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

S.No

Section

Case Subject

Case

Held

1

Section 67
and Section
54

Refund of
Amount
collected
during the
search

Modern Insecticides Ltd. v.
Commissioner, Central Goods
and Service Tax [2023] 153
taxmann.com 548 (Punjab &
Haryana)

Question for consideration, was whether amount paid by the petitioner on 16-1-2021, could be retained by the department without
issuing the show cause notice under section 74 (1) of the CGST Act that too after expiry of two years.
High Cout observed that amount was deposited from the date when search was conducted. However, no notice under section 74
(1) had been issued. Though department can initiate proceedings under section 74 (1) by issuing notice within the period of limitation,
they cannot retain the amount of Rs. 1.54 crore deposited by the petitioner, which as per department was voluntary. The amount
was deposited during search and as per judgment passed in Vallabh Textiles' case, this deposit cannot be taken to be voluntary.
Since no proceedings under section 74 (1) were initiated till date, as per Rule 142 (1A), the department cannot even issue Form
GST DRC-01A to ask the petitioner to make payment of tax, interest and penalty due. Therefore, a direction was given to return the
amount of Rs. 2.54 crores along with simple interest at the rate of 6% per annum.
Cases Referred-Vallabh Textiles v. Senior Intelligence Officer and others, 2022 SCC OnLine Del 4508, Bhumi Associate v. UOI,
SCA No. 3196 of 2021.

2

Article 226
of
Constitution

Extraordinary
circumstances
not made out
for Article 226

Muhammad Saleem
Shemsudeen v. Enforcement
Officer [2023] 153
taxmann.com 547 (Kerala)

The writ petition was dismissed stating that the Court did not any extra ordinary circumstances made out, to entertain the writ petition
by exercising the plenary powers of this Court under Article 226 of the Constitution of India. It was left up to the petitioner to invoke
his statutory remedies as provided under the GST Acts.

3

Section 29
and Section
30

No
retrospective
Cancellation if
notice does
not provides
so

Virender Kumar Jain v. Delhi
GST Officer, Ward 76 [2023]
153 taxmann.com 546 (Delhi)

The petitioner was not aggrieved by cancellation of his GST Registration; he was aggrieved because the registration had been
cancelled with retrospective effect from 1-7-2017
High Court noted that the show cause notice dated 16-2-2021 did not indicate that the concerned officer had proposed to
cancel the same with retrospective effect. SCN also did not indicate that any inquiries were made, which revealed that the
petitioner had never existed at his declared place of business. The order was an unreasoned order completely disregarding that the
petitioner had filed an application dated 20-11-2020 for cancellation of his GST Registration and disclosed that he had stopped
carrying on business. Thus, the question of petitioner being available at principal place of business did not arise. The High Court
allowed the petition and directed that cancellation of GST Registration shall be effective from 20-11-2020.

4

Section 29
and Section
30

Cancellation
of Registration
by a Cryptic
Notice and
Equally
Cryptic Order

Ottimo Visuals v.
Commissioner of GST [2023]
153 taxmann.com 545 (Delhi)

The petitioner was not aggrieved by cancellation of his GST Registration; he was aggrieved because the registration had been
cancelled with retrospective effect from 1-7-2017
High Court noted that the show cause notice dated 16-2-2021 did not indicate that the concerned officer had proposed to
cancel the same with retrospective effect. SCN also did not indicate that any inquiries were made, which revealed that the
petitioner had never existed at his declared place of business. The order was an unreasoned order completely disregarding that the
petitioner had filed an application dated 20-11-2020 for cancellation of his GST Registration and disclosed that he had stopped
carrying on business. Thus, the question of petitioner being available at principal place of business did not arise. The High Court
allowed the petition and directed that cancellation of GST Registration shall be effective from 20-11-2020.

