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

Part-151-One Pager Snapshot to Cases on Section 29, 47, 73 and 140 of CGST Act, 2017

-Time given for revenue to file reply however Court was of the view that any assessee who filed returns in GSTR-9/9C in respect of financial years from 2017-18 to 2021-22 before 31st August, 2023 should be eligible for concessional rate of late fee as prescribed in the said notification.

-A non-reasoned order asking the petitioner to furnish returns beyond the period when he has closed the business was unsustainable in the eyes of the law.

-Matter remanded back as none of the contentions as urged by the petitioner were recorded as also there was no discussion whatsoever on the issues as raised by the petitioner

– Petitioner company not entitled to avail ITC of GST trade on goods and services used for construction as per Section 17(5) (c) and (d) and ground of natural justice during adjudication proceedings not allowed to be raised in hearing since not part of grounds of appeal before appellate authority or petition before the Court

Part-150-One Pager Snapshot to Cases on Section 29, 129 of CGST Act, 2017

-It is not open for the department to again cancel petitioner’s GST registration for the same reason on which registration was earlier cancelled but revoked unless it is premised on the ground that had occurred after the date from which petitioner’s GST registration was cancelled earlier

-Petitioner’s GST registration was proposed to be cancelled on the ground that it had not furnished any return for a period of six months, therefore it could not be a ground for cancelling GST registration ab initio

-Once SCN and order cancelling registration did not provide for any reason whatsoever for action being taken against the petitioner then it was an incurable defect which could not be improvised in reply of respondents before the Court.

-On goods being verified during movement, it was found that goods being transported were different from mentioned in invoice & E-way bill and value was also different, thus matter remanded back considering submission of petitioner that authority passing impugned order was neither assessing authority and nor adjudication authority

Part-148-One Pager Snapshot to Cases on Section 29, 67, 74, 75 of CGST Act, 2017

-Penalty U/Sec 74 held to be justified since petitioner failed to discharge its onus to prove and establish beyond doubt the actual transaction, actual physical movement of goods as well as the genuineness of the transactions

-Revocation was cancelled registration not allowed as the order was a reasoned order and order passed based upon physical enquiry and discrepancies observed not properly explained by the petitioner

-Assessee is not required to request for “opportunity of personal hearing” and assessing authority bound to give the hearing even if petitioner may have signified ‘No’ in the column meant to mark assessee’s choice

-Officers had no power to seize cash under section 67 of the CGST Act

-On the direction of the court, Silver was released to the petitioner at the respondent’s office which was situated at fourth/fifth floor but was again seized at Ground Floor of building to over-reach the orders passed by the Court.

Part-126-One Pager Snapshot to Latest Cases on Section 29, 112 of CGST Act, 2017 and Rule 86A of CGST Rules, 2017

-Stay on Recovery subject to deposit of 20% of the amount as Tribunal not ye constituted
-Cancellation of Registration on an order passed without any reasoning
-Department not required to be told by the Court as to what would be the position in law as also the correct approach in law, the officers need to follow.
-There had to be a sense of responsibility and accountability, any mechanical approach in this regard, even to justify such action, could not be the stand of the department

S.No

Subject

Case

Held

1

Stay on Recovery
subject to deposit
of 20% of the
amount as
Tribunal not ye
constituted

Gautam
Kumar v.
State of Bihar
[2023] 155
taxmann.com
586 (Patna)
(03-10-2023)

The Court observed that the petitioner was desirous of availing statutory remedy of appeal against the impugned order before the Appellate Tribunal under
Section 112. However, due to non-constitution of the Tribunal, the petitioner was deprived of his statutory remedy. Under the circumstances, petitioner was also
prevented from availing the benefit of stay of recovery of balance amount of tax upon deposit of the amount as contemplated under Section 112(8).
The Court thus disposed of instant writ petition to stay the demand subject to deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, if
not already deposited, in addition to the amount deposited earlier under Section 107(6). The petitioner cannot be deprived of the benefit, due to non- constitution
of Tribunal by respondents themselves. The recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed.
Case Referred-SAJ Food Products Pvt. Ltd. vs. The State of Bihar & Others in C.W.J.C. No. 15465 of 2022.

