This Annual Case Digest analytically summarizes the key stories related to Tax judgements of various High Courts in India reported in Taxsca.in during the year 2023. These stories include judgements and observations of High Courts related to Income Tax, Goods and Service Tax(GST), Excise Duty, Service Tax, Customs Duty, etc.
The Madras High Court has ordered a Special Audit for the Institute of Chartered Accountants of India (ICAI) in three months after considering the allegations raised by a Chartered Accountant. In view of the facts and circumstances, the petitioner is at liberty to submit his detailed objections or otherwise, to the Central Council of Institute of Chartered Accountants of India, within a period of four weeks from the date of receipt of a copy of this order.
In the event of submitting any such objection by the petitioner or by any other member of the Institute, the Central Council of the Institute of Chartered Accountants of India shall consider the objections and if there is any irregularity, doubt, falsehood or otherwise, then conduct Special Audit into the allegations or otherwise raised and thereafter communicate the result to the petitioner, within a period of three months from the date of submission of the objections by the petitioner.
In a petition filed by a Chartered Accountant, the Madras High Court has allowed to initiate corruption cases against the then Presidents of the Institute of Chartered Accountants of India (ICAI) in several serious allegations against the then President and the manner in which the decisions are taken by the Institute at the instance of the President of the Institute.
Justice S.M. Subramaniam observed that “As far as the interim orders are concerned, this Court is of an opinion that even in the case, prima facie, the case has been established by the petitioner, the law must be set in motion for the purpose of conducting a proper investigation in the manner known to law. The High Court cannot conduct an elaborate enquiry into the allegations, which all are more technical and more so, it requires adjudication of documents and evidence. The petitioner raises several omissions and commissions committed by the Chartered Accountant Institute, more specifically by the then President of the Institute.
The Bombay High Court, on Tuesday, upheld the levy of IGST on liability on service provided by intermediaries to persons located abroad under section 13(8)(b) of the Integrated Goods and Services Tax Act, 2017.
The Bombay High Court, on Tuesday, upheld the levy of IGST on liability on service provided by intermediaries to persons located abroad under section 13(8)(b) of the Integrated Goods and Services Tax Act, 2017.
A two-judge bench of the Delhi High Court has held that the central excise department can continue the proceedings for adjudication of the impugned show cause notice, after the lapse of almost thirteen years.
Justice Vibhu Bakhru and Justice Amit Mahajan were hearing a petition filed by Mr. Nanu Ram Goyal claiming that such proceedings are barred by limitation as the central excise department had failed to conclude the proceedings within a reasonable period from the date of issuance of the impugned show cause notice.
The Madras High Court ruled that the question of whether transactions constitute works contracts or sales cannot be undertaken in writ jurisdiction and thereby relegated the matter to the Appellate Authority.
The Bench further went on to state that “Reliance on the aforesaid judgement is misconceived for the reason that, in that judgement, the proposition laid down was that a Circular issued by a superior authority would bind an assessing officer and, in such circumstances, there is no point in remanding the matter to the file of the assessing authority to be redone.”
In a case of wrongful availment of ITC, the Gujarat High Court ordered to continue provisional attachment till the conclusion of the adjudication proceedings.
A two-judge bench comprising Justice N V Anjaria and Justice Devan M Desai directed the authorities to complete the adjudication proceedings within six weeks. Further directed the competent GST authorities to proceed to adjudicate the show cause notice after giving reasonable opportunity to the petitioner including filing a reply to defend its case, within a time-bound period.
The Allahabad High Court allowed the assessee to release detained goods without e-waybills after paying 200% of Goods and Services Tax on invoice value.
A Single judge bench comprising of Justice Pankaj Bhatia observed that the petitioner has to be treated as the owner of the goods in view of the law laid down in the case of M/s Margo Brush India and held that the impugned insofar as it imposes the burden on the petitioner to get the goods released in terms of Section 129(1)(b) of the GST Act is bad in law.
The Jharkhand High Court quashed the prosecution for illegal TDS deduction against the finance advisor who is neither an employee of HEC Ltd. It was observed that the petitioner neither falls within the definition of “Assessee”, “Principal Officer” nor an “Employee”. He was also not part and parcel of the management of HEC.
The Single judge bench Comprising Justice Gautam Kumar Choudhary quashed and set aside the impugned complaint since there is no material to summon the petitioner.
The Bombay High Court rejected the writ by the sales tax officer turned resident district collector for correction of dob after 22 years in service.
A division bench comprising Justice S. V. Gangapurwala & Justice Sandeep V Marne observed that as per Rule 38(1) of the Maharashtra Civil Service (General Conditions) Rules 1981, an application ought to have been made within 5 (five) years of entering the service. In the seniority list maintained by the employer, the date of birth of the petitioner is recorded as 1st June 1971 and the petitioner has not objected at any material point of time before the filing of the writ petition.
The Bombay High Court rejected the writ by the sales tax officer turned resident district collector for correction of dob after 22 years in service.
