The Kerala High Court dismissed writ petition challenging stay of income tax demand and observed that the High Court does not exercise parallel jurisdiction of Commissioner of Income Tax (CIT) to entertain stay application.
A Single Bench of Justice Dinesh Kumar Singh observed that “This Court fails to understand that how this writ petition is maintainable before this Court. This Court does not exercise the parallel jurisdiction of the Appellate Authority to entertain the stay application while the petitioner has not chosen to file the stay application in the appeal itself. Thus I find no ground to entertain this writ petition. Therefore, the writ petition is hereby dismissed. However, the Appellate Authority is directed to proceed with the appeal expeditiously and finalise the same, preferably within a period of six months, in accordance with law.”
The Kerala High Court quashed the penalty proceedings under the Income Tax Act, 1961 as no date for hearing was fixed after service of the show cause notice (SCN).
“This Court is of the view that since the order impugned has been passed in violation of the principles of natural justice as no date of hearing was communicated to the petitioner after petitioner’s reply dated 12.4.2023 to the show cause notice dated 6.4.2023, the impugned order dated 8.6.2023,is set aside and the matter is remanded back to the 4th respondent to communicate the date of hearing to the petitioner on the Portal of the Income Tax Department and also through the e-mail id given to the Income Tax Department.”
The present writ petition has been filed under Article 226 of the Constitution of India impugning the assessment order dated 26.12.2022 in respect of the assessment year 2021-22.
A Single Bench of Justice Dinesh Kumar Singh observed that “The petitioner was put to notice and thereafter the assessment proceedings had been completed. Therefore, I do not find that the impugned assessment order is without jurisdiction or there has been any violation of principles of natural justice. This Court would not like to consider the merits of the assessment order. The petitioner was given notice under Section 142(1) of the Income Tax Act.” “In view of the above, the present writ petition is disposed of with liberty to the petitioner to file appeal under Section 246A of the Act before the appellate authority against the impugned assessment order, within a period of fifteen (15) days from today” the Court concluded.
The Kerala High Court directed the Customs Excise and Service Tax Appellate Tribunal (CESTAT) to consider provisional release of re-imported cashew products considering perishability.
A Single Bench of Justice Dinesh Kumar Singh observed that “Considering the fact that the goods have limited shelf life and any delay in its release may erode the value of the goods completely, interest of justice would be met only if the first respondent-Tribunal disposes of the application of the petitioner, Ext.P6, expeditiously.” “In view of the above, the present writ petition is disposed of with a direction to the first respondent-Tribunal to take a decision on the application of the petitioner, for provisional release of the re-imported goods, expeditiously, preferably within a period of two weeks from today, in accordance with law” the Bench concluded.
The petitioner has approached the High Court in the writ petition for a direction to the 3rd respondent, Administrator to furnish the shipping document or best evidence in respect of the supplies made by the petitioner to the Union Territory of Lakshadweep Administration for the purpose of availing concessional rate of tax @ 4% under proviso to Section 6(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act).
A Single Bench of Justice Dinesh Kumar Singh observed that “Considering the fact that at the earlier round of litigation before this Court, this Court has not granted similar reliefs as sought for in this writ petition, I am of the considered view that the present writ petition is not maintainable. The Union Territory of Lakshadweep Administration may be correct in saying that for supplies made during 2005 to 2010, at this point of time documents may not be available. In view thereof, I find no ground to issue direction as sought in this writ petition. Therefore, the present writ petition is hereby dismissed, however, devoid of any cost.”
The Kerala High Court commissioner of customs has valid sanction and has the power to discharge functions and duties under section 137 of the Customs Act, 1961.
A single bench of Justice P G Ajithkumar dismissed, the revision petition, however without prejudice to the right of the petitioners to raise their contention as a defence at the trial.
The Kerala High Court directed to approach an enforcement officer for the release of goods confiscated under the Central Goods and Service Tax (CGST) Act, 2017 on surety and bond.
A single bench of Justice Dinesh Kumar Singh disposed of the writ petition with liberty to the petitioner to approach the 1st respondent for release of the vehicle and the 1st respondent will decide for release of the vehicle on furnishing bond and sureties, by the law.
The Kerala High Court dismissed the writ petition by premier auto sales which was filed against the demand of Goods and Service Tax (GST) under the CGST Act due to Non-filing of GSTR 3.
A single bench of Justice Dinesh Kumar Singh held that “However, it will be open to the petitioner to file an appeal against the impugned order before the appellate authority under the provisions of Section 107 of the CGST Act, inasmuch vide notification No.53/23 issued by the Central Board of Indirect Taxes, Ministry of Finance, Government of India, the limitation for filing the appeal has been extended up to 31.1.2024 for the assessment years 2017-18 and 2018-19.”
In a recent case, the Kerala High Court was allowed to pay 20 % of the total tax due as value-added tax (VAT) Appeal was stayed until depositing the amount.
A single bench of Justice Dinesh Kumar Singh gave liberty to the petitioner to pay 20% of the total tax demand in three equal monthly instalments, spread over three succeeding months, the first of which should be paid on or before 1.12.2023 and the remaining two instalments on or before 7th of two succeeding months. Further held that “in case the petitioner fails to deposit the first instalment or any subsequent instalments as above, it would be deemed that there is no interim order staying the demand and the authority may proceed to recover the amount, by law.”
The Kerala High Court set aside the assessment order which was passed without issuing proper notice as per section 250 of the Income Tax Act, 1961. The Court ruled that failure to issue notice fixing the date and place of hearing as per section 250 of the Income Tax Act is Invalid.
A single bench of Justice Dinesh Kumar Singh viewed that it was incumbent on the Commissioner (Appeals) to fix the date and place of hearing in the appeals and for that purpose, a notice ought to have been issued to the petitioner herein as per the provisions of Section 250 of the Income Tax Act. No such notice fixing the date and place of hearing was issued after the filing of the written submission by the petitioner. The Court found that the impugned orders had been issued in violation of the procedure prescribed under Section 250 of the Income Tax Act for hearing and deciding the appeals. While allowing the writ petition the court set aside the impugned order and remanded the matter back to the file of the respondent to pass a fresh order by the law.
In a recent case, the Delhi High Court directed to restore canceled Goods and Service Tax (GST) registration without affording an opportunity to be heard. The petitioner is an Association of Persons, constituted by ATT Sys India Pvt. Ltd. and Estex Tele Private Limited. The petitioner, Att Sys India Pvt Ltd Estex Tele Private Limited Consortium, filed the appeal by praying for a direction to be issued for revoking the order canceling the petitioner’s GST registration.
The court during the proceedings noted that the petitioner’s GSTIN cancellation reasons are not entered in the designated section. Therefore, there is no justification listed in the SCN for the petitioner’s GST registration to be canceled. After analyzing the facts and arguments of both parties, a division bench of Justice Vibhu Bakhru and Justice Amit Mahajan directed to restore canceled Goods and Service Tax (GST) registration, and the petitioner should also comply with the statutory provisions by filing the returns in accordance with the law.
In a recent case, the Delhi High Court rejected an application from an international hawala operator seeking permission to travel abroad. Petitioner Jai Prakash Singhal filed an appeal against the ASJ’s order dismissing his application to travel to Dubai for 30 days to appoint someone to oversee his business. The petitioner prays for the order to be set aside, requesting permission to travel abroad for this purpose.
The court observed that the petitioner, granted anticipatory bail with conditions, failed to present a compelling case for travel. Despite owning a firm in Dubai, the court emphasized the ability to manage it remotely. In conclusion, Justice Swarana Kanta Sharma rejected the hawala operator’s application for permission to travel abroad, considering the ongoing investigations and the petitioner’s failure to establish a strong case for overseas travel.
In a recent case, the Kerala High Court dismissed the writ petition challenging the bank guarantee given against the demand due to customs duty in the absence of fraud or irretrievable injury to the person who furnished the guarantee. The bank guarantee was furnished against demand for customs duty as the asseseee imported goods in violation of the Export Promotion of Capital Goods Scheme (EPCG) Scheme.
A single bench of Justice Dinesh Kumar Singh held that the writ petition was not maintainable and dismissed the same. Further held that the 1st respondent should proceed with adjudication of show cause notices by law, expeditiously.
In a recent case, the Delhi High Court held that no specific approval of the monitoring committee is required for alterations in computational errors that occurred in the amount of tax.
After analyzing the facts and arguments of both parties, a division bench of Justice Vibhu Bakhru and Justice Amit Mahajan held that no specific approval of the monitoring committee is required for altering computational errors in the amount of tax.
In a recent case, the Delhi High Court dismissed the revenue appeal, holding that the department framed the assessment order without issuing notice under Section 143(2) of the Income Tax Act. The appeal, filed by the Pr. Commissioner Of Income Tax against the ITAT order in favor of assessee Grand Express Developers Pvt. Ltd., challenged the CIT(A)’s decision to quash the assessment order due to the absence of notice under Section 143(2) before framing.
The court, considering both parties’ arguments, observed that no Section 143(2) notice was issued before framing the assessment order. It clarified that Section 292BB doesn’t guarantee a total lack of notice but addresses flaws in the notice-serving process, emphasizing the necessity of the department sending the notice for the section to be applicable.
In a significant case, the Kerala High Court, while observing the unreported ex-partners, issued a one-month stay on tax demands. Therefore, it directed that, for a period of one month, no coercive measures should be taken against the petitioners in pursuance of the impugned Ext.P4 to Ext.P7 revenue recovery notices concerning arrears of Value Added Tax.
After analyzing the facts and arguments, the single bench of Dinesh Kumar Singh disposed of the case with a direction for the petitioners to approach the assessing authority within ten days for obtaining the certified copy of the assessment order. After obtaining the certified copy, they should file an appeal before the appellate authority in accordance with the provisions of the law. Therefore, the single bench directed that, for a period of one month, no coercive measures shall be taken against the petitioners in pursuance of the impugned Ext.P4 to Ext.P7 revenue recovery notices regarding arrears of Value Added Tax.
In a recent verdict, the Madhya Pradesh High Court nullified a show cause notice and order of demand issued against Raymond Limited, asserting that a minimum of 30 days is imperative to provide a ‘reasonable opportunity’ for the respondent to respond, aligning with Section 73 of the Central Goods and Services Tax Act.
The concluding decision allows Raymond to set aside the impugned show cause notice and order of demand, offering the Revenue the option to issue a fresh, legally valid notice, provided it affords a reasonable and sufficient opportunity for the petitioner to be heard. Advocates Gopal Mundhra, Ginita Badhani, and Rohan Harne represented Raymond Limited, while Advocate Darshan Soni represented the respondent tax authorities.
A Single Bench of the Kerala High Court has set aside a notice served to petitioner, demanding interest for the period during which the registration of the petitioner was canceled, without due notice for non-filing of returns caused by technical glitches in the Goods and Services Tax Portal.
The Bench of Justice Dinesh Kumar Singh acknowledged the petitioner’s predicament, emphasizing that without a valid GSTIN, remitting tax and filing returns were impossible. The court thus held the impugned order invalid, while granting authorities the liberty to impose penalty on delayed payments post-GSTIN restoration from December 26, 2017. Any subsequent delays would attract interest, the court held. This judgment clarifies the equitable treatment of businesses facing GSTIN-related challenges and emphasizes the importance of fair application of tax laws.
The Kerala High Court directed to dispose of the statutory appeal expeditiously as the excise authority refused to take timely action on the High Court Order which led to the denial of the opportunity to participate in auction.
A single bench of Justice Devan Ramachandran allowed the writ petition and directed the 8th respondent to take up statutory revision and dispose it of, after affording the petitioner, respondents 6 and 7, as well as any other person who may be interested, an opportunity of being heard, culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than two months.
The Kerala High Court dismissed the writ petition against the assessment order as the assessee failed to participate in proceedings under Section 147 of the Income Tax Act, 1961.
A single bench of Justice Dinesh Kumar Singh observed that every communication/notice is not only uploaded in the portal but is also communicated in e-mail with real-time alerts by messages. Since the petitioner did not participate in the assessment proceedings initiated under Section 147 read with Section 148 since the petitioner did not file a return of his income, the court dismissed the petitioner leaving it open to the petitioner to file any other remedy.
In a significant case, the Kerala High Court directed the customs commissioner to release a consignment of imported goods having limited shelf life on payment of Customs Duty.
A single bench of Justice Dinesh Kumar Singh disposed of the writ petition with a direction to the 2nd respondent / 3rd respondent to consider the representations of the petitioner and to pass the necessary order. On such consideration, the petitioner should be intimated the differential duty and tax, if any, to be paid by the petitioner. On payment of the differential duty and tax if any, the petitioner’s goods should be released by the law. If the petitioner disputes the duty, he should make the payment under pretest.
The Kerala High Court directed the excise commissioner to decide on pending provisional permission to operate the shop wherein the License to run the shop was transferred to the son through the mother’s will.
It was observed that these are matters that will have to be decided by the 1st respondent appositely. A single bench of Justice Devan Ramachandran noticed that the applications are pending, namely, for transfer of the licence and for provisional permission to operate the shop until such time, it is allowed. The court allowed the writ petition and directed the 1st respondent to take up applications and if possible, issue appropriate final orders within a period of two weeks.
The Kerala High Court directed the respondent to dispose of the customs appeal within 4 months as the Commissioner (Appeals)was already directed to dispose of the appeal instituted by the petitioner against the order in original.
Considering the said submission, a single bench of Justice Dinesh Kumar Singh submitted the present writ petition is closed as having been rendered infructuous with a direction to the Commissioner (Appeals) to dispose of the appeal instituted by the petitioner against the impugned order in original No. 73/2023 dated 05.09.2023 expeditiously, preferably within four months in accordance with the law. The Court closed the writ petition.
The Kerala High Court directed to release of the bus confiscated under the Narcotic-Drugs-and-Psychotropic-Substances-Act-1985 (NDPS Act) for carrying dried ganja after depositing a bank guarantee prescribed by law.
While setting aside the order, the single bench of Justice P V Kunhikrishnan directed the Additional Sessions Judge-IV, to get a valuation certificate of the vehicle from the competent authority and if the petitioner is ready to furnish a bank guarantee for the value of the vehicle, the vehicle shall be released to the petitioner, after imposing appropriate conditions as held by the Apex Court in Sunderbhai Ambalal Desai v. State of Gujarat.
The Kerala High Court disposed of the writ petition with liberty to the petitioner to approach the Goods and Service Tax (GST) Appellate authority.
A single bench of Justice Dinesh Kumar Singh observed that against the orders impugned in the writ petition there is a remedy of appeal under Section 107 of the Central Goods and Services Tax Act, 2017. The limitation for filing of appeal in respect of the financial years 2017-18 and 2018-19 has been extended up to 31.01.2024 vide the notification No.53/2023 dated 02.11.2023 issued by the Central Board of Indirect Taxes and Customs. The Court disposed of the writ petition with liberty to the petitioner to approach the Appellate Authority under the provisions of the CGST/SGST Act, 2017 against the orders impugned in this writ petition within a month.
The Punjab and Haryana High Court imposed Rs. 10,000 costs on income tax dept on failure to serve notice under Section 148A(b) of the Income Tax Act, 1961.
“Accordingly, the present writ petition is allowed with Rs.10,000/- as costs imposed upon the respondent-Revenue, to be paid to the petitioner. Notice and order, both dated 04.04.2022 are quashed. The petitioner shall file reply to the notice within a period of 15 days from today and it is open to the Revenue to proceed in accordance with law, thereafter” the Court concluded.
The Andhra Pradesh High Court has invalidated a demand order issued under Section 73(9) of the Goods and Services Tax (GST) Act, stating that the unsigned order holds no legal standing. The bench of Justice Ravi Nath Silhari and Justice A V Ravindra Babu, emphasised that an unsigned order is deemed nonexistent in the eyes of the law.