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

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

S.No

Section

Case Subject

Case

Held

1

Section
15

Manufacture and supply
Precast Manholes and Rises
ON e Cement, & Steel (TMT
& Bars) supplied by the
recipient is supply of goods.
The activity does not fall
within the scope of Job Work.
The price to be charged from
the recipient i.e. M/s Larsen
& Toubro Ltd by the applicant
for supply of precast manhole
shall not the be transaction
value in terms of Section
15(1)
The material which are to be
made available free of cost
by the recipient and are not
within the scope of applicant
for supply of precast manhole
shall form part of the
transaction value for the
purpose of levy of ta

Natani Precast [2023]
151 taxmann.com 55
(AAR- RAJASTHAN)

Applicant had received request for quotation for supply of precast Manholes by M/s Larsen & Toubro Ltd. Two basic
ingredients i.e Cement, & Steel (TMT & Bars), used for manufacturing of precast manholes were to be supplied by M/s
Larsen & Toubro Ltd.
Authority held that applicant had intention to manufacture and supply Precast Manholes and Rises and manufacturing
process submitted by the applicant itself reflected that the applicant was engaged in manufacturing of goods. Thus, the
instant transaction of supply of Precast Manholes and Rises was of supply of goods and not a supply of services.
Authority further held that since the applicant was involved in the manufacturing of Manholes and Rises and it could not be
termed as any treatment or process on the goods belonging to the recipient i.e. service of job work, even if inputs were
being supplied free of cost and these inputs wholly were being used in manufacturing of resultant goods and termed as
supply of goods not services. The authority further distinguished Circular No. 47/21/2018-GST, dated 8-6-2018 as it
pertained to an act of modification and treatment on a good wherein in the instant case of applicant, new goods were
manufactured from raw materials and not the work done on the goods belongs to recipient.
Authority further observed that since applicant is to manufacture and supply Precast Manholes and Rises as per specific
order from recipient but cement and iron was to be supplied by recipient on free of cost whereas if recipient were not to
supply main ingredients then it would have been borne by applicant. Thus, Free of cost supply of main ingredients from
recipient was nothing but mutual understanding between both parties which do not debar them from the essence of supply
of goods and consideration received under GST. Thus, it was held that by such type of adjustments applicant will receive
the consideration in barter. I.e. one consideration in the shape of price as per agreement and second in the shape of free
issue of essential inputs like cement and steels. Hence price to be charged from recipient i.e. M/s Larsen & Toubro Ltd by
the applicant for supply of precast manhole shall not be transaction value in terms of Section 15(1) & 15(2) of the CGST /
RGST Act 2017 & material which are to be made available free of cost by the recipient and are not within the scope of
applicant for supply of precast manhole shall form part of the transaction value for the purpose of levy of tax

2

HSN
9992

Supply of the aircraft type
rating training services to
commercial pilots is not
exempt from levy of GST

CAE Flight Training
(India) (P.) Ltd [2023]
151 taxmann.com 54
(AAR- KARNATAKA)

The supply of the aircraft type rating training services to commercial pilots, in accordance with the training curriculum
approved by the Directorate General of Civil Aviation for obtaining the extension of aircraft type ratings on their existing
licenses, do not result into a qualification as the applicant imparts training and issues only course completion certificate and
thus the impugned services are not covered under SI. No. 66 (a) of the Notification No. 12/2017-Central Tax (Rate) dated
28.6.2017 and thus are exigible to GST under the CGST/ KGST Act 2017

3

Section
29 and
Section
30

Since alternative remedy was
available therefore the High
Court relegated the matter to
concerned authority

Syed Wasim Rohman
v. State of Assam
[2023] 151
taxmann.com 53
(Gauhati)

The petitioner approached the High Court for revocation of cancellation of registration. The High Court observed that
Section 30 of Assam GST Act, 2017 provides alternative and efficacious remedy to the petitioner to apply for revocation of
the cancellation of the registration and thus the Court was of the considered opinion that the petitioner be relegated to the
concerned designated authority for availing remedy as prescribed under the provision of section 30(1) of the Assam GST
Act, 2017

S.No

Section

Case Subject

Case

Held

1

Section
129 and
Section
107

Once order is
stayed, officer
can release the
goods subject to
such other
safeguards that
may be imposed
by the appellate
authorities
under the
respective Acts