A division bench comprising Justice S. V. Gangapurwala & Justice Sandeep V Marne observed that as per Rule 38(1) of the Maharashtra Civil Service (General Conditions) Rules 1981, an application ought to have been made within 5 (five) years of entering the service. In the seniority list maintained by the employer, the date of birth of the petitioner is recorded as 1st June 1971 and the petitioner has not objected at any material point of time before the filing of the writ petition. The Court refused to correct the date of birth and dismissed the petition.
The Madras High Court set aside the assessment order passed under the Goods and Services Tax Act, 2017 which was violative of the natural justice principle.
A Single judge coram Comprising of Dr Justice Anita Sumanth observed that the orders of assessment suffer from violation of principles of natural justice. The exchange of correspondence between the parties establishes that the petitioner was cooperating with the proceedings for assessment.
In a major relief to Tata Communications Payment Solutions Ltd, the petitioners, the Bombay High Court ordered the release of the ATM machines seized during property tax recovery.
The Bench also made note of the inaction from the side of the Municipal Corporation and stated that the concerned officers of the Municipal Corporation before taking such action in respect of movable property of a third party did not examine the leave and licence agreement.
The Municipal Corporation did not have any authority to keep detained the equipment of the Petitioner who was merely a licensee of the premises and also under the leave and licence agreement, the liability to pay Municipal taxes and all other Government outgoings was that of the owner.
“This court is mystified as to how an Order could be incorporated without the officer having read the same in the first place” the Madras High Court Bench of Dr Justice Anita Sumanth commented while directing the Coimbatore Municipal Corporation to pay Rs. 10 Lakhs to Cancer Institute for Non-Compliance of Order for De-sealing and Restoration of Services in the matter of property tax demand.
The Court held that “The respondent is hence put to terms and will remit a sum of Rs.10,000/- (Rupees Ten Thousand Only) to the Cancer Institute, Adayar, Chennai, within a week from today. The premises shall be de-sealed and water and sewerage connection restored within 24 hours from today.”
In a recent decision the Orissa High Court observed that the transportation charges separately shown are deductible from Goods transport operator(GTO) under Odisha Sales Tax Act.
The Coram comprising Justices BR Sarangi and MS Raman observed that “This Court, on perusal of record, finds that the factual position obtained in D.K. Construction is identical to the present case and similar questions of law as posed in the present revision petition are decided in favour of the petitioner-assessee and against the revenue and that the revision petition succeeds and, therefore, all the orders were set aside.”
The Patna High Court has held that the GST dep cannot deprive the benefit of the assessee due to non-constitution of the tribunal and directed to file an appeal under section 112 of the Bihar Goods and Services Tax Act (B.G.S.T. Act), 2017.
The Court held that the petitioner cannot be deprived of the benefit, due to the non- constitution of the Tribunal by the respondents themselves. Since the order is being passed due to non-constitution of the Tribunal by the respondent authorities, the petitioner would be required to present/file his appeal under Section 112 of the B.G.S.T. Act, once the Tribunal is constituted and made functional and the President or the State President may enter the office.
The Bombay High Court quashed the rejection of GST refund filed beyond limitation amidst Covid situation, thereby granting relief to 44 EMB Studio Private Limited, the petitioner.
The Coram consisting of Justices Sharmila U Deshmukh and Nitin Jamdar observed that “The arguments of the Petitioner, as reflected in the impugned order, are based on the general situation brought about by the Covid-19 pandemic. The implications of the orders passed by the Supreme Court are not considered while calculating the limitation period.”
The Bombay High Court allowed the withdrawal of appeal on disputed income tax claim being valued at “Nil”, thereby granting relief to Abu-Dhabi Commercial Bank Ltd. The Bench further noted that “In view of this, the Counsel seeks to withdraw the appeal.
The appeal stands dismissed as withdrawn with liberty to approach the Court again for reviving the present appeal in case the Revenue for any plausible reasons finds that the appeal was not to be withdrawn as the disputed claim in the appeal is not covered under the aforementioned circular.”
In a recent judgement, the Bombay High Court refused to grant the right to travel abroad since the application for cancellation of bail by the GST department is pending before the Session Court. It was found that apart from the issue of entitlement to travel abroad, the other contentious issue is about possession of the passport. The Applicant claims that at the time of his arrest, the department has taken into possession of his passport.
A Single judge bench comprising Justice Modak S M refused to accept the request only for one reason that the application filed by the department for cancellation of the bail is pending before the Court of Sessions. The Applicant is at liberty to move again if an application for cancellation of bail is rejected. It is made clear that when this Court has rejected the application to travel abroad, it is expected that a hearing of that application needs to be taken on a priority basis.
The Bombay High Court in its recent judgement has held that the order of attachment with one year period to deposit the amount of the cheque will not prevent the assessee from honoring the cheque. It was found that the account of the accused was attached due to non-payment of liability of tax of petitioners. If that is so, the petitioners cannot get the advantage of their wrongs.
