This weekly round-up analytically summarises the key stories related to the Supreme Court and High Court reported at Taxscan.in during the previous week from August 20 to August 27, 2022.
A division Bench of the Allahabad High Court upheld the order under Section 148(d) as legal on the ground that the creditworthiness of lender not proved by the petitioner. The Court observed that “therefore, prima facie, the Assessing Authority had some relevant material before him to assume jurisdiction for initiating re-assessment proceedings under Section 147/148 of the Act, 1961. Thus, since the Assessing Authority has some relevant material in his hands, therefore, the impugned order under Section 148A(d) of the Act, 1961 cannot be said to be without jurisdiction or illegal.” The Court further added that “For the reasons afore-stated, the writ petition is dismissed leaving it open for the petitioner to participate in the proceedings pursuant to the impugned notice under Section 148 of the Act, 1961.”
A single judge bench of the Karnataka High Court ruled that the State instrumentalities under Article 12 of the Constitution cannot act arbitrarily or unreasonably whilst considering the claim of citizens for the grant of State largesse and held that the retrospective effect does not apply to procedural change. The Court recalled the words of Lord Denning: “The rule that an Act of Parliament is not to be given retrospective effect applies only to statutes which affect vested rights. It does not apply to statutes which only alter the form of procedure or the admissibility of evidence, or the effect which the courts give to evidence”
The High Court of Calcutta presided by Mr. Justice Md. Nizamuddin has held that subsequent publication of Notification has no power to increase the rate of Customs duty with retrospective effect. The High Court has held that“the respondents/authorities concerned are directed to refund to the petitioners the excess duty amounting to Rs. 96,60,467/- which was collected by the respondent customs authority on the basis of the aforesaid impugned Notification No. 103/2020-Customs (N.T.) dated 29th October, 2020 at a higher tariff value”.
The division bench of the Supreme Court has held that Section 12A of the Commercial Courts Act, which mandates pre- institution mediation, is mandatory and suits which are filed violating this mandate are liable to be rejected. The Coram of Mr. Justice K.M. Joseph and Mr. Justice Hrishikesh Roy observed that Section 12A cannot be described as a mere procedural law the amended in 2018, by which Section 12A was inserted, would make it clear that Parliament intended to give it a mandatory flavour. The division bench has held that “we declare that Section 12A of the Act is mandatory and hold that any suit instituted violating the mandate of Section 12A must be visited with rejection of the plaint under Order VII Rule 11. This power can be exercised even suo moto by the court as explained earlier in the judgment”.
Following the Supreme Court direction in July to re-open the window for availing transitional credit to all the taxpayers, the central government is now seeking a period of 30 days to facilitate the service. In a major relief to the taxpayers under the GST regime, the Supreme Court has directed to open the GST system enabling to claim transitional credit for two months starting from 1st September to 31st October.
The Calcutta High Court presided by Mr. Justice Muhammed Nizamuddin directed the government to file an explanation in the transfer of income tax file under section 127(2). The single bench observed that the petitioners have been able to make out a prima facie case for an interim order and stayed all further proceedings on the basis of the impugned transfer orders dated 27th April 2022. Further directed the respondent to file an affidavit in opposition within four weeks.
The Supreme Court struck down section 3(2) of the Benami Transactions (Prohibition) Act 1988 which prescribes punishment for entering into Benami transactions on the ground of being manifestly arbitrary. The bench declared that Section 3(2) of the 2016 Act is also unconstitutional as it is violative of Article 20(1) of the Constitution and held that Benami Transactions (Prohibition) Amendment Act 2016 cannot be applied retrospectively as it cannot be held as merely procedural.
The division bench of the Delhi High Court has admitted the petition by the Sales Tax Bar Association against GST system glitches and asks response from the government, Infosys, and Tech Mahindra. The Coram of Mr. Justice Rajiv Shakdher and Ms. Justice Tara Vitasta Ganju has held that the technical teams of both Infosys and Tech Mahindra, to also, participate in the meetings and the status reports have been filed by both Infosys, as well as Tech Mahindra.
The Madras High Court presided by Dr. Justice Anita Sumanth has held that the last date for filing of TRAN-1 and revision of error cannot be the same and directs respondents to enable filing of revised TRAN 1. The High Court has held that “the timelines under Rule 120A must be of a period over and above the timelines stipulated in Rule 117, mandamus, as sought for by the petitioner, is issued. Since the credits filed by the petitioner relating to Central Excise and Service both coming under Central jurisdiction, R1 may enable opening of the portal such that revision may be sought”.
A division bench of the Punjab and Haryana High Court has quashed two show-cause notices issued by the central excise department by holding that there is an inordinate delay of 13 years in adjudicating the notices. Justice Tejinder Singh Dhindsa and Justice Pankaj Jain observed that the impugned show cause notices were issued in the year 2008 and has not been adjudicated upon and the only explanation coming forth in the written statement is that the matter had been transferred to the Call Book as per CVIC guidelines issued from time to time.
The single judge bench of Calcutta High Court quashed the enhanced duty rate charged on the import of crude oil, as it was imported before the effect of notification on the enhancement of duty rate. The Court directed the respondents/authorities concerned to refund to the petitioners the excess duty amounting to Rs. 96,60,467/- which was collected at a higher tariff value, within 8 weeks from the date of communication of this order.
A division bench of the Patna High Court has quashed an ex-parte order issued by the GST department by holding that the same was issued without assigning reasons or providing sufficient time to defend to the assessee. Directing the petitioner to make payment for pre-deposit, the Court further directed “for de-freezing/de-attaching of the bank account(s) of the writ-petitioner, if attached in reference to the proceedings, subject matter of present petition. This shall be done immediately.”
In a significant ruling the Madras High Court has held that there is no justification for bank attachments on remittance of pre deposit. The petitioner, M/s V R S Traders filed a writ petition under Article 226 of the Constitution of India. The writ of mandamus was invoked by the petitioner. The writ petition was filed seeking direction from the Court to the first respondent, The Commissioner of State Taxes to release the attachment of the bank account of VRS Traders and its proprietor with Tamil Nadu Mercantile Bank, Poonamallee Branch. Justice Anita Sumanth observed that “The petitioner confirms today that appeal has been filed and that the respondents had duly enabled the remittance of pre-deposit as per the provisions of Section 107 of the Tamil Nadu Goods and Service Tax Act, 2017. Upon remittance of pre-deposit of 10%, the balance shall remain stayed and hence there is no further justification for continuation of the bank attachments. ”The Court added that the bank attachments shall stand lifted.
Support our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates
