S.No

Section

Case Subject

Case

Held

1

Section
73

SCN on same
subject matter
issued by two
authorities to be
decided by one
of the authorities

LGW Industries Ltd. v.
Assistant
Commissioner, Salt
Lake Charge [2023]
154 taxmann.com 611
(Calcutta) (15-03-
2023

SCN was issued by Assistant Commissioner, Salt Lake Charge on dated 29th Dec 2022 and on the very same issue, Assistant Commissioner,
State Tax, Bureau of Investigation, South Bengal (HQ) had issued notice dated 7th Nov, 2022.
The Court was of the view that if the subject issue is one and the same or if the subject is inter-related, it is always better that one authority
adjudicates the matter. By directing the assessee to face multiple authorities may result in conflicting decisions. Therefore, not only in the
interest of the assessee but in the interest of the revenue also, one authority should take the decision. Admittedly, Bureau of Investigation,
South Bengal was centralised agency and if that agency has already taken up the matter for consideration and the concerned Assistant
Commissioner has issued notice dated 7th Nov, 2022, it was held to be appropriate that issues be considered by the said authority including
the issue, which was raised by the respondent in the SCN dated 29th Dec 2022

2

Section
73/74 and
Rule 86A

An earlier order
passed under
Rule 86A(2)
lifting the
blocking of ITC
Ledger, will not
preclude the
assessing officer
in passing an
order under
Section 73/74 to
hold that ITC was
wrongly availed

D. Ranganathan &
Co. v. Assistant
Commissioner (RAL)
(FAC) [2023] 154
taxmann.com 606
(Madras) (11-04-
2023

For the period 2017-18, petitioner's ITC had been blocked under Rule 86A on the basis that ITC had been availed allegedly, fraudulently.
The petitioner was called upon to file objections and was also heard. Pursuant thereto, an order was passed on 16-7-2021, considering the
request of the petitioner for unblocking of credit under Rule 86A in its favour. Thereafter, notices came to be issued to the petitioner on the
basis of information received by the assessing officer (hereinafter referred as “R 3”) to the effect that suppliers were non-existed or were not
conducting business from the place in which registration had been obtained. The petitioner responded to the SCN by relying on proceedings
dated 16-7-2021. The submissions made before R1 were reiterated before R3, the assessing officer, and, infact response dated 15-11-2022
relies, lock, stock and barrel, on proceedings dated 16-7-2021 only. After considering the explanation and hearing the petitioner in detail, R3
proceeded to pass the impugned order on 5-1-2023.
The Court observed that while passing an order lifting the blocking of credit, the assessing authority was undoubtedly required to examine
whether such block has been validly made. It was thus incumbent upon the officer concerned to examine every aspect of the matter prior to
arriving at a proper decision. However, at the same time, it was also incumbent upon the dealer to establish receipt of the goods or services.
R3, in the impugned order of assessment had proceeded on the basis that the petitioner did not establish movement of goods. In fact, he
referred to various particulars called for by him, such as weighment slips, vehicle receipts for goods transportation, freight for inward and
outward related documents, fuel expenses, stating that such documents were not produced. He thus concluded, that petitioner did not
discharge burden placed upon him to establish movement of goods and, based on such failure as well as the departmental enquiries,
concluded that the transactions were fictitious as the suppliers did not exist. As regards the bank statements, there was an explanation put
forth in the order to the effect that cash has been credited and debited the same day and hence the transactions constituted classic circular
transactions. The High Court, thus concluded that true, R3 ought to have made reference to order of R1 dated 16-7-2021 and undoubtedly,
this was a flaw in the assessment order but not a fatal flaw. The power of an assessing officer under section 73/74 is wide and proceedings
for assessment may be initiated in any circumstance where it appears to the proper officer that the claim of ITC by an assessee is incorrect.
The mere fact that an order has been passed under Rule 86A(2) will not stand in the way of the assessing officer making an assessment or
curtailing his powers in any way, in such an exercise.

