Part-91-One Pager Snapshot to the Latest Cases

-Passing of order by mere recitation of submission by taxpayer with no discussion on merits is arbitrary
-Buyer cannot be held responsible for mistake committed by seller in generating the invoice for Bill to Ship To model and Order to be passed within 7 days from the date of service of notice
-Can State Tax Officer be Proper Authority to exercise power U/Sec 83
-Refund can only be withheld for the amount pertaining to supplies from a non-existent supplier and balance amount to be refunded
-Penalty U/Sec 129(1)(b) not applicable as E-Way Bill & Document of title to goods were accompanying goods

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

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-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-45-One Pager Snapshot to the Latest Cases

-Cancellation of Registration without following Principle of Natural Justice and illegalities at assessment stage cannot be cured by appellate stage

-Writ filed without exhausting statutory remedy and delegation of powers by Commissioner

-Refund cannot be denied as revenue proposes to file an appeal against order of the appellate authority

S.No

Section

Case Subject

Case

Held

Cases Referred

1

Section 29

Cancellation of
Registration
without
following
Principle of
Natural Justice
and illegalities
at assessment
stage cannot be
cured by
appellate stage

Ultra Steel Ward v.
State of Madhya
Pradesh [2023] 151
taxmann.com 285
(Madhya Pradesh

The High Court observed that the SCN did not contain sufficient reasons to enable petitioner to file a reply. By
saying that the registration has been obtained by fraud/wilful misstatement/suppression of facts, is not
sufficient. Such terms need to be supported by reasons and some fundamental supporting material as to why,
how and under what circumstances the registration was obtained. Further, SCN for rejection of application for
revocation of cancellation of registration referred to an application dated 11.02.2022 which was, in fact, a reply
to the SCN for cancellation of registration and, therefore, it appeared to the Court that Revenue has not even
cared to ensure that true facts are reflected from the SCN. The carelessness on the part of the Revenue was
referred to be palpable. The appellate authority while passing the appellate order brushed aside the cogent
ground of violation of principle of natural justice (audi alteram partem). Pertinently, the appellate authority
conducted a physical verification of the premises of assessee. Such physical verification at the appellate stage
in the opinion of the High Court could not validate the illegalities which had crept at the initial stage of show
cause notice.
The proceedings were held to be illegal and revenue was at liberty to proceed by issuing a fresh, proper and
lawful show cause notice to the petitioner-assessee, if they were so advised.

Mohinder Singh Gill and
another Vs. CEC and
others, (1978) 1 SCC 405;
Health Care Medical
Devices Pvt. Ltd. Vs. MP
Public Health Services
Corpn. Ltd. and another,
2021 SCC OnLine MP
3389; Balaji Enterprises
Vs. Principal Additional
Director General, DGGSTI
and Others, 2022 SCC
OnLine Del 3201;

2

Section 83

Writ filed
without
exhausting
statutory
remedy and
delegation of
powers by
Commissioner

S. R. Traders v.
Additional Director
General [2023] 151
taxmann.com 286
(Kerala)

The High Court stated that the petitioner had approached the court without exhausting the statutory remedy
under Rule 159. It is well-settled that the writ jurisdiction was only to be exercised in extra-ordinary
circumstances.
The petitioner had further contended that only Commissioner was invested with the power to pass an order
under Section 83 but respondent stated that by notification, powers have been invested in the Additional
Director General. The High Court negated the contention and held that the respondent was competent to pass
order in view of express delegation of powers read with Sections 3 and 5 of the CGST Act.

M/s. Radha Krishan
Industries v. State of
Himachal Pradesh and
others [AIR 2021 SC 2114]

3

Section 54

Refun cannot be
denied as
revenue
proposes to file
an appeal
against order of
the appellate
authority

Alex Tour and Travel
(P.) Ltd. v.
Asistant
Commissioner,
CGST [2023] 151
taxmann.com 331
(Delhi)