2

Credit Ledger
blocked by State
Tax Officer not
valid as CGST
Rules allow only
by Officer not
below Assistant
Commissioner

Guru Storage
Batteries v.
State of
Maharashtra
[2023] 155
taxmann.com
571 (Bombay)
(13-09-2023)

In the instant case, Electronic Credit Ledger was blocked under the provisions of Rule 86A of CGST Rules, 2017. The contention was that blocking of the
Electronic Credit Ledger (ECL) was done by State Tax Officer and it cannot be done by State Tax Officer being an Officer below the rank of Assistant Commissioner.
The court observed that a perusal of Rule 86A of the CGST Rule, 2017, indicate that such a blocking can be done by the Commissioner or an officer authorized
by him in this behalf, not below the rank of Assistant Commissioner. However, the authority exercising the power did not fall within that category and was an Officer
of the rank below that of the Assistant Commissioner. Though the Notification dated 24/1/2020 had been relied upon to contend that the power was delegated by
the Commissioner to the authority, the same was under the State GST Act, whereas Rule 86-A of the aforesaid Act would contemplate a delegation by way of
amendment to the Rule. Notification dated 24/01/2020, was held to be of no assistance and action on behalf of the revenue in blocking the ECL was quashed.
Distinguished in the matter of Ashapura Steel Metal v. Union of India [2023] 155 taxmann.com 440 (Bombay) (17-10- 2023)

3

-Cancellation of
Registration on an
order passed
without any
reasoning
-Department not
required to be told
by the Court as to
what would be the
position in law as
also the correct
approach in law,
the officers need
to follow.
-There had to be a
sense of
responsibility and
accountability,
any mechanical
approach in this
regard, even to
justify such action,
could not be the
stand of the
department

Makersburry
India (P.) Ltd.
v. State of
Maharashtra
[2023] 155
taxmann.com
542 (Bombay)
(03-10-2023)

In the instant case, the only reason set out in SCN to cancel registration, was: “In case, Registration has been obtained by means of fraud, willful misstatement
or suppression of facts.” SCN also suspended registration of the petitioner.
Contention of Petitioner against the SCN- It was contended that they had replied to the SCN inter alia contending that Directors of the Company had appeared
before the Officer and had given their respective statements as also submitted all the relevant documents. It was also contended that as initially the documents
submitted were not accepted by the department, they were forwarded by email. It was also pointed out that all documents were loaded on the portal while obtaining
the registration, details of which were also set out in the reply. Further, staff of the department had visited petitioner’s registered place of business, as also were
furnished documents. It was hence the petitioner’s case that the petitioner had cooperated with the department on all aspects.
Order by the Officer-The registration was cancelled stating that “You could not explain the reason for not being presented at the time of visit at P.O.B and A.P.O.B.
of MAKERSBURRY INDIA PRIVATE LIMITED, there were no any business activity found nor any stock found. Both the Directors or any Authorized Legal
Representative not represented the case or could furnish any statement satisfactorily. The reply submitted by the taxpayer dt. 25/08/2022 is not relevant to the
point raised in show-cause notice issued by this office. Hence, the same is not acceptable to this office. The effective date of cancellation of your registration is
10/04/2021.”
Observation by the Court on order by Appellate Authority- In the backdrop of voluminous material being placed for consideration before the appellate authority,
it appeared that the authority proceeded to pass impugned order without considering such materials, thereby rejecting the petitioner’s appeal. The appellate
authority merely referred to the documents which were submitted. There was no discussion whatsoever to come to such conclusion and more particularly after
discussing the materials as submitted by the petitioner. Thus, clearly there was patent non-application of mind on reaching such conclusion without recording any
reason whatsoever to reject the petitioner’s appeal and maintain cancellation of registration.
Observation by the Court on the impugned order- SCN itself was defective, as it did not set out any reasons/grounds which could be responded by the
petitioner. The reasons which were furnished, as noted, were undoubtedly vague. It was difficult to conceive as to how such contents of the notice could be
responded when no reasons to support such allegation were provided in the SCN. The order passed cancelling the petitioner’s registration was inherently defective,
as again no reasons were furnished dealing with the case as set out by the petitioner in the reply as filed to the SCN. There was no discussion whatsoever on any
of the documents. Things did not stop at this, as the appellate authority before whom all such materials were furnished again proceeded on total non-application
of mind of the materials before it. Several documents although were submitted for consideration of the appellate authority, there was not a semblance of
consideration of any of those documents, much less any discussion on the documents to consider the case of petitioner.
Held by the Court-The Court set aside the order and opined that that time and again the department was not required to be told by the Court as to what would be
the position in law as also the correct approach in law, the officers need to follow. The Courts are being repeatedly called upon to adjudicate similar issues. There
had to be a sense of responsibility and accountability, any mechanical approach in this regard, even to justify such action, could not be the stand of the department.
Cases Referred- C.P. Pandey & Co. vs. Commissioner of State Tax (2023) 10 Centax 11 (Bom.), Monit Trading Pvt. Ltd. vs.UOI (2023) 8 Centax 248 (Bom.),
Ramji Enterprises & Ors. vs. Commissioner of State Tax & Ors. WP No. 277 of 2023 dated 10.07.2023, Nirakar Ramchandra Pradhan vs. UOI & Ors, WP No.
2534 of 2023 dated 11.09.2023, Lakkad Brothers vs. State of Gujarat (2023) 4 Centax 364 (Guj.), Quality Traders vs. Yogesh Kumar (2023) 10 Centax 150 (Del.)
and DRS Wood Products vs. State of Uttar Pradesh 2022(64) G.S.T.L. 132 (All.)