3

Section
129

Conduct of the
assessee to be
considered in
case of expired
Eway Bill and
having found
that the conduct
was not with the
intention to
evade tax, relief
to be granted to
the assessee

Usha Martin Ltd. v.
Deputy Commissioner
of State Tax [2023]
154 taxmann.com 610
(Calcutta) (16-06-
2023)

The goods in question were meant for export and the appellants had generated an e-Way Bill which was valid till 12th September, 2019. The
appellants' case was that the goods while being loaded into the vessel had got damaged and as a result, the goods had to be taken back to
the appellants factory at Ranchi for repairs. For such purpose the e-Way Bill was generated based on a challan on 7th September, 2019 which
was valid till 12th September, 2019. In terms of Rule 138(10), an option is given to extend period of e-Way Bill and such extension should be
done before eight hours. Admittedly, eight hour period expired about 8.10 a.m. on 13-9-2019 and at about 8.20 a.m., goods were detained.
The Court observed that on perusal of e-Way Bill, it was seen that no tax was payable since the goods which were owned by the appellants
were taken back to their factory at Ranchi for repairs. The identical issue was considered in various matters earlier by the Court and in all
those matters, conduct of the assessee was considered and having found that the conduct was not with the intention to evade tax, relief was
granted to those assessee’s. The Court thus concluded that case on hand would also fall under the said category since there was no
allegation of any evasion of tax rather it was not disputed that goods were being transported under a cover of challan to the factory of
appellants for carrying out repairs and thus, it was not a fit case where tax and penalty should have been levied on the appellants.
Cases Referred- Progressive Metals Pvt. Ltd. v. The Deputy Commissioner, State Tax, Bureau of Investigation, South Bengal, Durgapur
Zone & Ors. in MAT 562 of 2023 dated 28-4-2023; KDG Projects Pvt. Ltd. v. Assistant Commissioner of State Tax, Bureau of Investigation
(North Bengal) reported in 2022(66) G.S.T.L. 262 (Cal.); Medha Servo Drives Private Limited & Anr. v. The Assistant Commissioner of, State
Tax, Bureau of Investigation (South Bengal), Durgapur Zone & Ors. in MAT 1751 of 2022 dated 17-11-2022

S.No

Section

Case Subject

Case

Held

1

Section
73

Passing of order by
mere recitation of
submission by
taxpayer with no
discussion on
merits is arbitrary

Penalty U/Sec
129(1)(b) not
applicable as EWay Bill &
Document of title to
goods were
accompanying
goods

In the instant matter, the authority had while passing the order elaborately reproduced reply of the petitioner from Internal Page No. 2 of the impugned
order upto the Internal Page No. 9. However, there was no discussion and thus the High Court held that the impugned order was passed in an arbitrary
manner without considering the reply of the petitioner. The impugned order was thus set aside and the case was remitted back to the authority to pass a fresh
order on merits and in accordance with law.

2

Section
129

Buyer cannot be
held responsible for
mistake committed
by seller in
generating the
invoice for Bill to
Ship To model
Order to be passed
within 7 days from
the date of service
of notice

Tvl.T M Steel v.
Deputy State Tax
Officer [2023]
154
taxmann.com
281 (Madras)

The petitioner i.e, Tvl.T M Steel had received an order for supply from Mr. T.Balaji (HUF). The petitioner in turn had placed an order for the supply with M/s.Rashmi
Mataliks Limited (hereinafter referred to as M/s.Rashmi) and instructed them to directly send the consignment to Mr.T.Balaji (HUF). The vehicle and goods were
detained as M/s.Rashmi while generating the tax invoice M/s Rashmi , correctly mentioned Name, address and GSTIN of Tvl.T.M. Steel in the Billed To column.
However, in Shipped To column, instead of mentioning Tvl.T.Balaji, it mentioned Tvl.TM Steel. But in address column, it clearly mentioned address of Tvl.T.Balaji.
The High Court observed that it can be considered as typographical error only. Moreover, it was not the mistake of Tvl.TM Steel, it was the mistake
committed by M/s.Rashmi. The authority did not communicate to the counterpart at Bengal to question M/s.Rashmi. It was not known how the authorities
penalizing the petitioner when the petitioner had not committed the said mistake. When the petitioner had not committed such mistake, the authorities had left
the goods in the vehicle for the past 10 days, thereby damaging the vehicle and goods. Further, authority had not passed order with 7 days from the date of
service of such notice. Under Section 129(3) of the Act, the order ought to be passed within 7 days from the date of serve of such notice. Since there is
clear violation of the provisions of the Act and hence the detention of goods is against the provisions. Therefore, the court directed the petitioner to pay Rs.
5,000/- as penalty and goods being released and authorities were at liberty to intimate the mistake committed by M/s.Rashmi Mataliks Limited to their counterpart in
West Bengal and take appropriate action

3

Section
83

Can State Tax
Officer be Proper
Authority to
exercise power
U/Sec 83

Saket Agarwal v.
Union of India
[2023] 154
taxmann.com
279 (Bombay)

The Court had heard the proceedings earlier and had adjourned it to enable the learned AGP to take instructions as to whether the State Tax Officer would be the
proper officer to exercise jurisdiction under Section 83 of the MGST Act so as to issue the impugned communication. It was fairly stated on instructions on the
date of hearing, that the State Tax Officer would not have any jurisdiction to issue such communication, therefore, impugned communication was
withdrawn by the officer who had issued it. The High Court thus held that as the impugned communication itself was withdrawn, an intimation of withdrawal of
such communication be immediately sent to the Officer-In-Charge of the Central Depository Services (India) Ltd.

4

Section
54

Refund can only be
withheld for the
amount pertaining
to supplies from a
non-existent
supplier and
balance amount to
be refunded

Solidum and
Stars Guild LLP
v.
Commissioner of
Central Tax,
Appeal-II, [2023]
154
taxmann.com
271 (Delhi)

Petitioner had filed a refund application and Adjudicating Authority issued a SCN proposing to reject petitioner's claim because supplier/s were reported as NonExistent by the respective jurisdictional CGST authorities. Although petitioner replied to the SCN but the Adjudicating Authority rejected petitioner's application for
refund as it was found on verification, that one of the suppliers named M/s Siddhi Impex was non-existent. There was no allegation in respect of any of the other
suppliers, the details of which were provided by the petitioner. The petitioner preferred an appeal under section 107 and the same was also rejected as one of the
supplier was found to be non-existent and concluded that the appellant 'had not received any input/input services from M/s Siddhi Impex'. However, there was no
allegation regarding any of the other suppliers, the details of which were supplied by the petitioner. The petitioner in the writ petition, did not seek to question the
decision of the Adjudicating Authority or the Appellate Authority in rejecting the petitioner's claim for refund in respect of the ITC in relation to the supplies received
from M/s Siddhi Impex; he confined his relief to refund of the ITC in respect of inputs received from other suppliers, amounting to Rs. 54,99,846.
The High Court observed that there was no allegation regarding any irregularity in respect of the supplies made by the suppliers other than M/s Siddhi
Impex. There was also no dispute as to the quantum of the ITC in respect of those supplies. Neither the Adjudicating Authority nor the Appellate Authority
has raised any doubt in respect of those supplies. Therefore, there was, no reason for denial of refund in respect of ITC pertaining to supplies made by
suppliers other than M/s Siddhi Impex

5

Section
129

Penalty U/Sec
129(1)(b) not
applicable as EWay Bill &
Document of title to
goods were
accompanying
goods

Diginx Trader
v. State of U.P.
[2023] 154
taxmann.com
267 (Allahabad)

Writ Petition was filed against the order whereunder penalty of Rs. 72,76,500/- had been levied upon the petitioner by not treating the petitioner to be the owner of
goods. Admittedly, the goods were duly accompanied by the tax invoice, e-way bill and bilty issued in the name of the petitioner as the consignee. It was further
contended that the petitioner was the owner of the goods and was ready and willing to deposit penalty under protest under section 129(1) (a) to get the goods
released considering the perishable nature of the goods and diminishing of its value substantially with the onset of monsoons.
The High Court observed that revenue could not dispute the fact that intention to evade tax is a per-requisite for imposition of penalty under section 129.
E-way Bills being the documents of title to the goods were accompanying the goods hence, conclusion of revenue that the petitioner was not the owner
of the goods is patently erroneous. Consequently, it was held that penalty proceedings were liable to be initiated U/Sec129(1)(a) and not 129(1)(b) as was done.
Case Relied- Sahil Traders v. State of U.P. [Writ (Tax) No. 178 of 2023, dated 25-5-2023

S.No

Section

Case Subject

Case

Held

1

Section 73

Service of
Notice through
Portal is valid
service of
Notice

S. K. Eldhose v.
State Tax Officer
[2023] 153
taxmann.com 477
(Kerala)

The petitioner contended that that it was only on account of the peculiar circumstances where it was not aware of the assessment order that it
could not take steps to file the appeal within time.
The High Court held that the assessment order was served on the appellant in a manner prescribed under the statute, namely, an
intimation through the GST portal. The statutory period of limitation for preferring an appeal was three months from the date of communication
of the order, with a further period of one month towards condonation of delay, if any. The appellant, not having availed the alternate remedy
under the statute, cannot feign ignorance of statutory scheme under GST Act, which accords a finality to those orders that have not
been appealed against.

2

Section 129
and Section
130

Section 130
not required to
be preceded
by Section 129

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

The main contention was that the respondents were obliged to proceed sequentially through provisions of Section 129 before confiscating the
goods under Section 130 since provisions were dependent upon each other. The said submission did not, however, found favour with the learned
Single Judge who found that provisions of Section 130 were independent and could be invoked without invoking Section 129 of the Act.
The High Court observed that the impugned judgment of the learned Single Judge calls for no interference since it is well settled that
the provisions under Sections 129 and 130 are independent provisions and there is no requirement in law that the proceedings under
Section 130 should be preceded by the proceedings under Section 129.

3

Section 107

Appellate
Authority
relying upon
documents
which were
never supplied
to the
petitioner

Ashok Kumar
Vishwakarma v.
Union of India
[2023] 153
taxmann.com 481
(Bombay)

It was contended that SCN for cancellation of registration was issued without furnishing any documents and merely on a statement that
Petitioner's registration was liable to be cancelled because of "Issue any invoice or bill without supply of goods and/or services in violation of the
provisions of this Act, or the rules made thereunder leading to wrongful availment or utilization of input tax credit or refund of tax."
The High Court observed that no documents were furnished to the Petitioner in support of the sole ground. The Petitioner had sought for an
adjournment that he was not available in the town, however still the proper officer proceeded to cancel the registration that too by erroneously
recording that the Petitioner was heard and the documents and reply submitted by him was examined, when neither the Petitioner was heard
nor any documents were filed by the Petitioner. There is a categorical obligation on the authority to grant a personal hearing as contemplated
below proviso to Sub-section 2 of Section 29. Appellate Authority also proceeded to overlook the ground and in fact has proceeded on a fresh
material, namely, range officer's report in regard to the short paid tax and other materials regard to the cancellation of registration of the suppliers
of Petitioner's. Petitioner was held correct in contending that Appellate Authority relied on materials which were never supplied while
rejecting his appeal.

4

Finance Act
1994
(Notification
no. 41/2012-
ST dated
29.06.2012

Review of
Earlier
Judgement
which held that
Duty free
shops being
outside
customs
frontiers of
India cannot
be saddled
with indirect
tax burden

Commissioner of
CGST and Central
Excise v. Flemingo
Travel Retail Ltd
[2023] 153
taxmann.com 492
(SC)

Basis of Earlier Judgement for which review was sought- The Court affirmed judgment of the CESTAT noting that against a judgment of the
High Court of Judicature at Bombay dated 28 November 2018 in Al Cuisine Pvt Ltd v Union of India, a Special Leave Petition was dismissed by
an order dated 14 Dec 2018 of the Apex Court. From the judgment under review, it was also observed that after recording the view which was
taken by CESTAT, Court adverted to decision of High Court at Bombay in Sandeep Patil and Kerala in CIAL Duty Free & Retail Services Ltd.
Why Union wanted Review- Position as it obtains in relation to goods is distinct from the applicable statutory regime in respect of services.
Sixteen appeals involving a similar issue are pending before this Court arising from orders dated 28 September 2017 and 26 October 2018 of
the CESTAT at its West Zonal Bench in Mumbai. Hence, it was requested to tag this appeal with the appeals pending in this Court was made.
Decisions of Bombay and Kerala High Court relied upon pertained to goods and not to levy of service tax on the renting of immovable property.
What Apex Court said accepting the request to review- Substantial grounds on law were advanced during oral hearing in support of its case
that applicable regime regarding goods stand on a distinct footing from regime applicable to levy of service tax and later, under IGST. Apex Court
also observed that whether objection raised regarding reliance upon judgement of Bombay and Kerala High Cour would make any difference to
ultimate outcome is debatable, and would, therefore, require substantial consideration. Therefore, at this stage, absent such a consideration
in the judgment under review and since issue which was raised would have large consequential ramifications, review was allowed

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

S.No

Section

Case Subject

Case

Held

1

Section
73

Principle of
Natural
Justice

Dr. Ambedakar
Enterprisese v.
Union of India
[2023] 153
taxmann.com
323
(Allahabad)

SCN was issued on 10-6-2022, date for personal hearing was fixed on 24-6-2022 whereas date for final reply was fixed thereafter on 9-7-2022. The
petitioner could not appear on the date fixed for personal hearing. The order impugned was passed about five months thereafter on 30-11-2022.
The High Court observed that Principle of natural justice was breached. The adjudicating authority ought to have fixed reasonable date for filing reply and
for personal hearing. The petitioner may have been at fault in not filing reply on the date fixed and having not filed any application thereafter. Yet, the
adjudicating authority chose not to pass any order and did not fix any other date for hearing in the matter for a long period of five months. However, there
was fault on the part of the petitioner too in neither filing appeal within limitation nor approaching the Court within reasonable time. The writ petition was
disposed that in case petitioner deposits a sum of Rs. 75,000/- before adjudicating authority, the impugned order shall stand set aside.

