tampering of evidence
or influence of witnesses.
The High Court noted that the maximum punishment under Section 132(1)(a) of the Act, 2017 is five years which was triable by
Magistrate and there was no criminal history of the applicant and applicant was having fixed place of residence and there was no
chance of his absconding. Thus, considering the complicity of accused, severity of punishment as well as totality of facts and
circumstances, the High Court found it a fit case for bail and thus bail application is allowed