S.No

Section

Case Subject

Case

Held

1

Section
83

Exercise of
Re-course
under Rule
159(5)
before
exercising
the writ
option

Smt. Lalita v.
Central Goods
And Service
Tax [2023]
153
taxmann.com
171
(Allahabad)

An investigation was initiated for availing and passing on wrong Input Tax Credit by creating various firms without supply of goods. During the course of
investigation an order dated 2-4-2022 was passed attaching the Bank account of the petitioner. Since attachment order under section 83 ceases to have
effect after expiry of one year as contemplated under section 83 (2) of the CGST Act, 2017 petitioner moved application requesting for the de-attachment
of the Bank account on 3-4-2023. Petitioner then sent another letter on 18-4-2023 and responding to the letter, the authority passed impugned order on
21-4-2023 attaching the Bank account of the petitioner. It was also submitted that impugned order dated 21-4-2023 was invalid having been issued
without DIN number in violation of Circular dated 5-11-20219 and 23-12-2019. It was further contended that order impugned proceeds on the premise
that proceeding under Section 122 of the Act have been launched against the petitioner through no show cause notice in form DRC-01 under Rule 142
has been issued so for.
The High Court observed that the petitioner approached the Court without availing the remedy available under Rule 159(5) of CGST Rules, 2017. Further
the Bank account of the petitioner remained under attachment since long once under order dated 2-4-2022 and thereafter under the order dated 21-4-
2023 but partially the petitioner herself was held to be responsible for not taking recourse to Rule 159 (5) of the Rules early. The High Court thus, directed
the petitioner to approach the authority under Rule 159 (5) by filing objections

2

Section
18

Can Claim
of ITC in
GSTR-3B
since Form
in ITC-02
was not live
on the
portal be
justified

Tikona Infinet
(P.) Ltd. v.
State of U.P.
[2023] 153
taxmann.com
170
(Allahabad)

The petitioner entered into a Business Transfer Agreement on 17-8-2017 with another Company i.e. M/s Tikona Digital Network Pvt. Ltd. under which
the business was transferred to the petitioner. M/s Tikona Digital Network (TDA) had accumulated ITC balance of more than Rs. 3,1313,68,997/- which
was unutilized. The petitioner attempted to transfer ITC as per the procedure prescribed under Rule 41 of the CGST Rules, 2017, however functionality
for filing Form ITC-02 was not available on the common portal. The non availability was communicated to the jurisdictional Assessing Authority. Faced
with serious working capital issues, the petitioner manually accepted and availed the ITC of Rs. 3,13,68,997/-. After a lapse of five years, the petitioner
was served with a show cause notice dated 28-2-2023 requiring the petitioner to serve the differential ITC of Rs. 2,88,35,905.60/- along with interest
and penalty. The total ITC available in Form GSTR-2A is Rs. 2,22,24,921.08/- whereas petitioner availed the ITC of Rs. 5,10,60,826.68/-. The petitioner
submitted the reply but impugned order creating the demand was passed.
The High Court found that the petitioner has been non suited on the ground that Form ITC-02 for transfer of input tax credit was not available
on the GST Portal which was in nascent stage during the initial months after its implementation on 1-7-2017 and it was incumbent upon the
petitioner to have raised a proper grievance on the GST portal help-desk and ought to have waited for the relevant Form to go live on the GST
portal instead of making illegal adjustment by use of the Form GSTR-3B of the transferor and the transferee company and mere shortage of
working capital cannot be an excuse to bypass the legal procedure laid down under the law. Further the high court was of the view that the stand
of the Respondent No. 2, for rejecting the claim of the petitioner in the wake of the admitted fact that the GST common portal was not online cannot be
justified. Therefore, the order dated 17-4-2023 was set aside with liberty to the Respondent No. 2 to pass fresh order taking into consideration
the objections of the petitioner and also affording it opportunity of hearing, strictly in accordance with law

3

Section
29 and
30

Cryptic SCN
for
cancellation
of
Registration

Bhati
Enterprise v.
Union of India
[2023] 153
taxmann.com
167 (Gujarat)

SCN was issued by the department on the ground that the registration was obtained by means of fraud, wilfull misstatement or suppression of facts. The
petitioner contended that the impugned SCN violated the principles of natural justice inasmuch as the show-cause notice was vague and cryptic and did
not state the exact case against the petitioner firm that how the petitioner committed fraud, wilful misstatement or suppression of facts; while obtaining
the registration as no documents were supplied to the petitioner alongwith the said show-cause notice so as to enable the petitioner to file a reply.
The High Court quashed the impugned SCN being without reasons and cryptic with a liberty to issue a fresh SCN.
Cases Referred-Sarvoday Impex v. Union of India rendered a decision on 07.06.2023 in Special Civil Application No. 903 of 2023