The refund due to the petitioner in pursuance of the order of the appellate authority was not granted on the
ground that the decision of the appellate authority was erroneous and Revenue proposes to file an appeal
against the said decision as and when an appellate tribunal is constituted. The assessing officer also insisted
to file fresh refund application.
The High Court directed to grant the refund and rejected the insistence of Revenue to file fresh refund
application since proceedings emanated from petitioner filing applications for refund which was culminated in
Orders-in-Appeals passed by the appellate authority. Revenue cannot ignore the orders passed by the
appellate authority mainly on the ground that it proposes to file an appeal. Further there was no order passed
by the Court, staying the effect of the Orders-in-Appeal passed by the appellate authority. The respondent was
also taking no steps for securing orders to that effect. In view of the above, the petition was held liable to be
allowed

-

Snapshot-35-Snapshot of Latest GST Cases

-Service of Notice on Email ID not a valid service
-Order passed without giving sufficient time & without considering reply
-Exercise of Power U/Sec 74 not dependent on Sec 61
-Cash Credit A/c is not a debt and thus not attachable

S.No

Section

Case Subject

Case

Held

1

Section
73 and
Rule 142

Service of
Notice on Email
ID not a valid
service of Notice

Shri Shyam baba
Edible Oils v. Chief
Commissioner
[2023] 151
taxmann.com 139
(Madhya Pradesh)

In the instant case, the service of show cause notice/order was challenged as the same was communicated through Email.
The High Court observed that a bare perusal of Rule 142 of CGST Rules, 2017 reveals that the only mode prescribed for communicating
the show-cause notice/order was by way of uploading the same on website of the revenue. The State in its reply had provided no material
to show that show-cause notice/order No.12 dated 10.06.2020 was uploaded on website of revenue. In fact, learned AAG conceded that
the show-cause notice/order was communicated to petitioner by Email and was not uploaded on website of the revenue. Therefore, the
High Court held that statutory procedure prescribed for communicating show-cause notice/order under Rule 142(1) of CGST Act was not
followed by the revenue, and thus the impugned order was struck down. The revenue was allowed the liberty to follow the procedure
prescribed under Rule 142 of CGST Act by communicating the show-cause notice to the petitioner by appropriate mode thereafter to
proceed in accordance with law.

2

Section
29 and
section
30

Order passed
without giving
sufficient time to
the petitioner
and without
considering
reply of the
petitioner set
aside

Pakiza Steel LLP v.
Union of India [2023]
151 taxmann.com
113 (Bombay

In the instant case, Petitioner had received a show cause notice on 5th September 2022 to show cause by 6 September 2022 that why the
registration should not be cancelled and by the said order, registration of the Petitioner was suspended with effect from that date. The
petitioner contended that although he did not have time to adequately prepare yet he submitted the reply and without considering the reply,
the final order came to be passed. It was further contended that although the impugned order referred to the reply, but it did consider the
same and the Authority proceeded to pass an order on entirely different ground on which the Petitioner did not get opportunity
The High Court observing that the impugned order had been passed in above circumstances directed that the petitioner be given an
opportunity before the final order of cancellation of registration is made However, they did not restore registration and registration continued
to remain suspended as per show cause notice.

3

Section
61 and
Section
74

Exercise of
Power under
Section 74 not
dependent on
issue of notice
under Section
61 and can be
exercised
independently

Naarjuna Agro
Chemicals (P.) Ltd. v.
State of U.P. [2023]
151 taxmann.com
112 (Allahabad)

The High Court did not accept the argument that unless deficiency in return is pointed out to the assesee, and an opportunity is given to
rectify such deficiency, that the department can proceed under Section 74 is not borne out from the statutory scheme and the argument in
that regard therefore, must fail. It was observed that the scrutiny proceedings of return as well as proceeding under Section 74 are two
separate and distinct exigencies and issuance of notice under Section 61(3), therefore, cannot be construed as a condition precedent for
initiation of action under Section 74 of the Act. The High Court further observed that the judgement in the matter of M/s. Vadivel Pyrotech
Private Ltd. v. The Assistant Commissioner, (2022 U.P.T.C. 1769) was limited to the facts of that case and do not lay down any proposition
of law which restricts the exercise of jurisdiction under Section 74 upon issuance of notice under Section 61(3) of the Act.
Therefore, the High Court held that merely because no notices were issued under Section 61 of the Act would not mean that issues of
classification or short payment of tax cannot be dealt with under Section 74 as exercise of such power is not dependent upon issuance of
notice under Section 61

4

Section
83

Cash-credit
facility is not a
debt and
therefore, not
attachable.

Naarjuna Agro
Chemicals (P.) Ltd. v.
State of U.P. [2023]
151 taxmann.com
112 (Allahabad)

The High Court held that cash-credit facility is not a debt and therefore, it cannot be made attachable and the Court was bound by the
above-stated precedent but cash-credit facility is not a debt and therefore, it cannot be made attachable. This Court is bound by the abovestated precedent; however Rule 159 clearly gives adequate power to the petitioner to file objection for releasing the bank account or, in the
instant case cash-credit facility, therefore when there was an efficacious relief in the statute itself, therefore, the High Court was of the view
that the petitioner should adopt such efficacious relief and Court was not inclined to afford any relief under Article 226 of the Constitution.
Cases Referred- Jugal Kishore Das v. Union of India reported in 2013 SCC Online Cal 19941, Radha Krishan Industries v. State of
Himachal Pradesh reported in 2021 (48) GSTL 113 (SC), Valerius Industries v. Union of India reported in 2019 (30) GSTL 15 (Guj),
Mardia Chemicals Limited v. Union of India [2004] 4 SCC 311, Overseas Bank v. Ashok Shaw Mill reported in [2009] 8 SCC 366.

Snapshot-27-Snapshot of Latest GST Cases

-Validity of Assessment order based on amount mentioned in Eway Bill
-Recovery of demand due to non-constitution of Tribunal
-Revocation of Cancelled Registration
-Provisional attachment ceases to be operative after expiry of one year

S.No

Section

Case Subject

Case

Held

1

Section
74

Assessment order
based upon
amount
mentioned in
eway bill being
different from
Invoice quashed
considering the
human error in
generating Eway
Bill

Jena Trading and
Co. v. CT and GST
Officer [2023] 150
taxmann.com 339
(Orissa

In the case, petitioner had generated a tax invoice for an amount of Rs.1,97,047.86. As, he did not have the computer, the same was a self
generated document. Further an e-Way Bill was prepared, wherein the total taxable amount was shown to be Rs.197047086.00. This figure
was a typographical mistake. Therefore, though the figure is tallying but the paise has been entered in rupees, which has created difficulty
on the part of the petitioner, because he is a small dealer and cannot have taxable amount of Rs.197047086.00.
The department contended that the assessment order had been passed by the assessing authority under Section 74 of the OGST Act with
intimation through DRC-01A for the cause of less filing of return for the period of 2019-20, as per the information under possession of the
authority, and whereas, no response received against the above mentioned intimation for which online notice in DRC-01 was issued and, as
such, no response was received on above.
The High Court held there was a palpable error in the way bill, which may be construed to be an human error. If this fact was to be brought
to the notice of the assessing authority, the same could be considered in accordance with law and fresh assessment order could be passed.
Thus the High Court quashed the order and matter was remitted back to the assessing authority for reconsideration in accordance with law

2

Section
112

Status of
Recovery of
demand on
account of nonconstitution of
Tribunal

Ritesh Infratech
(P.) Ltd. v. Union of
India [2023] 150
taxmann.com 340
(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-SAJ Food Products Pvt. Ltd. vs. The State of Bihar & Others in C.W.J.C. No. 15465 of 2022

3

Section
30

Appellant directed
to avail benefit of
N. No. 03/2023-
CT Dt. 31.03.2023
for Revocation of
cancelled
registration

[2023] 150
taxmann.com 341
(Gujarat) Radhe
Packaging v.
Union of India

The cancellation of GST Registration was ordered on the ground that the tax payer had not filed GST returns for more than six months and
that the tax payer has not responded by filing such returns. The Assistant Government Pleader produced copy of the Notification No. 03/2023-
Central Tax Dated 31.03.2023 issued under Section 148 of the Central Goods and Service Tax Act, 2017 before the High Court.
The High Court thus held that Clause (c) of the Notification would apply to the facts of this case for which there is no dispute. As the Notification
would indisputably apply to the facts of this case, the petitioner was directed to approach the competent authority to avail the benefit of the
Notification and seek revocation of the cancellation of registration.