Part-97-One Pager Snapshot to the Latest Cases on Section 29, 50, 67, 75, 107, 122 and 140

-Opportunity of being heard be provided before an adverse order
-No Interest and Penalty for Transitional credit which could not have been availed due to technical glitches on portal maintained by the Government
-Appeal could not be dismissed as certified copy of order not produced
-No roving or fishing inquiries be conducted under the garb of authorisation U/Sec 67
-Opinion for cancellation of registration cannot be formed by DGGI

S.No

Section

Case Subject

Case

Held

1

Section
75

Opportunity
of being
heard be
provided
before an
adverse
order

Tvl. Sree Amman
Metal Works v. State
Tax Officer
(Adjudication)-2
[2023] 154
taxmann.com 496
(Madras)

Petitioner challenged the impugned orders, apart from questioning them on merits, because of the objections filed by the petitioner were not taken
note of by the respondent and non-speaking orders was passed.
The Court observed that reading of the impugned orders did not imply the reasoning of the authority concerned. That apart, though adverse orders
were being passed against the petitioner, no opportunity of personal hearing was afforded to him, which was contemplated under section 75(4) of
the Central Goods and Services Act, 2017. Therefore, on this limited ground, without addressing the merits of the case, the Court allowed Writ
Petitions and set aside the impugned orders and remitted the matter back to the respondent

2

Section
140

No Interest
and Penalty
for
Transitional
credit which
could not
have been
availed due
to technical
glitches on
portal
maintained
by the
Government

Nithya Packaging (P.)
Ltd. v. Assistant
Commissioner of GST
and Central Excise
[2023] 154
taxmann.com 494
(Madras)

Petitioner faced difficulty in transitioning ITC on capital goods and communicated with Department and officials named on Web Portal. However,
he was unable to transfer the transitional credit. Thereafter, petitioner decided to avail such Credit. The credit was confirmed by Sanction Order
(Tran-1 Credit) dated 20-2-2023. Meanwhile, proceedings were initiated to recover the amounts from the petitioner, which culminated in the
impugned order. By the impugned order dated 28-3-2023, officer had imposed penalty and interest on the petitioner under section 50 and Section
73(9) read with Section 122(2)(a). The impugned order was passed as petitioner filed a revised return in terms of the decision of Bombay High Court
in Chep India Private Limited v. Union of India and others dated 27-6-2022 and decision of the Hon'ble Supreme Court in Union of India and
another v. FILCO Trade Centre Private Limited dated 22-7-2022, claiming ITC, which was earlier sanctioned by the Sanction Order (Tran-1 Credit)
dated 20-2-2023. The only point that arose for consideration was whether petitioner could be mulcted with interest and penalty even though the
credit which was taken was sanctioned and merely because the petitioner had also filed returns to transition the same credit.
The Court observed that petitioner was entitled to Rs. 11,06,396/- on the eve of implementation of GST with effect from 1-7-2017 and by Sanction
Order (Tran-1 Credit) dated 20-2-2023, proper officer had confirmed that petitioner was entitled to the aforesaid transitional credit. Therefore, merely
because petitioner had filed subsequent return and had given up the same would not mean that petitioner could be subjected to pay interest and
penalty. The difficulty arose only on account of technical glitches in the web portal maintained by the Central Government at the time of
implementation of GST. The petitioner cannot be penalized as the credit itself was allowed after the implementation of GST by Sanction Order (Tran1 Credit) dated 20-2-2023. Therefore, order seeking to impose interest and penalty on the petitioner was held to be unsustainable and thus quasshed

3

Section
107

Appeal could
not be
dismissed as
certified
copy of order
not produced

KPMG India (P.) Ltd.
v. Joint Commissioner
of State Tax (Appeals)
[2023] 154
taxmann.com 492
(Punjab & Haryana)

Petitioner contended that they had filed appeal along with digitally uploaded order on the common portal and hence, appeal could not be dismissed
on the ground that certified copy was not attached with the appeal.
The Court observed that since uploaded copy was already part of the appeal, it would amount to substantial compliance of Rule 108 and Joint
Commissioner would not dismiss the appeal by impugned order on the ground that appellant had not submitted certified copy of order impugned
therein. Since fact was further clarified by notification dated 25-1-2023 whereby it has been clarified if an order against which appeal has been filed
is uploaded on common portal, then final acknowledgement shall be considered as date of filing of the appeal. The writ petition was thus allowed

4

Section 67

No roving or
fishing
inquiries be
conducted
under the
garb of
authorisation
U/Sec 67

Bhagat Ram Om
Prakash Agro (P.) Ltd.
v. Commissioner of
Central Tax, GST
[2023] 154
taxmann.com 491
(Delhi)

Petitioner contended that the search authorisation was illegal as the same was issued without proper officer having any reason to believe that
conditions as specified under Section 67(1) of CGST Act, 2017. Petitioner stated that search was conducted in view of directions issued by the
Special Judge (P.C. Act) to Income Tax Department, GST Department, and Enforcement Directorate to check source of Rs. 50,00,000/- received
by petitioners. Petitioner no.2 purchased a property from one Mr. Rajesh Kumar Anand for a sum of Rs. 50,00,000/-. Mr. Rajesh Kumar Anand had
deposited the said consideration in a fixed deposit receipt which was offered as a collateral for securing the bail of Sh. Kapil Wadhawan and others.
The Court issued notice to the revenue but at the same time observed that they had serious reservations whether any such roving and fishing
inquiry under the CGST Act, 2017 could have been directed to be conducted by the Special Judge. Further, the proper officer can authorise the
search only if the conditions specified in Section 67 of the Act are fulfilled.

5

Section
29

Opinion for
cancellation
of
registration
cannot be
formed by
DGGI

Muhammad Salmanul
Faris k v.
Superintendent,
CGST & Central
Excise [2023] 154
taxmann.com 414
(Kerala)

Deputy Director, DGGI, Kochi Zonal Unit has requested the Range Officer, Ottapalam to cancel GST registration of the petitioner and petitioner
was given a personal hearing by the proper officer on 27-3-2023. However, petitioner did not appear on the said date and new date was fixed on
19-4-2023. The petitioner did not appear for the said hearing on 19-4-2023 and therefore, impugned order for cancellation of the GST registration
of petitioner was passed. The petitioner contended that when DGGI Cochin Unit has already taken a decision and directed for cancellation of the
GST registration of the petitioner, the competent authority could not have taken a decision contrary to the said direction issued by the higher authority.
The Court observed that considering the aforesaid submissions, there was no denial of fact that the DGGI, Kochi Zonal Unit has already taken the
decision for cancelling the GST registration of the petitioner and the proper officer was only required to form the formalities and could not have taken
an independent decision. Therefore, the impugned order was set aside and remanded back for decision on merits. However, the said order was not
revived further for a period of one month

Part-90-One Pager Snapshot to the Latest Cases

-Rejection of Application of New Registration on account of alleged short payment of tax in the earlier registration
-SCN to indicate as to what fraud is alleged to have been committed and which statement made by petitioner was alleged to be a misstatement; and which fact was suppressed by the petitioner.
-SCN did not clarify whether registration was proposed to be cancelled on account of fraud or wilful misstatement or suppression of facts as all three reasons indicated.
-order of provisional attachment ceases to subsisT on Passing of Final assessment order under section 74,
-Nature and complexity of the acts and the interest of revenue to be considered before passing an order for Audit under Section 66

S.No

Section

Case Subject

case

Held

1

Section
29 and
30

Rejection of
Application of New
Registration on
account of alleged
short payment of
tax in the earlier
registration

Gopal Selvam v.
Assistant
Commissioner
(ST) [2023] 154
taxmann.com
337 (Madras)

Petitioner failed to file returns in time and therefore, the petitioner's registration was cancelled on 25.01.2022. Thereafter, petitioner had filed returns for the entire
period on 24.04.2023 in GSTR-10. Petitioner also filed a fresh application for registration on the same day, which was rejected. The department contended that from
period beginning from 2017, petitioner has debited tax liability only from ITC and only a sum of Rs.59,448/- has been paid in cash during the period in dispute.
The Court held that denial of fresh registration to petitioner cannot be justified particularly considering the fact that the petitioner will get into business
one way or the other for his livelihood. By declining registration, the Department is going to be the looser. There will be a leakage of revenue as the
petitioner will continue to do business without registration.
Cases Relied Upon- M/s.Suguna Cutpiece Center Vs. Appellate Deputy Commissioner (ST) (GST), 2022 (2) TMI 933

2

Section
29 and
30

SCN to indicate as
to what fraud is
alleged to have
been committed
and which
statement made by
petitioner was
alleged to be a
misstatement; and
which fact was
suppressed by the
petitioner

Frequent
Logistics
Services (P.) Ltd.
v. Commissioner
Goods &
Services Tax
Department
[2023] 154
taxmann.com
336 (Delhi)

Impugned order was passed pursuant to SCN which indicated that petitioner's GST Registration was proposed to be cancelled for the reason that "In case,
Registration has been obtained by means of fraud, wilful misstatement or suppression of facts." Revenue contended that petitioner's GST registration was cancelled
as it was not found to be existing at its principal place of business.
The Court held that SCN was cryptic and did not afford the petitioner any sufficient information as to the grounds on which the petitioner's registration
was proposed to be cancelled. Although, SCN alleged that registration was obtained by fraud, wilful misstatement or suppression of facts, there was no
material to indicate as to what fraud is alleged to have been committed; which statement made by the petitioner was alleged to be a misstatement; and
which fact was suppressed by the petitioner. It was also not clear whether petitioner's registration was cancelled on account of fraud, wilful misstatement
or suppression of facts, since all three reasons were mentioned. SCN did not disclose that petitioner's Registration was proposed to be cancelled with
retrospective effect. The impugned order also did not reflect any ground to support the decision to cancel GST registration with retrospective effect. For
the reason that, petitioner was not found existing on its place of business, Court observed that petitioner had made an application for change of its registered principal
place of business. The application was allowed and amended certificate of GST Registration was issued. Admittedly, concerned officer had inspected the old premises
and not the new premises as reflected in the certificate of the GST registration. Thus, impugned order cancelling the petitioner's GST registration was set aside