S.No

Section

Case Subject

Case

Held

1

Section
54

Rejection of
refund on
account of
availment of
Higher
Drawback

Sunlight Cable
Industries v.
Commissioner of
Customs [2023] 152
taxmann.com 247
(Bombay)

The Petitioner had availed drawback wherein both higher and lower draw back rates were same and department rejected the refund for the
month of August 2017 stating that Petitioner had availed a higher duty drawback on its exports under the Export Invoice and corresponding
Shipping Bill.
The High Court observed that rationale for not allowing the refund of IGST for those exporters, who claimed higher duty drawback was that
the higher duty drawback reflects the elements of Customs, Central Excise and Service Tax taken together and since higher duty drawback
was already being availed than granting the IGST refund would amount to double benefit as the Central Excise and Service Tax had been
subsumed in the GST. Thus, drawback rates being the same, it represented only the Customs elements, which did not get
subsumed in the GST and thus, the writ-applicant could be said to have availed double benefit i.e. of the IGST refund and higher
duty drawback.
Cases Referred- Amit Cotton Industries v. Principal Commissioner of Customs 2019 (29) G.S.T.L. 200 (Guj.), Gujarat Nippon International
Pvt. Ltd. v. Union of India 2022 (64) G.S.T.L. 45 (Bom.), Kishan Lal Kuria Mal International v. Union of India [2023] 95 GST 177 (Delhi)

2

Section
73

Opportunity of
being heard is
different from
opportunity of
furnishing the
Reply

Preca Solutions India
(P.) Ltd. v. Assistant
Commissioner [2023]
152 taxmann.com 269
(Andhra Pradesh)

The petitioner had sought an opportunity of being heard personally but the order was passed without giving any such hearing. It was
contended by the department that a show-cause notice was issued and the petitioner had submitted an explanation in response to the
same therefore, it cannot be construed by any stretch of imagination that the impugned order was in violation of principles of natural justice
and in contravention of the mandatory requirements of law.
The High Court observed that petition disclosed in unequivocal terms that the petitioner made a request to the respondents to
afford an opportunity of personal hearing. Therefore, it was held that impugned order passed was not only in violation of
mandatory provisions under sub-section (4) of Section 75 of the Act, 2017, but also in violation of the principles of natural justice.
Therefore, the impugned order was liable to be set aside.

3

Section
83

Cash Credit
account cannot
be
provisionally
attached

J.L. Enterprises v.
Assistant
Commissioner [2023]
152 taxmann.com 278
(Calcutta)

The petitioner had contended that the cash credit account of the petitioner was provisionally attached by the officer. This present appeal
was an intra-Court appeal directed against the order dated 25.05.2023 passed in WPA 12132 of 2023. By the said order the writ petition
was disposed of by relegating the appellant to resort to the remedy provided under Section 159(5) of Central Goods and Services Tax
Rules 2017 (for short "the Rules").
The High Court observed that it goes without saying that the Court has accepted the legal position which has been settled by various
decisions which have been referred to in the impugned order. If such be the case, no useful purpose will be served by relegating the
petitioner to avail the remedy under sub-Section 5 of Section 159 of the Rules. Therefore, the writ Court ought to have allowed the writ
petition in its entirety instead of relegating the appellant to a remedy which is inapplicable to the cases where there is an order of provision
attachment of a cash credit account. Therefore, the appeal was allowed and the order passed by the learned writ Court was set aside
insofar as it directed the appellant to avail the remedy under Sub-Section 5 of Section 159 of the Rules and in other respect where
the learned writ Court had rightly accepted the legal position stood confirmed.

4

Section
129

Non-Extension
of Eway bill
being day of
expiry being
Saturday.

Sunil Yadav v. Assistant
Commissioner [2023]
152 taxmann.com 270
(Calcutta

The petitioner's vehicle, bearing registration number WB33C6286 which was carrying goods covered by e-way bills was intercepted on 4th
February, 2023. The petitioner also said that under the applicable rules, the petitioner was entitled to revalidate the e-way bill within 8 hours.
from the time it lapsed and as such the time of interception was within the period. The petitioner contended that 4th February, 2023, being
Saturday and the petitioner even if had made an application for revalidation of e-way bill, the same in all likelihood would not have been
revalidated on the same date, being Saturday.
The High Court relied upon the judgement in the matter of Pushpa Devi Jain v. Assistant Commissioner of Revenue, Bureau of
Investigation, North Bengal Headquarters & Ors.) and set aside the detention order.

S.No

Section

Case Subject

Case

Held

1

Section
54

Extension of Time
Limit for filing of
refund application

Geeta Enterprises
v. Union of India
[2023] 152
taxmann.com 27
(Delhi)

The order-in-original dated 11.05.2021 rejected the petitioner's claim for refund of ITC for the month of April, 2018 as time barred. The
order-in-appeal rejected petitioner's appeal. The petitioner contended that vide notification dated 05.07.2022 (Notification No.13/2022 -
Central Tax) period of limitation for filing an application for refund under Sections 54 and 55 of the CGST Act has been relaxed.
The High Court set aside the impugned orders and the petitioner's application were restored for deciding the same on merits.

2

Section
16

Recipient cannot be
held liable for
incorrect filing of
GSTR-1 by the
supplier and
supplier directed to
refund the amount of
demand recipient
had to pay for
incorrect filing of
GSTR-1 by supplier
as the said amount
not reflected in
GSTR-2A of
Recipient

Agrawal &
Brothers v. Union
of India
[2023] 152
taxmann.com 111
(Madhya Pradesh)

The instant writ petition was filed by M/s Agarwal and Brothers against the Railways for incorrect reporting of Transaction in GSTR-1 and
due to which they had to pay a demand of Rs 13,38,544/- to GST Department as the said amount of ITC was not reflected in GSTR-2A.
The petitioner purchased for a total consideration of Rs.51,97,142/- including the GST of Rs.9,35,486/-. The petitioner thereafter came to
know that Railways had committed default in reporting the entries by not reporting the auction sales invoice duly paid by the petitioner in
GSTR-1 due to which the auction sale invoice was not reflected in the petitioner's GSTR-2A. GST Department issued a demand notice
dated 05.02.2020 to the petitioner demanding input tax wrongly availed with interest. In order to avoid the cancellation of GSTIN due to
non-payment of the GST charges, the petitioner agreed to repay the requisite GST charges on aforesaid entries for the year 2017-18 under
protest. Final order was passed by the Officer confirming demand of ITC amounting to Rs.9,34,096/- together with interest of Rs.4,04,451/-
The High Court stated that there is no recovery of GST against the petitioner since the amount has already been deposited. However, it is
a settled law that no one cannot be made to suffer for the fault of another. Since this deposit of GST was not reflected in GSTR-2A of the
petitioner due to fault of Railways, therefore, petitioner had to pay the GST to the department with interest again in order to avoid the
cancellation of GSTIN, therefore, he is entitled to seek the return of Rs.13,38,544/- from Railways.
The Writ Petition was allowed and Railways was directed to return the amount of Rs.13,38,544/- to the petitioner and Railways was stated
to be at liberty to submit a claim before the GST department as the same has been paid by the petitioner and if such claim is submitted,
the competent authority GST Department shall decide the same in accordance with the law. The Writ Petition was allowed with a cost of
Rs. 10,000/- in favour of the petitioner payable by Railways

3

Section
83

Order of Provisional
Attachment cannot
be in force for a
period of more than
one year

Sri Om Traders v.
Principal
Additional Director
General of GST
Intelligence Officer
DGCI [2023] 152
taxmann.com 115
(Karnataka)

The High Court stated that in the present case, the period of one year from the passing of the provisional orders of attachment has expired
as evident from the details furnished and the provisional orders of attachment automatically by operation of law have been ceased to be in
operation. Accordingly, the impugned orders of attachment were declared to be no longer in operation from the expiry of the period of one
year as stipulated under Section 83(2) of the Act.

4

Section
107

Additional condition
for payment for stay
of demand cannot
be imposed when
Appeal has already
been filed with 10%
Pre-Deposit

Liakhat Ali Mallick
v. State of West
Bengal [2023] 152
taxmann.com 114
(Calcutta)

The appellant had earlier challenged notice dated 13th February, 2023 on the ground that the appellant has paid the entire tax as demanded
and has also preferred an appeal before the appellate authority and before the expiry of the period for filing the appeal, the garnishee notice
was issued. The learned Single Bench thereafter granted stay of the garnishee notice but imposed a condition that the appellant had to
deposit 20% of the interest liability. The decision was challenged.
The High Court reversing the decision of Single Bench held that considering that the statutory requirement mandates payment of only 10%
of the disputed tax, therefore a condition need not be imposed by directing the appellant/petitioner to pay 20% of the interest