4

Section
83

Operation of order
provisionally
attaching bank
account ceases to
be operative after
expiry of one year

Merlin Facilities
(P.) Ltd. v. Union of
India [2023] 150
taxmann.com 373
(Delhi)

The High Court held that it is clear from Section 83(2) of the CGST Act that the operation of an order provisionally attaching the bank account
would cease to be operative after the expiry of the statutory period of one year. In the aforesaid circumstances, the impugned order dated
13.01.2021 was declared to be ceased to be operative and thus it was held that no orders were required for setting aside the same

Snapshot-14-Snapshot of Latest GST Cases

Ex-Parte order without following Natural Justice
-Taxability of supply of Pre-Fabricated Building
-Issuance of Fresh Provisional Attachment after completion of one Year
-Cancellation of Registration from Retrospective date

S.No

Section

Case Subject

Case

Held

Cases Referred

1

73

Ex-Parte
Assessment
order without
following
Principle of
Natural Justice

CICO Patel JV v.
Union of India
[2023] 150
taxmann.com 226
(Patna)

Notwithstanding the statutory remedy, the high court is not precluded from interfering where, ex facie, an opinion is formed that
the order is bad in law on account of following reasons -
(a) violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to
represent his case;
(b) order passed ex parte in nature, does not assign any sufficient reasons even decipherable from the record, as to how the
officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the
principles of natural justice, entails civil consequences;
(c) The authorities not to have adjudicated the matter on the attending facts and circumstances.

-

2

Para 5 of
Schedule
III and
9406

Whether supply
of Pre-Fabricated
Building is
supply of goods
or supply of
completed
building

Radiant
Enterprises P. Ltd.
v. Joint
Commissioner,
Central Goods and
Services Tax &
Central Excise
(Appeal I) [2023]
150 taxmann.com
225 (Calcutta)

The petitioner contended that since they have purchased a pre-fabricated building, which consisted of factory-made components
or units that are transported and assembled on-site to form complete building, therefore the same shall not be liable to tax by
virtue of Paragraph 5 of Schedule III i.e. Sale of land and, subject to clause (b) of paragraph 5 of Schedule II, sale of building.
Considering the following reasons recorded by the Appellate Authority in holding against the petitioners, the High Court declined
to interfere with the impugned order of the Appellate Authority-
“I find that the appellant has purchased a Prefabricated Building classifiable under GST HSN Code 9406 from M/s. Eveready
Industries Ltd. Now a prefabricated building, informally a prefab, is a building that is manufactured and constructed using
prefabrication. It consists of factory-made components or units that are transported and assembled on-site to form the complete
building. Thus, it is evident from the invoice issued by M/s. Eveready Industries Ltd that they have supplied goods classifiable
under GST HSN Code 9406 to the appellant which is not specified in Section 7(2)(a) of CGST Act, 2017 and probably used
logistic services such as warehousing, flexi-storage by the appellant. Thus, it is evident that M/s. Eveready Industries Ltd have
not provided any Construction services of commercial buildings classifiable under GST service code number 99414. Thus, the
contention of the appellant cannot be sustainable”

-

3

Section
83

Issuance of
Fresh
Provisional
Attachment after
completion of
one Year

Madhav Copper
Ltd.
v. State of Gujarat
[2023] 150
taxmann.com 224
(Gujarat)

The petitioner contended that there was no power with the authorities to extend the provisional attachment beyond one year
with a fresh order.
The High Court observed that the proceedings for adjudication have already commenced with issuance of SCN under Section
74, therefore it would be rather a proper course to be adopted to direct the authorities to complete the adjudication proceedings
time-bound. Once the proceedings are over, the rights of the parties shall stand crystallized leaving the order of provisional
attachment to its own fate

-

4

Section
29

Cancellation of
Registration from
Retrospective
date wherein
SCN did not
provided any
such fact

Aditya Polymers v.
Commissioner of
Delhi Goods and
Services Tax
[2023] 150
taxmann.com 223
(Delhi)

The High Court observed that the SCN issued to the petitioner did not mention that the proper officer proposed to cancel the
registration with retrospective effect. Thus, the petitioner had no opportunity to address any proposed action of cancellation of
registration ab initio.
The High Court disposed of the petition with the direction that the cancellation of the petitioner's GST registration would take
effect from 11.12.2020 and not from 01.07.2017, since the petitioner submitted that the they would have no objection if the
registration is so cancelled from the date of SCN

-