The court, therefore, allowed the petition partially, emphasising that the order’s lack of signatures is a fundamental flaw. The impugned order was set aside, and the Competent Authority was directed to issue a fresh order in accordance with the law, taking into account the petitioner’s already submitted reply and any additional response within a specified timeframe.
The Kerala High Court upheld the blocking of the input tax credit (ITC) in the matter relating to firm making fictitious transactions by way of generating E-way bills.
A Single Bench of Justice Dinesh Kumar Singh observed that “Considering these facts that on the basis of fake invoices the petitioner had raised the claim for input tax credit on the supplies allegedly received on the basis of the fake invoices, the communication has been issued. Decision to block input tax credit is an administrative decision. I do not find any substance in this writ petition. The reason for blocking the input tax credit is the fake invoice and fake address of the firm from whom the petitioner had allegedly received the supply. Thus this writ petition is dismissed. The petitioner may avail to any other remedy as may be available to him under the law.”
The Kerala High Court upheld the revision proceedings to correct wrong rate of tax applied to benefit assessee in assessment order.
A Division Bench comprising Justice Dr AK Jayasankaran Nambiar and Justice Kauser Edappagath observed that “We see no reason to doubt the correctness of the findings of the Single Judge, who has relied on various decisions of the Supreme Court to come to his conclusion. We also find that, at any rate, the right of the appellant to challenge the order proposed to be passed by the Assessing Officer pursuant to the revision order passed in accordance with Section 263 of the Income Tax Act has been reserved to the appellant. The appellant therefore cannot be seen as prejudiced in any manner.”
In a recent decision the Kerala High Court observed that advance notice on vacancy of building mandatory for remission of property tax.
A Single Bench of Justice Dinesh Kumar Singh observed that “In the present case, it is evident that after 2020-21, no valid notice has been delivered as is required under subsection (3) of Section 239 of the Kerala Municipality Act. In the absence of the notice, there arises no occasion for the Municipality to grant remission of the property tax as claimed by the petitioner. Delivery of notice by the owner in advance to claim remission in the succeeding half-year of the financial year is sine qua non to claim remission. Therefore, I do not find that the impugned order suffers from any illegality or jurisdictional error. The writ petition has no merit or substance, which is hereby dismissed.”
The Madras High Court recently observed that the prosecution is not sustainable when tax payable after credit of prepaid taxes is less than Rs 3000.
A Single Bench of Justice GK Ilanthiraiyan observed that “The proviso in clause (ii) of b to Section 276CC provides that if the tax payable determined by regular assessment has reduced by advance tax paid and tax deducted at source does not exceed Rs.3,000/-, such an assessee shall not be prosecuted for not furnishing the return under Section 139(1) of the Income Tax Act. Therefore, this proviso takes care of genuine assessees who either file the returns belatedly but within the end of the assessment year or those who have paid substantial amounts of their tax dues by prepaid taxes from the rigor of the prosecution under Section 276CC of the Income Tax Act.”
In a recent case, the Delhi High Court quashed an appeal filed for the levy of a penalty under Section 271(1)(c) of the Income Tax Act, 1961, due to a failure to clarify the ground on which the penalty was levied.
According to the Tribunal, this issue had already been covered against the appellant/revenue in several judgments. The tribunal dismissed the appeal and stated that the case of Pr. Commissioner of Income Tax v. Gopal Kumar Goyal, concerning the same Assessment Year (AY) 2004-05, came up for adjudication before this court. After analyzing the facts and arguments of both parties, a division bench of Justice Rajiv Shakdher and Justice Girish Kathpalia held that the said appeal preferred by the appellant/revenue was closed with a detailed order, concluding that no substantial question of law arose for consideration.
In a recent case, the Delhi High Court, while closing the appeal as no substantial question of law, held that documents found at the business premises of partnership firms could not be used against partners. The appeal is filed by the Principal Commissioner Of Income Tax against the order of the Income Tax Appellate Tribunal (ITAT).
Thus, the division bench held that it is not necessary for the court to address the other legal issues raised in the contested order, such as whether a document discovered at the partnership firm’s office could not be utilized against the partners. The revenue does not dispute that any of the factual conclusions mentioned above are erroneous.
The Allahabad High Court recently observed that the enhancement of turnover not necessary consequence for rejection of Books of Accounts under the Uttar Pradesh Value Added Tax (UPVAT) Act, 2008.
A Single Judge Bench of Justice Piyush Agarwal observed that “Once the findings of fact have been recorded in favour of the petitioner, there is no cogent reason for enhancing the turnover. The tribunal was not justified in confirming the enhancement of turnover in view of the fact that at the time of survey loose papers were found which have been explained by the revisionist and merely on that ground the books of account can be rejected but enhancement should not be made.”
The Delhi High Court corporate veil of the company will be lifted when fraud or improper conduct results in tax evasion under the Excise Act, 1944.
The division bench comprising Acting Chief Justice and Justice Mini Pushkarna observed that the “doctrine of the lifting of the corporate veil is well recognized and the face of the company can be examined in substance in appropriate matters. The Supreme Court has held that where fraud or improper conduct is intended to be prevented a taxing statute or a beneficent statute is sought to be evaded or where associated companies are inextricably connected as to be in reality part of one concern, the corporate veil may be lifted. “ In light of various judgments, the court dismissed the writ petition.
In a recent case, the Kerala High Court rejected the assessee’s claim for a service tax refund to meet the Value Added Tax(VAT) demand on the pest control contract and dismissed the writ petition.