3

Section
29 and
30

SCN did not clarify
whether registration
was proposed to be
cancelled on
account of fraud or
wilful misstatement
or suppression of
facts as all three
reasons indicated.

Green Polymers
v. Union of India
[2023] 154
taxmann.com
330 (Delhi)

Petitioner was issued a SCN proposing to cancel GST registration on the ground that it was obtained by 'fraud, wilful misstatement or suppression of facts'.
However, without referring to any of the material, as provided by petitioner, GST registration was cancelled. Petitioner immediately applied for revocation of
cancellation which was allowed. Notwithstanding that petitioner's GST registration was restored; respondent issued impugned SCN again and again cancelled
petitioner's registration.
The Court held that the impugned SCN apart from alleging that registration was obtain by fraud, wilful misstatement or suppression of facts - which was also the
ground on which the petitioners' GST registration was cancelled in the earlier round, did not indicate any specific reason(s) for proposing cancellation OF registration.
Impugned SCN was thus incapable of eliciting any meaningful response as it did not indicate as to what was the fraud allegedly perpetuated by the
petitioner or the wilful misstatement allegedly made. It also did not indicate as to which material fact was suppressed by the petitioner. It is also not clear
whether the petitioner's GST registration was proposed to be cancelled on account of fraud or wilful misstatement or suppression of facts as all three
reasons indicated.

4

Section
83

Order of provisional
attachment ceases
to subsist, once
Final assessment
order passed under
section 74

Rina Jaiswal v.
Commissioner of
Central Tax
[2023] 154
taxmann.com
329 (Telangana)

Petitioner's bank accounts and properties of petitioner were provisionally attached vide orders dated 15-7-2022 under section 83 of CGST Act. Subsequently
order-in-original passed under Section 74 were challenged by way of filing of appeal under section 107 of CGST Act, which was pending.
The Court relying upon the decision of Supreme Court in the matter of Radha Krishan Industries v. State of Himachal Pradesh 2021(48) G.S.T.L 113, held
that once a final order of assessment had been passed under section 74, order of provisional attachment must cease to subsist.

5

Section
66

Nature and
complexity of the
acts and the
interest of revenue
to be considered
before passing an
order for Audit
under Section 66

Rajkamal & Co. v.
Union of India
[2023] 154
taxmann.com
284 (Gauhati)

It was contended by the petitioner that competent authority before passing an order for Special Audit under Section 66, with prior approval of the Commissioner,
has to form an opinion that the value has not been correctly declared or the credit availed is not within the normal limits. In order to reach such an opinion, there are
two aspects which are to be considered as condition precedent, firstly, the nature and complexity of the acts; and secondly, the interest of revenue. The two condition
precedents were contended to be found apparently absent in the impugned order. Therefore, it is clear non-application of mind on the part of the said authority and
thus, arbitrary.
The Court directed that having regard to the provisions of Section 66 and Section 107 of the CGST Act, 2017 vis-à-vis the contents of the impugned order
dated 16-11-2020 which prima facie did not reflect about consideration of the two aspects mentioned in Section 66 of the CGST Act, 2017, it was provided
that the respondent authorities shall not take any coercive action against the petitioner till the returnable date

Part-64-One Pager Snapshot to the Latest Cases

-Notification No. 9/2022 read with Circular No. 181/13/2022 dated 10th Nov 2022 Challenged putting restriction on applications filed for seeking refund on category of goods added by way of the stated notification
-If neither consignor/ consignee are treated as owner, proper officer before levy of penalty is required to decide as who then should be the owner of the goods.
-SCN for cancellation of registration derives response from the petitioner; “So what is fraud in this transaction?” liable to be set aside as it was bereft of particulars
-Manual Refund Application to be processed as Rule 97A does not bars it and Circular cannot takeaway plain effect of Rule

S.No

Section

Case Subject

Case

Held

1

Section
54

Notification
No. 9/2022
read with
Circular No.
181/13/2022
dt 10th Nov,22
Challenged

Shree Proteins
(P.) Ltd.
v. Union of
India [2023] 153
taxmann.com

Notification No. 9/2022 Dated 18th July 2022 was issued to enlarge scope of N.No. 5/2017, whereby specified HSNs in which petitioner company's
outward supplies were covered were added to the restricted category. It was contended that not only Notification shall have prospective effect but by
way of Circular No. 181/13/2022 GST dated 10th Nov, 2022, it has been incorrectly clarified that restriction imposed by the Notification would be applicable
in respect of all refund application filed on or after 18-7-2022 and would not be applied to the refund application filed before 18-7-2022. Thus, it was
submitted that the said Circular is against the provisions of law contained in Section 54 of the Act, whereby, the period of two years to file an application
for refund is given. It was further submitted that no retrospective effect can be given by way of the said Circular to the Notification. Reliance was placed
on doctrine of legitimate expectation. High Court observed that issue involved in the petition required consideration and notice was issued.