Haresh Kumar
v. Assistant
Commissioner
(ST) [2023] 150
taxmann.com
380 (Madras)

An order of detention in Form GST MOV-06 was issued. Petitioner filed appeal under Section 107 of the CGST Act, 2017 before the Appellate
Authority and paid 25% of the disputed penalty, whereas, respondents had imposed penalty equivalent to 100% value of goods that was detained.
It was contended that once there was a pre-deposit of the amount in terms of Section 107(6), the respondents ought to have released the goods.
The High Court held that once order is stayed, the respondents can release the goods subject to such other safeguards that may be imposed by
the appellate authorities under the respective Acts. The very purpose of fixing the mandatory pre-deposit is to do away with the procedure of
granting stay after hearing, which was delaying the disposal of the appeal earlier. The Officer who detained the goods becomes functus officio,
once there is a mandatory pre-deposit, the order has no force and all further recovery proceedings will be subject to the final outcome of the
appeal. The High court directed the petitioner to deposit the maximum penalty of 200% of the tax to safeguard the interest of the revenue.
Cases Referred- TCI Freight v. Assistant Commissioner (ST) [2022] 143 taxmann.com 115 (Madras

2

Section
73 and
Section 6

Second Officer
cannot initiate
proceedings by
issuing DRC-01
and passing the
order on the
same matter
which is already
seized by the
first officer by
issuing DRC01A

SSB Petro
Products v.
Assistant
Commissioner,
State Tax
[2023] 150
taxmann.com
381 (Calcutta)

In the instant case, issue before the High Court was whether an officer (referred as “second officer”) could have initiated fresh proceedings by
issue of DRC-01 and passing order thereafter, when another officer (referred as “first officer”) was seized of the matter and intimation in Form
GSTDRC-01A dated 05.03.2021 was issued to which the appellants had submitted their reply dated 08.03.2021 and the said reply was neither
considered nor rejected and the matter was kept pending. The appellant further stated that he was not aware of the said notice for being uploaded
in the portal and they came to know of the same only after the sum of Rs. 1,84,930/- was paid from their electronic credit ledger and immediately
thereafter, the appellants applied for a copy of the order and thereafter preferred the appeal but by then the period of limitation for filing the appeal
had expired.
The High Court observed that the option which was available to the first officer was to consider the representation/reply and if not satisfied, could
have proceeded to issue SCN under Section 74(1) of the Act which option the first officer did not exercise and the matter was left to linger. Thus,
the preliminary proceedings could not have been initiated by the second officer when proceeding initiated by the first officer for the very same
amount on the very same allegation was not taken to the logical end. It was further observed that when the statutory appeal for the order passed
by the second officer was pending before the appellate authority, the first officer had dropped the proceedings. From the final report of the first
officer, it was seen that the proceedings were closed by the first officer only on 24.01.2023. Thus, for all purposes, it was deemed that the
proceedings initiated by the first officer pursuant to intimation dated 05.03.2021 had attained finality and on the said date, the appeal as against
the proceedings initiated by the second officer was already pending before the appellate authority.
Thus, the High Court considering peculiar facts and circumstances held that the appeal should not be treated to be as time barred

3

Section
29 and
Section
30

Cancellation of
registration of
the recipient for
wrongful
availment of ITC
as the supplier
did not deposit
the tax

Electro Steel
Corporation v.
State of
Jharkhand
[2023] 150
taxmann.com
407
(Jharkhand)

The registration of the petitioner was cancelled on account of the allegation that they have availed excess credit than the ITC accrued in GSTR2A/2B in violation of Provisions of Section 16. It was contended by the petitioner that they had duly paid the amount to the supplier but supplier
neither filed the return and nor filed GSTR-1.
The High Court observed that the claim of the petitioner than they have paid the entire amount to the supplier neds verification that whether at all
the entire amount being paid by them was towards the invoices raised by the supplier. The High Court directed that in case the verification exercise
reveals that even after due payment to the supplier, the same has not been deposited, it would be open for the competent authority to take
appropriate decision