It is the petitioners on their failure to pay income-tax dues have invited such an order of attachment and now they cannot turn around and say that the circumstances of dishonour of cheque were beyond their control.
A Single judge bench comprising Justice Amit Borkar observed that the petitioner had a period of one year to deposit the amount of the cheque after the order of attachment. The Court dismissed the Writ petition.
The Delhi High Court has held that notice issued under Section 153C of the Income Tax Act, 1961 without granting the opportunity to the assessee for objection is not valid.
A two-judge bench comprising Justice Rajiv Shakdher and Justice Tara Vitasta Ganju disposed of the writ petitions by directing the concerned officer to grant a hearing to the petitioner and/or to his authorised representative and shall issue a notice, on this behalf, which will set forth the date and time of the hearing.
Further, the court directed the petitioner to file his objections within two weeks and the concerned officer will, thereafter, fix a date and time according to the hearing vis-à-vis the said satisfaction note.
The Delhi High Court set aside the assessment order under section 148 of the Income Tax Act, 1961 since the revenue failed to provide material information based on which allegation was levelled against the assessee.
The Two judge bench comprising Justice Rajiv Shakdher and Justice Tara Vitasta Ganju set aside the impugned order dated 29.07.2022 and the notice issued under section 148 of the Income Tax Act.
The court further held that “before the AO proceeds further in the matter, he will furnish the entire material/information which is in his possession and that which finds mention in the CRID. In such an eventuality, i.e., if material/information is furnished, the AO will provide an opportunity for the petitioner to file a supplementary reply ”
In a significant case, the Allahabad High Court held that section 75(4) of Uttar Pradesh Goods and Service Tax Act is mandatory even if no demand in writing for hearing is made out. Therefore, the bench quashed the order passed without giving opportunity for hearing to the petitioner.
The standing council for the state contended that the order dated 01.10.2020 also did not reveal that any personal hearing was accorded to the petitioner prior to passing of the order, as such, the inescapable conclusion from the material available on record is that petitioner was not granted personal hearing which is required and is mandatory under Section 75(4), as such, on that ground alone the order dated 01.10.2020 is quashed. The respondents should be at liberty to conclude the proceedings in accordance with law afresh, if so advised. Thus, the single bench of Justice Pankaj Bhatia, allowed the appeal filed by the petitioner.
In a recent ruling, the bench of Justice Rohit Ranjan Agarwal of Allahabad High Court granted relief to the Chief Income tax Officer committing contempt of court. The bench stated that if the officer failed to comply with the judgement again, it is open to the applicant to approach the court again.
The Rajasthan High Court in its recent judgement has held that the assessee can claim Input Tax Credit (ITC) when the department considers the issue of revocation of Cancelled GST registration.
The two-judge bench of Justice Vijay Bishnoi and Justice Praveer Bhatnagar has held that “when the competent authority considers the issue of revocation of cancellation of petitioner firm GST registration under the notification dated 31.03.2023, the petitioner-firm, shall be entitled to lodge its claim for availment of ITC in respect of the period from the cancellation of the registration till the registration is restored.”
In a significant case, the Punjab and Haryana High Court has held that deposits of tax during searches cannot be retained by the department until the adjudication of the notice.
The two-judge bench of Justice Ritu Bahri and Justice Kuldeep Tiwari has directed the department to return the amount of Rs.2.54 crores to the petitioner(s) along with simple interest at the rate of 6% per annum from the date of deposit till the payment is made.
In a recent decision the Madras High Court observed that the liability to interest will arise only in a situation where there has been actual utilisation of the Input Tax Credit (ITC) by the assessee. The Bench of Dr Justice Anita Sumanth observed that “The petitioner cannot be faulted for the same, since transition has been sought in line with the procedures set out under the Act and Rules.
The flaw was in the maintenance of the ECL by revenue”. The Bench further noted that “In view of the retrospective amendment of 2022, it is only when ITC has been wrongly availed and utilized with a revenue impact, that interest liability is attracted. In the present case, the original error of non-maintenance of ECL is admittedly related to the department. Moreover, the petitioner has not utilized the credit.”
The Orissa High Court, has recently, in a writ petition filed before it, with regard to Goods and Services Tax (GST) Input Tax Credit (ITC) refund claim on inputs of electric vehicle manufacturing, directed the refund of balance claim amount.
The Division Bench of Justice Dr B.R Sarangi and Justice M.S Raman held: “In view of facts and law, as discussed above, this Court directs the opposite parties to refund the balance amount, excluding Rs.5,18,230/- from out of total amount of Rs.2,22,97,228/-, to the petitioner pending final adjudication of the disputed amount in accordance with law.”
The Allahabad High Court has recently dismissed a writ petition filed before it, on account of failure on part of the petitioner to submit reply within allotted time. The Bench declined to exercise the extraordinary discretionary jurisdiction under Article 226 of the Constitution of India.