A single bench of Justice Anu Sivaraman has observed that the claim of the petitioner that the Service Tax Authorities must be directed to meet the demand of VAT, if any, found payable by the petitioner cannot be accepted under the circumstances. The said contention is devoid of merits. The prayer to that effect is declined.
The Division Bench of Kerala High Court has stayed recovery proceedings under income tax until the disposal of stay application and appeal by the appellate authority.
Accordingly, the Bench modified the impugned judgement of the Single Judge to the limited extent of clarifying that pending disposal of the stay application or appeal whichever was earlier, by the appellate authority, the recovery proceedings against the appellant for recovery of the amounts confirmed against him by assessment order should be kept in abeyance. Save for this limited modification, the rest of the directions in the impugned judgement were not interfered with.
A Single Bench of Kerala High Court has directed the National Faceless Appeal Centre (NFAC) to decide the appeal against the demand notice under Section 147 of the Income Tax Act 1961, in a time bound manner.
A Single Bench of Justice Dinesh Kumar Singh disposed the writ petition observing that, “When the appellate authority seized the matter, this Court would not like to exercise its writ jurisdiction parallelly. It would be sufficed to direct the 2nd respondent to decide the appeal pending before it in accordance with the law within a period of two months, and if it is not possible to decide the appeal finally within two months, the stay application be decided within a period of two months from today in accordance with the law.”
A Single Bench of Kerala High Court has directed re-adjudication as the order under Section 148A(d) of the Income Tax Act was passed without providing opportunity of being heard.
A Single Bench of Justice Dinesh Kumar Singh allowed the writ petition and set aside the impugned order. The matter is remitted back to the file of the respondent to pass fresh orders in accordance with the law after giving notice of hearing to the petitioner.
A Single Bench of Kerala High Court has directed the Kerala Value Added Tax Appellate Tribunal to decide extension of interim order within 3 weeks.
A Single Bench of Justice Basant Balaji directed the Kerala Value Added Tax Appellate Tribunal, Kozhikode to take up a petition to extend the interim order and pass appropriate orders within a period of three weeks from today.
The Kerala High Court has recently made a significant decision regarding the ongoing investigation into the financial transactions of the Kerala Infrastructure Investment Fund Board (KIIFB). The court has granted permission to the Enforcement Directorate (ED) to issue new summons to former Kerala Finance Minister Thomas Isaac in connection with this case. The decision was made by Justice Devan Ramachandran’s bench, which also involved the modification of earlier interim orders.
Importantly, Thomas Isaac has been granted the right to approach the High Court if any issues or concerns arise in connection with the summons issued by the ED. The court has scheduled the next hearing for the petitions related to this case on December 1, indicating that further developments and decisions will be made in the coming days.
The Punjab and Haryana High Court quashed income tax addition under Section 69 of the Income Tax Act, 1961 as sufficient explanation on source of investments given on HSBC Geneva Deposits.
Quashing the income tax addition a Division Bench of Justices GS Sandhawalia and Harpreet Kaur Jeewan observed that “Sufficient explanation has been given regarding this fact by filing an affidavit, which has not been taken into consideration by the Assessing Officer or by the Commissioner of Income Tax. The assessee being an agriculturist and only having a small holding of land apparently could not be in possession of such huge amounts, which were also in foreign currency. Nothing as such was produced on record that the same was transferred from India where he was doing some business.”
The Gujarat High Court has held that refund of Integrated Goods and Service Tax (IGST)on export goods being zero rated supplies allowable as excess drawback was repaid and directed the respondent to sanction refund along with interest.
A division bench of Justice Biren Vaishnav and Justice Bhargav D Karia directed the respondents to sanction the refund of IGST paid in context of shipping bills referred to in para 24(b) of the petition with simple interest @ of 6% from the date of the Shipping bills till the date of actual refund.
Observing that the company not to challenge root of contract on change in tax laws, the Calcutta High Court denied GST refund to the petitioner, M/s. Kayal Construction.
A Single Bench of Justice observed that “If the petitioner argues that mere replacement of GST entitles the petitioner being absolved from such payments, by the same logic it could also claim to be relieved of the liability to pay all taxes just because the same has been enhanced. Price escalation, being not provided for in the contract, cannot be read into the contract just because a new taxation regime has replaced the earlier one. Hence, none of the logical stratagems sought to be adopted by the petitioner helps the petitioner in any manner insofar as the instant case is concerned.” “In view of the above discussions, there is no scope of directing refund of the GST paid by the petitioner in respect of any of the work orders/contracts involved in the four connected writ petitions” the Court concluded.
The Allahabad High Court in the case of revision application under section 58 of the Uttar Pradesh (UP)Value Added Tax Act, 2008, held that the benefit of exemption /deduction must be decided by following a stricter approach.
“The general rule of law in taxing statutes is that in case of any doubt, the benefit should be given to the assessee. However, in case of exemption and deduction to be given, a stricter approach may be followed, as per the catena of judgments of the Supreme Court, to examine whether the assessee is eligible for such benefit. In the present case, there is no factual dispute of goods having been imported from outside the State of U.P. and, therefore, the assessee qualifies for the said benefit.”, Justice Shekhar B. Saraf.
The Allahabad High Court ruled that notice should be served on the legal representative of the deceased before proceeding under the Goods and Service Tax Act, 2017 (GST Act).
A Division Bench of Chief Justice Pritinker Diwaker and Justice Ashutosh Srivastava observed that “We are of the opinion that the department was required to serve notice upon the petitioner being the legal representative of the deceased before proceeding in the matter. The impugned order nowhere records that notice issued by the department was served upon the petitioner being the legal representative of the deceased assessee.”
The Delhi High Court recently observed that the Tax Research Unit (TRU) not statutorily recognized to issue clarification or directive under Section 168 of the Central Goods & Services Tax Act, 2017 (CGST Act).
A Division Bench of Justices Yashwant Varma and Dharmesh Sharma observed that “We have for reasons aforenoted come to conclude that in the absence of a conferral of any power upon the TRU, or it being recognized as being statutorily enabled to issue any clarification or directive under Section 168 of the CGST Act, the circular is liable to be quashed and set aside on this ground alone.”
The Andhra Pradesh High Court has dismissed the Writ Petition against the denial of GST input tax credit (ITC) claim done manually and not by filing Form GST ITC 02 electronically. It was found that the assessee failed to submit evidence before the respondent even after providing an opportunity.
A division bench comprising of Justice Ravi Nath Tilhari & Justice A V Ravindra Babu observed that the petitioner has not been deprived of availing the input tax credit as of now, but the show cause notice has been issued granting the opportunity. The petitioner has the opportunity and on such opportunity on verification of such fact, the authority has yet to consider the petitioner’s claim of input tax credit. It was argued that the petitioner should approach the authority which has issued the show cause notice and file the objections with evidence, and if so desire, to avail the opportunity of personal hearing with due intimation to the authority concerned. Since the period granted to the petitioner to file the objections and appear before the authority concerned has already expired, the court held that “if the petitioner files objections with evidence and shows his willingness for personal hearing, within one week from the date of receipt of copy of this order to the authority concerned, the same shall be considered and decided, as expeditiously as possible, preferably within 4 (four) weeks from the date of receipt of copy of this order, by law.”
The Delhi High Court observed that the recovery towards tax at source (TAS) cannot be made on deductee when deductor Is undergoing Corporate Insolvency Resolution Process (CIRP).
The Court also noted that he deductee, i.e., the petitioner followed the regime framed in the Act, for collecting TAS albeit through an agent of the government, i.e., the deductor. It was the agent, i.e., Ninex who was required to deposit the tax with the government. In this case, the agent is, as noticed hereinabove, undergoing CIRP, therefore, possibly the ability of the Central Government to recover the amount from the agent may seem remote. “In our view, Section 199 of the Income Tax Act cannot come in the way of granting the deductee being granted credit of TAS deducted by Ninex” the Court concluded.
The Delhi High Court directed to grant a refund of Integrated Goods and Service Tax (IGST) during a transitional period after deducting the differential amount of duty drawback.
It was clarified that the concerned officer is also entitled to verify the extent of duty drawback availed by the petitioner and other relevant facts for processing the petitioner’s claim for refund. Needless to say, the concerned officer is also required to make the requisite adjustments where necessary in respect of duty drawback while processing the petitioner’s refund claim.
The Delhi High Court has held that recovery proceedings under Income Tax Act, 1961 must be against the deductor when fails to pay Tax at Source (TAS) to the Government. It was made clear that no recovery towards Tax at Source (TAS) can be made towards the deductee even if the deductor is undergoing the Corporate Insolvency Resolution Proceedings.
A division bench comprising of Justice Rajiv Shakdher and Justice Girish Kathpalia disposed of the writ petition with the direction that the petitioner will be given credit for TAS amounting to Rs.29,16,674/-, even though it is not reflected in Form 26AS. It was held that “since the petitioner has lodged a claim with the RP if it were to receive any amount, it will deposit the amount not exceeding TAS deducted at source by Ninex with the revenue forthwith. The petitioner will ensure that, for whatever its worth, its claim about TAS deducted by Ninex is pressed before the RP.”
The Delhi High Court held that Section 40(a)(ia) of the Income Tax Act, 1961 is declaratory and retrospective and closed the petition in the absence of substantial question of law.
Since the appeal does not bear any substantial question of law, the division bench of Justice Rajiv Shakdher and Justice Girish Kathpalia closed the appeal on relying on the decision that the Supreme Court may take in the respondent‟s/assessee‟s case for AY 2007-08.
The Delhi High Court condoned the 79 days of delay in filing an appeal under the Income Tax Act, 1961 considering the time review proceedings initiated. The assessee filed the review application for the Income Tax Appeal order when the department failed to give a copy of the order and passed the order without informing the assessee.
A division bench of Justice Rajiv Shakdher and Justice Girish Kathpalia viewed that the time spent by the applicant while pursuing the review proceedings deserves to be excluded even under principles analogous to Section 14 of the Limitation Act because the applicant in good faith was prosecuting the challenge to the impugned order before the Tribunal with due diligence but the Tribunal was unable to entertain the review on account of defect of jurisdiction. The court viewed that the case was set up by the applicant to be an “explanation” and not an “excuse”. Further observed that the applicant having brought before us a cause with sufficient explanation concerning the delay, cannot be shown door and thus allowed the application under consideration by condoning the delay in filing the appeal.
The Delhi High Court directed the assesse to file a revocation application of Cancellation of Goods and Service Tax (GST)as the GST department refused to update the current place of business due to which the Registration under GST got cancelled.