2

Section
107

Amount
deposited
under
Section
73(5) to be
considered
as predeposit
against
appeal

Vinod Metal v.
State of
Maharashtra
[2023] 153
taxmann.com
322 (Bombay)

Petitioner intended to filed appeal under section 107 of the CGST Act and contended that the amount as deposited by the Petitioner under sub-section (5)
of Section 73 of the CGST Act needs to be accepted towards fulfillment of such pre-deposit, as the said amount is already made, it cannot be contended
by the Revenue, that such deposit is not available, when it comes to the compliance of sub-section (6) of Section 107 of the CGST Act.
The High Court observed that on a holistic reading of Section 73, an amount deposited under sub-section (5) Section 73 is not an amount, which is deposited
in pursuance of any demand or any assessment order. It is a voluntary deposit and which is subject to all contentions of assessee. Also such deposit would
be accounted in the event of any the liability of the assessee to pay tax, and would be integral to the assessment. Thus, when it comes to the compliance
of mandatory payment of the tax, being a condition precedent for filing of appeal, principle as laid down in Supreme Court in VVF (India) Ltd. would become
applicable considering that the provisions of the CGST Act on pre-deposit are not too different from provisions of the MVAT Act, which fell for consideration
of the Supreme Court. For the above reasons, High Court held that voluntary deposit as made under protest under the provisions of Section 73(5),
cannot be excluded from consideration for the purpose of compliance as mandated by sub-section (6) of Section 107 of the CGST Act.
Case Referred- VVF (India) Ltd. v. State of Maharashtra (2023) 4 Centax 421/2023 (72) G.S.T.L. 444 (SC)

3

Section
107

Binding
Precedent
of Orders
passed by
Appellate
Authority
over
Assessing
Authority

Jacobs
Solutions India
(P.) Ltd. v.
Union of India
[2023] 153
taxmann.com
321 (Bombay)

In pursuance of order dated 11 October 2022 passed in an appeal, petitioner filed a refund claim on 29 November 2022. On such refund claim, Assistant
Commissioner of CGST & CX (Central Excise) issued a SCN dated 28 December 2022, calling upon the petitioner to show cause as to why refund claim
ought not to be rejected on the ground of non disclosure of invoice details of FIRCs. The Assistant Commissioner by the impugned order dated 27 January
2023 rejected the petitioner's refund claim whereby he confirmed the show cause notice. It is against such order the petitioner filed petition before the Court.
The High Court observed that when the entire fact finding exercise was subjected to the scrutiny in an appeal resulting in the appeal being allowed, then
only remedy for the department against the appeal order was to seek review. It was not open to Assistant Commissioner to pass the impugned order which
amounted to sitting in appeal over the order passed by the Additional Commissioner of Appeals. The Assistant Commissioner could not have passed
the impugned order, of the nature he has passed as he was certainly bound by the orders passed by the Additional Commissioner (Appeals).
Cases Referred-Globus Petroadditions (P.) Ltd. v. UOI[2022]140 taxmann.com 569(Bom),UOI v. Kamlakshi Finance Corpn. Ltd.1992taxmann.com16(SC)

4

Section
70

Recording
of
Statement
in
presence
of
Advocate

Prakash Kumar
Rameshbhai
Patel v. State of
Maharashtra
[2023] 153
taxmann.com
273 (Bombay)

The petitioner prayed for the relief that petitioner's statement be recorded in the presence of his Advocate i.e. at a visible but not audible distance, during
his interrogation. The revenue had no objection to the presence of the petitioner's Advocate, at the time of recording of the petitioner's statement, provided
that he is at a visible distance, but not at an audible distance.
The High Court allowed the petition and, as such, permit the petitioner's Advocate to remain present at a visible, but not at an audible distance
at the time of recording of the petitioner's statement

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