The Delhi Bench of High Court has set aside the order passed under Section 148A(d) of the Income Tax Act 1961 as this was passed without considering the reply of the assessee. The assessing officer was directed for de novo exercise in lieu of the above order.
The Division Bench of Justice Rajiv Shakdher and Justice Tara Vitasta Ganju set aside the order passed under Section 148A(d), and the consequential notice observing that, “What the AO is required to prima facie establish, is that the stand of the petitioner, which is that it had obtained supply of the readymade garments from the aforementioned entities was false. It appears that the AO has not done his due diligence on that behalf.” The Bench also held that the AO would have liberty to carry out a de novo exercise.
In a recent ruling, the Single bench of Justice Manoj Kumar Tiwari directed the petitioner to pay the outstanding dues of the Goods and Services Tax (GST). The petitioner, aggrieved by the cancellation of his GST registration by the GST State department filed the writ petition seeking reliefs.
The petitioner sought to issue suitable writ, order or direction in the nature of certiorari calling the record of the case and quash the cancellation of GST Registration order as the petitioner is ready to pay all the dues. The bench observed that the cause of the cancellation of the GST registration was not clearly mentioned in the cancellation order. Thus the state counsel was asked to submit the instructions on the same.
The Calcutta High Court presided by a single bench Justice Md. Nizamuddin quashed and set aside on the ground that the impugned notice was issued in the name of non-existing company in spite of revenue having notice and knowledge of non-existence of such Company.
The High court stated that once the scheme for amalgamation has been sanctioned by the Court, from that date amalgamating Company would not be in existence. Thus under the circumstances, the impugned notices, which are issued against the non-existent Company, cannot be sustained and the same deserves to be quashed and set aside.
The bench of Chief Justice Vipin Sanghi and Justice Alok Kumar Verma of Uttarakhand High Court dismissed the revision petition filed by the Commissioner State/Commercial Tax seeking condonation of delay of 3502 days.
A court or tribunal’s decision or order can be challenged through the process of a revision petition. The request to review and alter the original decision is usually put before the same court or panel that issued it. A petitioner must establish grounds for revision, such as an error of law or fact, a disregard for pertinent evidence, or a breach of natural justice, in order to file a revision petition. Depending on the jurisdiction and nature of the issue, the petition must also be filed within a particular window of time.
In a recent ruling, the bench of Justice Manmeet Pritam Singh Arora and Justice Manmohan of Delhi High Court ruled that the impugned Notifications in withdrawing the exemption from the Electronic Commerce Operators (ECOs) and making the levy of Goods and Services Tax (GST), on the fare of non air-conditioned stage carriage ticket booked through the electronic platform of Petitioners is identical and not discriminatory.
The ECOs are a separate class, in the opinion and judgement of the High Court, and the Respondents have every right to deny the stated class exemption. There is no vested right in the ECOs to claim the continuation of exemption.
The Delhi High Court ordered the cancellation of the GST registration prospectively only since the department failed to mention the retrospective effect of cancellation of GST registration in the Show Cause Notice (SCN).
It was observed that it was evident that the show cause notice 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.
A two-judge bench comprising Justice Vibhu Bakhru and Justice Amit Mahajan 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.
The Orissa High Court stayed the tax demand till the pendency of the writ subject to the deposit of tax amount in absence of the GST tribunal.
A Coram Comprising Dr Justice B R Sarangi and Justice M S Raman held that “since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd appellate tribunal, which has not yet been constituted, as an interim measure subject to the Petitioner depositing entire tax demand within a period of four weeks, the rest of the demand shall remain stayed during the pendency of the writ petition.”
In a recent judgement, the High Court of Orissa held that a service tax notice issued after 10 years is not valid and quashed the same.
After considering the observation made in the case of Commissioner of Central Excise, Mangalore vs. M/s. Konkan Marine Agencies, the Coram comprising Chief Justice Dr S. Muralidhar and Justice M S Raman quashed the impugned notice dated 23rd April 2007 and further letter dated 30th October 2017 issued by the Department to the Petitioner. Further allowed the petition.
The Delhi High Court has held that the GST department cannot reject a refund without any corroborative evidence and is directed to pay the refund claim along with interest.
A Coram comprising Justice Vibhu Bakhru and Justice Amit Mahajan observed that since the petitioner succeeded in its appeal, the petitioner is entitled to the refund as claimed and directed the respondents to forthwith process the petitioner’s claim for a refund including interest.
The Madras High Court condoned the delay in filing the appeal as the petitioner’s GST Registration Certificate was cancelled due to the mistake committed by the accountant.
The Single Bench further went on to state that the petitioner may be permitted to approach the appellate authority before whom all conditions for entertaining the appeal such as pre-deposit would be applicable. If appeal is filed within a period of one week from today, it shall be entertained without reference to limitation but ensuring compliance with all other requirements including pre-deposit.
In a recent judgement the Andhra Pradesh High Court observed that the Court can’t pass an injunction order or attachment to secure debt when matter is pending in other writ petitions. The petitioners in the present matter is Pathakhadarabad Handloom.
The Single Bench further observed that the cause of action for seeking an injunction for securing certain monies lying in the credit of the Respondent No.2, that too to the detriment of Respondent No.6, in the nature of an attachment, cannot be countenanced for the simple reason that without there being a determination of a pending debt, an attachment of this nature cannot be countenanced, especially against the State agency.
The Division Bench of High Court of Delhi has dismissed the condonation of delay because of unexplained and inordinate delay without ostensible reasons. “Even if the period commencing from 15.03.2020 was excluded on account of disruption caused due to outbreak of covid 19. There was a period of six months between the date on which the appeal was marked as defective and the date when the lockdown was imposed in the wake of the pandemic,” the Bench further observed.
The Karnataka High Court has granted a temporary stay to the Corporate Insolvency Resolution Process (CIRP) initiated against Mantri Developers Pvt. Ltd.
The controversy surrounding the loan default and subsequent CIRP has sparked concerns about the state of the real estate industry in India, which has been hit hard by the COVID-19 pandemic. Many companies in the sector are struggling to complete projects on time and generate revenue, leading to a rise in loan defaults and insolvency proceedings.
In a recent ruling, the Delhi High Court bench of Justice Vibhu Bakhru and Justice Amit Mahajan directed the Directorate General of Goods and Services Tax Intelligence (DGGI) not to force GAIL to pay any amount which is not due.
The bench observed that the contested order directing GAIL to pay a sum of ₹13,13,07,485 is not sustainable. Thus, set aside the impugned order issued by the DGGI. Additionally, the bench clarified that the DGGI is not precluded from taking such steps as may be available in law for securing the interests of the Revenue.
The Orissa High Court ordered to stay the demand during the pendency of writ petition in the absence of GST appellate Tribunal to pay tax and penalty. The petitioner in the present matter is M/s. Pratap Kumar Pradhan.
The Court of Justices BR Sarangi and MS Raman held that “Since the petitioner wants to avail the remedy under the provisions of law by approaching second appellate tribunal, which has not yet been constituted, as an interim measure subject to the Petitioner depositing entire tax demand within a period of four weeks from today, the rest of the demand shall remain stayed during the pendency of the writ petition.”
The Orissa High Court upheld the allotment of work via e-tender and ruled that the demise of one partner did not take away the right of the proprietor to continue the agency.
The Court of Justice Shampa Sarkar observed that “The business is in the nature of a proprietorship and the legal name is Rakhi Paul. The trade registration issued by the panchayat authorities indicates the same. The trade licence granted under Section 12(1) of the Contract Labour (Regulation and Abolition) Act, 1970 also indicates that the Buddhadeb Paul is the trade name and Rakhi Paul is the proprietor.”
In a major setback to Hitachi Payment Services Pvt Ltd, the Bombay High Court allowed the non-local entities to participate in tender below 200 Crores, not violative of the “Make In India” Policy. The Bench concluded by noting that the entire gamut of the Petitioners’ case is based upon non-adherence to the “Make In India” policy.
However, once it is held that Respondent no.1 had assessed the estimated cost of tender while floating it at Rs.208 crores, Respondent no.1 is entitled to float global tender and the violation of the “Make In India” Policy would not subsist an issue.
The Orissa High Court ordered to furnish bank guarantee on non-appearance of the driver of the seized vehicle with regard to fraudulent business activities and claiming fake Input Tax Credit (ITC). The Petitioner in the present matter is Manish Kumar Jaiswal. The Bench of Justices BR Sarangi and MS Raman observed that “In view of the instruction received, it appears that the petitioner has not approached the authority, even though the authorities have expressed their view that the conveyance can be released on payment of penalty as per the demand order or after furnishing the bank guarantee of equal amount.”
Upholding the Order of the Customs, Excise and Service Tax Appellate Tribunal (‘CESTAT’) ruled that the period of five years under Section 28 of the Customs Act, 1962 is a prescribed period of limitation.
The Coram comprising Justices Vibhu Bakhru and Amit Mahajan held that “It is relevant to note that the period of limitation as provided under Section 28 of the Customs Act is a period of five years from the relevant date. It is, thus, apparent that the CESTAT had proceeded on the basis that a reasonable period for taking an action under Section 28B of the Customs Act would also be a period of five years.”
The Delhi High Court has recently held that Customs authorities cannot take action on the sole basis of undertaking submitted by importer and the finding of Directorate General of Civil Aviation that the permit conditions were violated.
The Division Bench of Justice Vibhu Bakhru and Justice Amit Mahajan thus held that, “The impugned order, to the extent that it holds that Customs Authorities can take action on the basis of the undertaking submitted by the importer only when the DGCA holds that the conditions of the permit issued by them have been violated, is set aside.”