A division bench of Justice Vibhu Bakhru and Justice Amit Mahajan disposed of the petition by permitting the petitioner to apply for revocation of cancellation of its GST registration, and also substantiate that it is carrying on its business from another premises. “If the said application for revocation of cancellation of GST registration is filed within two weeks from today alongwith the relevant documents, the Proper Officer shall consider the same and pass a speaking order within one week from the said date, uninfluenced by the previous order(s). “, the bench held.
The Delhi High Court set aside the Trade Notice issued by the Directorate General of Foreign Trade (DGFT), inter alia, setting out the conditions of eligibility and procedure for allocation of quota for export of broken rice on humanitarian food security grounds as the department failed to prove rational nexus on classification of export quota to exporters having past export experience.
A division bench of Justice Vibhu Bakhru and Justice Amit Mahajan viewed that there is no material on record, which would even remotely suggest that persons who have exported broken rice to the respective countries would have a higher capacity to export rice or the quality of broken rice to be exported by them would in any way be superior than that which may be exported by rice exporters who had exported to other countries in the past. The counter affidavit filed by the respondents also does not set out any material to suggest that the rice exporters having experience of exporting rice in a particular country, would be better placed to service the export orders from that country in comparison with other exporters with established track records. The court viewed that the respondent has not produced any material to establish any rational nexus between restricting the export quote to rice exporters that had exported rice during the three financial years preceding the prohibition of export of broken rice, and the object of ensuring capacity and quality. The court set aside the impugned trade notice and directed the respondent to re-evaluate the criteria for allocation of quota for the export of broken rice.
The Delhi High Court directed the Income Tax Department to grant documents to the petitioner, Priyanka Saraswat Dev, in the matter of income tax demand of Rs. 436 crores raised without granting adequate opportunity.
A Division Bench of Justices Rajiv Shakdher and Girish Kathpalia observed that “Ruchir Bhatia, senior standing counsel, who appears on behalf of respondent/revenue, says that the directions contained in the order dated 23.03.2022 passed in W.P.(C) 4649/2022 and the order passed in CM No. 45193/2023 filed in W.P.(C) 4649/2022 can be applied mutatis mutandis to this writ petition as well.”
The Delhi High Court quashed income tax addition made in relation to unexplained credit entry concerning share capital.
A Division Bench of Justices Rajiv Shakdher and Girish Kathpalia observed that “This addition was made on account of purported unexplained credit entry concerning share capital/share premium. A perusal of the impugned order shows that the Tribunal concluded in favour of the respondent/revenue, based on the judgment rendered by its Kolkata Bench in ITA No. 271/Kol/2014, titled ITO vs Blessings Commercial Pvt. Ltd. This decision concerned AY 2010- 11. 11. To be noted, according to the AO, Blessings Commercial Pvt. Ltd. was one of the investors in the share capital/share premium received by the appellant/assessee.” “In these circumstances, the impugned order is set aside and the matter is remanded to the Tribunal for a fresh hearing. Needless to add that, we have not examined the merits of the matter. The Tribunal will, thus, be free to arrive at its own conclusion while deciding the matter on merits. To hasten the proceedings, we direct that the matter will be placed before the concerned bench of the Tribunal, albeit, for directions, on 01.12.2023. The Tribunal will thereafter progress the matter further” the Court concluded.
The Kerala High Court dismissed the writ petition as the assessee failed to appeal within the prescribed limitation period against the service tax demand under the Central Goods and Service Tax (CGST)Act, 1961.
A single bench of Justice Dinesh Kumar Singh held that “Since the order does not appear to be without jurisdiction, nor has there been a violation of Article 14 of the Constitution of India since the petitioner was issued show cause notice, he filed a reply, and he was also granted an opportunity of hearing, I do not find any ground to interfere with the impugned order and notice. “
The Delhi High Court quashed the show cause notice issued in violation of Rule 25 of the Central Goods and Services Tax Rules, 2017 (CGST Rules) as there was cancellation of GST registration on that principal place of business not found.
A Division Bench of Justices Vibhu Bakhru and Amit Mahajan observed that “It is apparent from the above that the petitioner’s contention regarding the impugned SCN being in violation of Rule 25 of the CGST Rules has not been addressed. The petitioner also asserts that it is carrying on the business from its principal place of business and if a proper investigation is carried out, the same would be confirmed.” “In view of above, we set aside the impugned order dated 17.10.2023 and remand the matter to the Proper Officer to consider the petitioner’s application for revocation of order cancelling its GST registration, afresh. The petitioner is also at liberty to file additional material and documents before the concerned officer to establish that it is functioning from the principal place of business, within a period of two weeks from today” the Court noted.
In a recent case, the Delhi High Court held that mere allegations of import of goods by another person in the name of importers mentioned in bills of entry were not valid to the doubtful identity of the importer and upheld the order setting aside the suspension of the license of Customs House Agent (CHA).
A division bench of Justice Yashwant Varma and Justice Dharmesh Sharma viewed that “There was proper verification on the part of the respondent/CHA about the genuineness of the IEC as also GSTIN and mere allegations that some other person was importing goods in the name of the importers, whose names were mentioned in the Bills of Entry, did not render the identity of the importer doubtful especially when there was an arrangement with mutual consent of the importer and the beneficial owner and in the said circumstances there was no basis for the Adjudicating Authorities to pass the impugned order thereby suspending the license of the CHA based on the statements of the importers, which were otherwise also retracted. “ The Court held that the CESTAT neither committed any patent illegality nor any manifest error in appreciating the evidence on the record and dismissed the petition.