2

Section
129

If neither
consignor/
consignee are
treated as
owner, proper
officer before
levy of penalty
is required to
decide as who
should be
owner of
goods

G M R
Enterprise v.
State of U.P.
[2023] 153
taxmann.com
407 (Allahabad)

Goods were intercepted during transportation within the state of U.P and petitioner contended that such goods were accompanied by tax invoices and
e-way bill, which clearly indicated the ownership of petitioner over the goods in transit. The department nevertheless proceeded to issue notices in the
name of the driver and subsequently orders determining liability of tax have been passed on the premise that the consignee had not accepted the goods
to have been purchased by it. The department, therefore, has treated the goods to be not traceable to a registered dealer.
High Court prima facie was of the opinion that while the goods were in ' transit it accompanied the tax invoice and e-way bill which indicated the goods
to be owned by the petitioner. The order in no manner reflected application of mind on the question as to whether the petitioner was the owner of the
goods in question or not? The circular dated 13-3-2019 clearly stipulated that, in such an eventuality, if the goods are accompanied with the invoices
then either the consignor or the consignee ought to be deemed to be the owner of the goods. Otherwise, proper officer is required to determine as
to who should be declared as owner of the goods. In the facts of the case, such consideration on the question as to ' who is the owner of the
goods was held to be lacking. The department, therefore, was held not to be justified in proceeding to hold the goods not to belong to a
registered dealer without dealing with the question of ownership of such goods in transit and High Court relying on its earlier decision in Writ
Tax No. 178 of 2023 also stated that the question with regard to ownership of the goods shall be determined before levying penalty etc

3

Section
29 and
Section
30

SCN derives
response; "So
what is fraud
in this
transaction?"
liable to be
set aside

Cuthbert
Oceans LLP v.
Superintendent
of CGST [2023]
153
taxmann.com
410 (Delhi)

Concerned Officer issued the SCN proposing to cancel the petitioner's registration for the following reasons: "Section 29(2)(e)-registration obtained
by means of fraud, willful misstatement or suppression of facts". Apart from the aforesaid reason, the impugned show-cause notice did not disclose
any other reason or particulars for proposing the adverse action against the petitioner. The petitioner was called upon to furnish a reply to the impugned
show-cause within a period of seven days from the date of service of impugned SCN; it further directed the petitioner to appear before the respondent.
High Court held that the impugned SCN was bereft of any particulars. The petitioner's response to the impugned show-cause notice (although
sent belatedly) indicates that the petitioner has referred to the transactions carried out by him and had quizzed the respondent; "So what is
fraud in this transaction?". This question resonates with us as well. The impugned show-cause notice was set aside.

4

Section
54

Manual
Refund
Application to
be processed
as Rule 97A
does not bars
it and Circular
cannot
takeaway
plain effect of
Rule

Desai Brothers
Ltd. v. State Of
U.P. [2023] 153
taxmann.com
412 (Allahabad)

Order of the Appellate Authority was in favour of the Appellant and neither, the principal amount Rs. 47,32,040/- has been refunded to the petitioner nor
any interest has been paid thereon. The State respondents were of the view that such refund may have been granted only if the petitioner had made an
application for refund on the online form RFD-01. The petitioner stated that he was effectively prevented from moving the online application owing to
technical glitches that existed on the GSTN portal thus they had moved a physical application to claim the refund within the statutory period of 60 days.
High Court observed that the appeal order dated 18-3-2019 has long attained finality. It clearly contained a recital to refund the amount of Rs.
47,32,040/-Therefore, by way of a right, that amount cannot be retained by the State. Only procedural requirements were required to be
completed for its refund to be made. So long as Rule 97A remains in the Rule book, Circular cannot take away the plain effect of the said Rule
97A. Therefore, Circular could only provide a directory or an optional mode, to process a refund claim. Therefore, the revenue authorities were
obligated in law to deal with that application in terms of Section 54(7) of the Act, within a period of 60 days. Failing that, the revenue further became
exposed to discharge interest liability on the delay in making the refund at the statutory rate from the end of 60 days from 2-6-2019.
Cases Referred- Savista Global Solutions (P.) Ltd. v. Union of India [2021] 132 taxmann.com 144 All.) and Alok Traders v. Commissioner of Commercial
Taxes [2022] 147 taxmann.com 447

Part-62-One Pager Snapshot to the Latest Cases

-Giving Date of Hearing before the due date of reply is incorrect
-Non-Appearance on the date of Hearing
-Petitioner cannot be left remediless as order of Cancellation of Registration not available on Portal
-Cash Credit Account cannot be attached for recovery of Liabilities
-Duty of taxpayer to verify Portal for receipt of notice and order

S.No

Section

Case Subject

Case

Held

1

Section
73

Giving Date
of Hearing
before the
due date of
reply is
incorrect

HT Media Ltd.
v. Union of India [2023] 153
taxmann.com 339 (Delhi)

The petitioner was to submit its reply by 1-9-2022 and was also informed of a personal hearing scheduled on 19-8-2022. High Court was
unable to appreciate the procedure of affording the petitioner an opportunity to be heard prior to the expiry of the time afforded
to him for responding to the impugned show cause notice. It was observed that an opportunity to be heard is not required to be a mere
formality. It is to enable the noticee to canvas its case before the concerned officer. The purpose of eliciting a reply to the show-cause
notice is to enable the noticee to place his stand on record. Thus, it was apposite that noticee be permitted to file a reply prior to being
afforded a hearing. The impugned order was set aside and concerned officer was directed to consider the petitioner's response and pass
a fresh order after affording the petitioner due opportunity to be heard

2

Section
73 and
Section
74

NonAppearance
on the date
of Hearing

Tvl. RIDA Industries v.
Assistant Commissioner
(ST) [2023] 153
taxmann.com 338 (Madras)

The petitioner neither had asked for any personal hearing and made submission on merits, though without furnishing any details. The High
Court observed that the objection that petitioner was not given an opportunity of hearing cannot be countenanced as the
petitioner had given a reply but failed to appear before the respondent in response to notice in DRC-01 issued under Rule 100 of
the Tamil Nadu Goods and Services Taxes Rules, 2017 on 26-3-2021. In view of the above, there was no merit in the present writ
petition. Therefore, writ petition was held to be liable to be dismissed.

3

Section
29 and
Section
30

Petitioner
cannot be
left
remediless
as order of
Cancellation
of
Registration
not
available on
Portal

Ashok Kumar Jha v. Union
of India [2023] 153
taxmann.com 335
(Calcutta)

Order for cancellation of registration was not available on the portal and petitioner could not even file application for revocation against the
same during suspension. Further another downloaded copy from the official portal of the department reflected the status of the case in
question that it is at the stage of show-cause notice of cancellation for registration while the department Counsel produced a downloaded
copy from portal showing that registration of the petitioner had been cancelled. Department Counsel submitted that they have written to
GSTIN to ascertain as to for whose lapse and how it happened that the order of cancellation is not available in the portal.
The High Court observed that order of cancellation of registration of petitioner was neither available on the portal nor revenue was able to
hand over a copy of the same and nor petitioner produced hard copy of the same before the Court also. The Court was of the considered
view that petitioner cannot be let remediless for the fault in the system and petitioner can't be deprived of its right to make
application either cancellation for revocation or by filing appeal. Revenue was directed to hand over hard copy of the order in original
cancelling the petitioner's registration and petitioner can thereafter file application for revocation of the same basis upon aforesaid hard
copy to be supplied

4

Section
83

Cash Credit
Account
cannot be
attached for
recovery of
Liabilities

Anjani Cotton Industries v.
Principal Commissioner of
CGST [2023] 153
taxmann.com 334 (Gujarat)

The High Court stated that on more than one occasion, Court had deprecated the practice of the respondent authorities in seeking
to enforce tax liabilities by provisionally attaching cash credit account. The petitioner was accorded ad-interim relief till the returnable
date of notice.
Cases Referred- Manish Scrap Traders v. Principal Commissioner reported in (2022) GSTL, 482 (Guj), Vinodkumar Murlidhar
Chechani v. State of Gujarat reported in 2021 (124), taxmann.com, 272 (Guj).

5

Section
169

Duty of
taxpayer to
verify Portal
for receipt of
notice and
order

Koduvayur Constructions
v. Assistant Commissioner
[2023] 153 taxmann.com
333 (Kerala)

The petitioner had been served with order dated 14-10-2022 on the GST portal, calling him to pay an amount of Rs. 19,22,566/-. It was
contended that there was no effective service of notice on petitioner by the respondents. The High Court observed that assessment
order was made available on the common portal and thus contention of the petitioner was untenable in view of the alternative
modes of service provided under Sec.169 (1) of the CGST Act and it was bounden duty of the petitioner to have verified its
common portal that is made available as per the provision

Part-51-One Pager Snapshot to the Latest Cases

-Opportunity of being heard to be given before cancellation of registration
-Ex-Parte Assessment order set aside as the petitioner had valid ground for seeking adjournment
-Opportunity of being heard to be provided in pursuance of provision of Section 75(4)
-Onus is on the Revenue to prove that the amount collected voluntarily during search was not in violation of Article 265 of Constitution of India