S.No

Section

Case Subject

Case

Held

1

Section
29 and
Section
30

Petitioner directed to
file application for
revocation of
Cancellation of
Registration as per
notification no.
3/2023-CTdt 31-3-23

Anandkumar Ramdeo
Singh v.
Commissioner
(Appeals-I) GST and
Central Tax [2023] 151
taxmann.com 13
(Karnataka)

The High Court observed that the notification dated 31.03.2023 has been issued providing for revocation of cancellation of the
registration. Since the cancellation was under the provisions of Section 29(2) of the CGST Act and such cancellation was before
31.12.2022, and an application for revocation was not filed, the High Court stated that application be submitted that in terms of this
notification.

2

Section
74 and
Section
75

A vague notice is
violation of provision
in Section 75 since
the Statute itself
prescribes for
affording reasonable
opportunity and any
deficiency in that
regard vitiates the
result.

[2023] 151
taxmann.com 12
(Madhya Pradesh)
Balaji Electricals
v. Appellate Authority
& Joint Commissioner
State Tax.

The High Court observed that even though the petitioner had not specifically raised the said ground before the appellate authority
but the fact remained that mandatory provisions of Section 74 of GST Act make it incumbent upon the Revenue to ensure the show
cause notice to be speaking enough to enable the assessee to respond to the same. However, SCN revealed that it neither contained
the material and information nor the statement containing details of ITC transaction under question. It was further observed that
Section 75 of GST Act is a complete Code which prescribes for various stages for determination of wrongful utilization of ITC while
following the concept of reasonable opportunity of being heard to the assessee. Since the Statute itself prescribes for affording
reasonable opportunity, it is incumbent upon the Revenue to afford the same and any deficiency in that regard vitiates the result.
The High Court held that it had no manner of doubt that the very initiation of the proceedings by way of show cause notice was
vitiated for the same being vague.
Case Referred- Sidhi Vinayak Enterprises v. The State of Jharkhand & ors) including WP(T) No.745/2021 14thth, September
2022,

3

Section 9

to bear GST Burden
in case of Pre and
Post GST Contracts
wherein impact of
GST was not
considered while
preparing BOQ

[2023] 151
taxmann.com 12
(Madhya Pradesh)
Balaji Electricals
v. Appellate Authority
& Joint Commissioner
State Tax.

The matter in the instant petition was to give by way of direction upon the respondent authority concerned to bear the additional tax
liability for execution of subsisting Government contracts either awarded in the pre-GST regime or in the post GST regime without
updating the Schedule of Rates (SOR) incorporating the applicable GST while preparing Bill of Quantities (BOQ) for inviting the bids
The High Court disposed of the writ petition by giving liberty to the petitioner to file appropriate representations in the aforesaid
regard before the Additional Chief Secretary, Finance Department, Government of West Bengal within four weeks from date. On
receipt of such representations the Additional Chief Secretary, Finance Department was directed to take a final decision within four
months from the date of receipt of such representation after consulting with all other relevant departments concerned.

4

Section
112

Status of Recovery of
demand on account
of non-constitution of
Tribunal.

Flipkart India (P.) Ltd.
v. Additional
Commissioner of
State Tax (Appeal)
[2023] 151
taxmann.com 10
(Patna)

The High Court held that subject to verification of the fact of deposit of a sum equal to 20 percent of the remaining amount of tax in
dispute, or deposit of the same, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section
107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the
B.G.S.T. Act, for he cannot be deprived of the benefit, due to non- constitution of the Tribunal by the 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- AJ Food Products Pvt. Ltd. v. The State of Bihar & Others in C.W.J.C. No. 15465 of 2022

5

Section
69 and
Section
132

Rejection of
Anticipatory Bail

[2023] 151
taxmann.com 9 (SC)
Sheetal Mittal v. State
of Rajasthan

The Supreme Court held that looking to the role attributed to the petitioner(s) and the observations made by the High Court that the
GST number, name of the firm were fabricated and other details were found to be non-existent, there was no case for anticipatory
bail. The Special Leave Petitions were thus dismissed