The Orissa High Court has recently quashed the Goods and Services Tax (GST) assessment order passed against the assessee, as the same was issued without giving an opportunity of hearing to the assessee and violating the principles of natural justice.
In view of the above, the Orissa High Court Division Bench of Justices Dr B R Sarangi and M S Raman quashed the impugned Goods and Services Tax assessment order passed against the assessee. Consequently, the matter was remitted back to the Assessing Officer to assess it afresh by giving opportunity of hearing to the petitioner taking into consideration the objection, if any, filed by the petitioner in the matter, and pass a reasoned and speaking order in accordance with law.
The Rajasthan High Court rejected the anticipatory bail application on alleged Fabrication of GST number and name of Firm and fraud of Rupees three crores. Rejecting the application.
For anticipatory bail the Coram comprising Justice Praveer Bhatnagar observed that “It is pertinent to note that an investigation against the accused persons is still pending and, therefore, custodial investigation may further lead to recovery and disclosure of facts for the allegedly misappropriated goods.”
In a recent decision the Orissa High Court approves the pre-deposit of admitted tax amount debited through Electronic Credit Ledger (ECL). The petitioner in the present matter is Ranjan Naik.
The Bench of Justices BR Sarangi and MS Raman noted that “The impugned order is set aside. As the learned counsel for the Petitioner points out that the Petitioner has already made the pre-deposit using the ECL, that will now be accepted by the Department. The appeal be disposed of afresh after hearing the Petitioner and the Department within a period of three months thereafter.”
The Orissa High Court directed the Assessing Officer to re-compute tax liability and ruled that the supply of ballast and chips as “minerals” falls under Entry 117 of the taxable list subject to tax at 4%.
The Court observed that “This Court, on perusal of record, finds that the factual position obtained in D.K. Construction is identical to the present case and similar questions of law as posed in the present revision petition are decided in favour of the petitioner-assessee and against the revenue.” The Court directed the Assessing Authority is directed to re-compute the tax liability as per observation made above and taking into consideration the judgement of the Court in the case of State of Orissa v. D.K. Construction.
The Madras High Court held that a Reassessment made after 4 years for a mere change of opinion is not valid.
A two-judge bench comprising Justice R Mahadevan and Justice Mohammed Shaffiq observed that the reassessment proceedings initiated by the assessing officer beyond four years from the end of the relevant assessment year in question namely 2010-2011 is legally impermissible.
In a recent ruling, the Himachal Pradesh High Court (HC), bench of Justice Ajay Mohan Goel, dismissed the appeal for not making the demand of the amount covered by the bounced cheque.
The bench observed the supreme court decision in K.R. Indira Versus Dr. G. Adinarayana, (2003), that though no formal notice is prescribed in Section 138 of the Negotiable Instruments, the statutory provisions indicate in unmistakable terms as to what should be clearly indicated in the notice and what manner of demand it should make. The bench found no error in the findings of the trial court that the notice was no notice as per the Negotiable Instruments Act.
A Single Bench of the Delhi High Court has recently held that there shall be no impediment on the manufacture and sale of products with Linagliptin as the API on account of the suit patent IN ‘301 and permitted the defendants to manufacture and sell the Diabetes drug subject to necessary approvals.
It was also noted by the Single Bench of Justice Amit Bansal that, “the plaintiffs thus had failed to make out a prima facie case for grant of interim injunction. Balance of convenience is in favour of the defendants and against the plaintiffs. Irreparable injury would be caused not only to the defendants but also to the public, if the interim injunction is granted in favour of the plaintiffs.”
Delhi High Court in its recent judgement held that information about the goods must be produced within a reasonable time by the person in whose custody the goods were found.
A Coram comprising Justice Vibhu Bakhru and Justice Amit Mahajan observed that “it would be open for a person found in the custody of goods to produce the relevant information in its possession in respect of the goods within a reasonable time on being required to do so by the Commissioner.” The Court set aside the impugned order and the appellant’s appeal was restored to the Appellate Tribunal. The Appellate Tribunal shall consider the documents as produced by the appellant and take an informed decision on the appellant’s appeal.
In a recent case, the Orissa High Court stayed the tax demand till the pendency of the writ subject to the deposit of tax amount due to non-constitution of the GST Appellate Tribunal.
A Coram Comprising of Justice B R Sarangi and Mr Justice M S Raman observed that “since the petitioner wants to avail the remedy under the provisions of law by approaching the 2nd appellate tribunal, which has not yet been constituted, as an interim measure subject to the Petitioner depositing entire tax demand within a period of four weeks and the rest of the demand shall remain stayed during the pendency of the writ petition.”
The Orissa High Court directed the Central Board of Direct Taxes (CBDT) to issue a circular since the assessee failed to file an Income tax return due to technical glitches.