S.No

Section

Case Subject

Case

Held

1

Section
29 and
Section
30

Opportunity of
being heard to
be given
before
cancellation of
registration

VIP Chem
Traders v.
Union of India
[2023] 152
taxmann.com
159 (Gujarat)

The petitioner received notice dated 06.12.2022 inter alia stating that registration of the petitioner was liable to be cancelled due to "returns furnished
by you under section 39 of the Central Goods and Services Tax Act, 2017". The petitioner was called upon to file reply within 30 days.
High Court set aside the order by stating that there is no gainsaying that the notice since was issued for cancelling the GST registration of the
petitioner, if the final order against the petitioner was to be adverse, it will operate to the detriment and prejudice to the petitioner. Therefore, the
process of adjudication post issuance of show-cause notice would necessitate observance of natural justice and providing reasonable
opportunity to the petitioner to defend his case and submit appropriate facts and details in relation to the show-cause notice

2

Section
73 and
Section
74

Ex-Parte
Assessment
order set
aside as the
petitioner had
valid ground
for seeking
adjournment

EPMS Property
Services (P.)
Ltd. v. State
Tax Officer
[2023] 152
taxmann.com
171 (Madras)

Notices were issued on 26.08.2019 calling for various particulars for finalizing the assessments. Petitioner could not attend the personal hearing as
its authorised representative was ill. Hence, the orders of assessment came to be passed, without further reference to the petitioner. The petitioner
filed statutory appeals challenging the assessments. The appeals were filed on 20.02.2020. Inter alia, the appeal memorandum contained an error,
in that, the date of receipt of the order was stated as '21.10.2019' instead of 29.09.2019.
The High Court held that orders of assessment suffer from violation of principles of natural justice and the exchange of correspondence between the
parties establishes that the petitioner was cooperating with the proceedings for assessment. This, and the request contained in letter dated
10.09.2019, lead to the conclusion that orders were set aside and the petitioner should be afforded an effective opportunity of hearing and
has been denied the same prior to passing of the orders impugned.

3

Section
74 and
Section
75

Opportunity of
being heard to
be provided in
pursuance of
provision of
Section 75(4)

Sri Krishna
Timbers v.
State Tax
Officer [2023]
152
taxmann.com
173 (Madras)

The petitioner had filed replies on dated 17.12.2020 against the SCN and in conclusion they requested for a personal hearing prior to finalization of
the proceedings. This request was totally ignored by the assessing officer who has instead proceeded to pass the impugned order without hearing
the petitioner. The High Court observed that impugned orders were passed under the provisions of Section 74 of the Act and the officer is, in passing
the orders, bound by the general provisions relating to determination of tax as set out under Section 75 of the Act.
The High Court set aside the impugned orders of assessment and the assessment to be carried out after providing an opportunity of
hearing.

4

Section
67

Onus is on the
Revenue to
prove that the
amount
collected
voluntarily
during search
was not in
violation of
Article 265 of
Constitution of
India

William E
Connor
Associates &
Sourcing (P.)
Ltd. v. Union of
India [2023] 152
taxmann.com
174 (Punjab &
Haryana)

The petitioner contended that a search was conducted on 23.12.2020 and 24.12.2020. In the said search, the petitioners were made to deposit an
amount of Rs.83,89,196/- on 06.01.2021, under protest and on the assurance that it would be reverted in the input tax credit of the petitioner-company.
The petitioners then requested the respondents to reinstate the aforementioned amount in their Input Tax Ledger by sending a letter. But the request
of the petitioners was not considered even though a period of two years had lapsed. The petitioners alleged that no proceedings under Section 74(1)
of the CGST Act had been initiated by the revenue, but still the input tax credit was not reverted in their ledger.
The High Court held that any amount deposited voluntarily by the petitioner during search would not amount to collection of tax under
Article 265 of the Constitution and an amount collected without authority of law, would not amount to collection of tax and the same would
amount to depriving a person of his property without any authority of law and would infringe his rights under Article 300A of the
Constitution of India as well. Since, the respondents failed to place any material on record to show that they got deposited amount of Rs.83,89,196/-
from the petitioners with any authority of law, therefore, the petition as allowed and a direction was given to the respondents to refund the amount of
Rs.83,89,196/- along with the interest @ 6% from the date of filing of the petition.
Cases Referred- Diwakar Enterprises Pvt Ltd. v. Commissioner of CGST and Anr. CWP No.23788 of 2021 decided on 14.03.2023, Modern
Insecticides Ltd and Anr. v. Commissioner, CGST and Anr. CWP No.8035 of 2021decided on 19.04.2023, Vallabh Textiles v. Senior Intelligence
Officer and others, 2022 SCC Online Del 4508, Union of India and others v. Bundl Technologies Pvt Ltd and others, ILR 2022 Karnataka 3077