The Kerala High Court dismissed the writ petition alleging that the notice under the Income Tax Act, 1961 was not received by the petitioner as the intimation was automated through email and SMS registered in the portal.
A single bench of Justice Dinesh Kumar Singh viewed the submission of counsel for petitioner that the petitioner did not receive intimation/notice regarding hearing of the appeal is not valid. The Court dismissed the writ petition by stating that “it is open to the petitioner to take recourse to the remedy available under the statute before the Income Tax Appellate Tribunal against the impugned appellate order. If the petitioner files an appeal before the ITAT within three weeks, the ITAT shall consider the appeal and take a decision expeditiously, by law, without going into the question of limitation.”
In a recent judgement, the Kerala High Court setaside an order passed under section 148 A (d) of the Income Tax Act, 1961 which was passed without providing the opportunity to be heard.
Mr Christopher Abraham Standing Counsel for the Revenue submitted that he did not have instructions regarding the opportunity of being heard given to the petitioner before the order under Section 148A(d) came to be passed. While allowing the writ petition, the single bench of Justice Dinesh Kumar Singh set aside the impugned order and remitted the matter back to the file of the respondent to pass fresh orders by the law after giving notice of hearing to the petitioner.
The Kerala High Court dismissed the writ petition as the assessee failed to appeal within the prescribed limitation period against the service tax demand under the Central Goods and Service Tax (CGST)Act, 1961.
A single bench of Justice Dinesh Kumar Singh held that “Since the order does not appear to be without jurisdiction, nor has there been a violation of Article 14 of the Constitution of India since the petitioner was issued show cause notice, he filed a reply, and he was also granted an opportunity of hearing, I do not find any ground to interfere with the impugned order and notice. “
In a recent judgement, the Kerala High Court set aside the order passed under income tax without considering a request for a personal hearing through video conferencing.
While allowing the petition, the Court set aside the impugned order and the matter is remanded back to the file of the 2nd respondent to decide the appeal afresh after affording an opportunity of hearing to the petitioner for which a communication should be sent to the petitioner intimating him the date and time for personal hearing.
The Kerala High Court dismissed the writ petition against the income tax order for non-prosecution.
Thayyil Balakrishnan Pradeep, the petitioner filed the writ petition under the Income Tax Act, 1961. It was found that none appeared for the petition. The present writ petition is dismissed for non-prosecution. A single bench of Justice Dinesh Kumar Singh dismissed the writ petition along with the Interlocutory application, if any.
In a significant case, the Jharkhand High Court quashed the show-cause notice issued under Section 73 of the Jharkhand Goods and Service Tax Act, without stating contraventions committed by the petitioner.
After analyzing the facts and arguments of both parties, the division bench of Justice Aparesh Kumar Singh (Acting Chief Justice) and Justice Deepak Roshan observed that the show-cause notice in the instant case does not fulfill the ingredients of a proper show-cause notice and thus amounts to a violation of principles of natural justice; the challenge is maintainable in the exercise of writ jurisdiction of this Court. Therefore, the bench quashed the show-cause notice issued under Section 73 of the Jharkhand Goods and Service Tax Act without stating contraventions committed by the petitioner.
In a significant case, the Madras High Court, while granting relief to Lenovo India, directed the Assistant Commissioner of GST and Central Excise to issue a refund of Integrated Goods and Service Tax (IGST) within 30 days.
After analyzing the facts and arguments of both parties, the single bench of Justice Krishnan Ramasamy observed that the first and second respondents have committed a serious flaw in the decision-making process. Therefore, the impugned orders have to be held to be unsustainable. Thus, the bench directed the second respondent, Assistant Commissioner of GST and Central Excise, to issue a refund of Integrated Goods and Service Tax (IGST) within 30 days. Therefore, the bench allowed the writ petition filed by the petitioner.
The Delhi High Court held that the issuance of summons to join the investigation and give evidence and documents to the agency cannot be presumed to culminate in the arrest of a person being so summoned.
The Bench comprising of Justice Swarana Kanta Sharma held that “merely because once again a summon has been issued under Section 50 of PMLA, no case for grant of no-coercive steps can be made out. It is also clear as per the scheme of PMLA that the power to issue summons under Section 50 of PMLA is different from the power to arrest under Section 19 of PMLA, and the issuance of summons to join the investigation and gives some evidence or document to the investigation agency cannot be presumed to culminate into the arrest of the person being so summoned”. Therefore, considering the law laid down by the Apex Court and the facts of the present case, no case was made out for directing the respondent to not take any coercive steps against the petitioner. Thus, the court was not inclined to quash the impugned summons or the ECIR against the petitioner or to grant any relief of no-coercive steps as prayed by the petitioner.
The Delhi High Court held that the assessment order cannot be framed without issuing a notice under Section 143(2) of the Income Tax Act, 1961.
The Division bench comprising of Justice Rajiv Shakdher and Justice Girish Kathpalia held that before framing an assessment order, the Assessing Officer ought to have issued a notice under Section 143(2) of the Income Tax Act. The submission advanced on behalf of the appellant/revenue that, while it could consider the invalid return while framing the assessment order, it was not obliged to issue a notice under Section 143(2) of the Income Tax Act because it was not filed within the timeframe given in Section 148 of the Income Tax Act notice was untenable in law, since the ROI, which was belated, was considered by the Assessing Officer while carrying out the assessment.
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