Since the Department has itself acknowledged that there have been technical glitches which have prevented many Assesses from filing their returns and tax audit reports within time, Chief Justice S Muralidhar and Justice G Satapathy held that CBDT should consider issuing an appropriate circular clarifying that by granting an extension of the deadline for filing returns/tax audit reports.
In a recent case in which the seizure of a vehicle was done on allegations of fraudulent business activities and fake claims of ITC, the Orissa High Court directed the release of the vehicle after payment of penalty under Section 129(1) (b) of the GST Act, 2017.
A Coram Comprising of Justice B R Sarangi and Mr Justice M S Raman held that if the petitioner fails to furnish the bank guarantee, it will be open to the opposite parties to confiscate the vehicle of the petitioner.
The Jharkhand High Court quashed the prosecution initiated on offence under section 276CC of the Income Tax Act, 1961 since the criminal prosecution was initiated mistakenly on the assessee who was not an account holder.
From the counter affidavit filed by the Income Tax department, they have admitted the assertion made on behalf of the petitioner that the said account does not stand in the name of the petitioner. In view of the admitted position, the Coram Comprising of Justice Gautam Kumar Choudhary held that criminal prosecution was without any factual basis. The Court quashed the order dated 14.03.2019 passed by the Special Court (Economic Offence), Ranchi.
The Calcutta High Court confirmed the relief granted on account of unascertained liability, “Provision Warranty” which is Contingent in nature, thereby granting relief to Landis Gyr, the respondent.
The High Court Bench of Acting Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharyya observed that “We are of the view that no substantial question of law arises on the said issue as the Tribunal has decided in favour of the assessee by returning ‘finding of fact’.”
The Court concluded by noting that the substantial question of law being entirely factual and the Tribunal having decided in favour of the assessee by returning a finding on fact, we are of the view that no such substantial questions of law arise for consideration.
In a recent judgement, the Kerala High Court set aside the assessment order passed without giving the reason for denying the claim of ITC on capital goods under the Kerala Value Added Tax Act (KVAT Act).
Further, the court viewed that the taxing authority assumed a jurisdiction that it did not have and the assessing authorities mechanically passed orders without showing how the taxable event is attracted in or without giving reasons for denying the claim of an assessee for exemption or deduction. While allowing the appeal, the Court set aside the impugned judgment of the Single Judge and the assessment order.
In a recent case, the High Court of Calcutta quashed the notice issued under section 148 of the Income Tax Act, 1961 towards a non-existing company.
A single judge bench comprising Justice Md. Nizamuddin viewed that the impugned notice dated June 30, 2022, and all further steps under the said impugned notice also is not tenable in the eye of the law. While allowing the petition, the Court quashed the impugned notice solely on the ground that the impugned notice was issued in the name of a non-existing company despite revenue having notice and knowledge of the non-existence of such Company.
The High Court of Calcutta held that initiation of reassessment processing beyond six years of assessment is barred by limitation and directed the respondent to file a reply to the petition.
A Single bench comprising Justice Md. Nizamuddin viewed that the matter deserves adjudication by calling for affidavits from the respondents and held that the petitioner has been able to make out a prima facie case for an interim order by raising the issue of jurisdiction of the assessing officer concerned in initiating the impugned re-assessment proceeding.
The Court directed the respondents to file an affidavit in opposition within four weeks and the petitioner to file a reply thereto, if any, within two weeks thereafter.
The Orissa High Court Bench has directed for fresh adjudication as there was a discrepancy in amount mentioned in e way bill and invoice.
The Division Bench Of Justice B.R. Sarangi and Justice M.S.Raman quashed the impugned order and directed for fresh adjudication observing that, “In the tax invoice the amount has been mentioned as Rs.1,97,047.86 whereas in the e-Way Bill it has been mentioned as Rs.197047086.00. Thereby, there is palpable error in the way bill, which may be construed to be a human error. If this fact is brought to the notice of the assessing authority, the same can be considered in accordance with law and a fresh assessment order can be passed.”
As a relief to Mahanagar Telephone Nigam Limited (MTNL), the Delhi High Court set aside the demand for service tax of Rs. 56.61 crores since the surrender of any right to use the spectrum before 14.05.2016 would not be chargeable to service tax.
Justice Vibhu Bakhru and Justice Amit Mahajan observed that MTNL had received the compensation during the financial year 2015-16, which was before14.05.2016 – the date on which the Finance Act, 2016 came into force and Clause (j) was introduced in Section 66E of the Act. The surrender of any right to use the spectrum by MTNL before the said date would not be chargeable to service tax. The Court set aside the impugned show cause notice and allowed the petition.
The Jharkhand High Court has tagged the instant matter along with W.P (T) No. 432/2021 and analogous cases as it relates to common issue i.e. levy of GST on royalty upon the petitioner who is the lessee of minor minerals in the District of Sahebganj.
The Bench further noted that “Following the interim order passed by the Apex Court in the case of M/s Lakhwinder Singh, this Court had been pleased to grant interim protection on levy of GST on mining lease / royalty/DMF. In the background of the legal position that royalty has been considered to be a tax or profit pendre and the issue is pending before the 9 Judge Constitution Bench, we are of the considered view that the petitioners have made out a case for interim protection.”
Be the First the Patna High Court stayed the recovery of the balance tax amount from the petitioner on the ground of non -constitution of GST appellate tribunal.
The Court of Chief Justice K. Vinod Chandran and Justice Madhuresh Prasad, noted that “The petitioner 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. It is not in dispute that similar relief has been granted by this Court in the case of SAJ Food Products Pvt. Ltd. vs. The State of Bihar & Others.”
The High Court of Orissa refused to frame issues on the deletion of a claim by the assessee in respect of providing for Dam maintenance by Orissa Hydro Power since it was decided against the revenue.
Mr Tushar Kanti Satapathy Senior Standing Counsel for the Revenue is unable to point out if the said orders for AY 2005-06 have been appealed against by the Revenue. Moreover, these are the concurrent views of the CIT (A) and the ITAT which turned on facts. In that view of the matter, following the rule of consistency, the Court declined to frame the questions as urged.
The Calcutta High Court directed the respondent to pass speaking order in the matter of inaction of the Income Tax Authority in disposing of series of representations.
The Bench of Justice Md Nizamuddin observed that “The writ petition is disposed of by directing the respondent authority concerned to consider and dispose of the aforesaid representation of the petitioner in accordance with law and by passing a reasoned and speaking after giving an opportunity of hearing to the petitioner or his authorized representatives within a period of four weeks from the date of communication of this order.”
The Kerala High Court directed the respondent, the Taxation Officer to consider objection filed by the petitioner, as there was a demand of motor vehicle tax pertaining to already sold vehicle.
The Bench also directed the respondent herein to consider the objection in the light of the guidelines prescribed by the government as per the Circular and take a decision thereon in accordance with law, after issuing notice to the affected parties and that the said exercise shall be completed within a period of six weeks from the date of production of a copy of the judgment.
The High Court of Kerala dismissed the writ petition for quashing ledger details on the ground of non-availment of statutory remedy under the Kerala Goods and Service Tax (KGST) Act.
The Bench of Justice TR Ravi noted that “The petitioner has not chosen to exhaust the statutory remedies available against the order passed on the ledger details and after waiting for more than one year the writ petition has been filed. The petitioner cannot be permitted to invoke the jurisdiction under Article 226 of the Constitution of India after having failed to prefer statutory remedies available.” The Bench further noted that the writ petition failed and dismissed the same, without prejudice to the petitioner preferring appropriate applications permissible by law before the appropriate forum.
The Telangana High Court dismissed a writ petition holding no cause of action within the territorial jurisdiction of the Court in the matter of extension of the license period by 10 months and to refund GST. The writ petitioner in the present matter is K Padmaja. The Court of Justice K Lakshman observed that “In the present case, there is no cause of action, much less part of the cause of action within the territorial jurisdiction of this Court. Except for the fact that the petitioner herein is residing in Hyderabad, there is no cause of action within the territorial jurisdiction of this Court. Therefore, the present writ petition is not maintainable.”
Ordering the provisional release of seized kiwi fruits the Gujarat High Court ruled that the authorities should act with greater swiftness when goods are perishable in nature. The petitioner in the present matter is M/s Sufi Impex.
The Bench also noted that as far as the conditions on which the goods may be released to the petitioner, the court leaves the said aspect to the competent authority concerned who shall prescribe the conditions on the lines of the conditions prescribed by this court in M/s. A and A Shipping Services exercising sound discretion in that regard and upon compliance of such conditions shall provisionally release the goods.
The High Court of Kerala directed the Value Added Tax (VAT) Appellate Tribunal to consider the delay condonation application on second appeal in relation to an assessment order. The petitioner in the present matter is Kings Traders.
A Bench of Justice TR Ravi observed that “In view of the limited prayer made, there will be a direction to the 2nd respondent to take up the petition for condoning the delay and pass orders. On condoning the delay, application for stay filed along with appeal shall be taken up for consideration and the stay petition shall be disposed of within two months. The coercive steps for recovery pursuant to the revenue recovery notice shall be kept in abeyance till disposal.”
The Calcutta High Court ordered the restoration of cancelled GST Registration on the ground of payment of revenue dues and agreement to pay revenue arrears.
The Court of Justice Md Nizamuddin noted that “The writ petition is disposed of by directing the respondent CGST authority concerned to restore the petitioner’s registration and open the portal for a period of 15 days from date to enable the petitioner to make the payment of revenue due if any by the respondent authority concerned within 31st March, 2023.
The Court further noted that if the petitioner fails to make the payment of revenue due after indication of the amount by the CGST authority, the respondent authority concerned shall be free to again block the portal again and cancel the registration.
The Calcutta High Court directed to file an application before Additional Chief Secretary in the matter of Execution of subsisting Government contracts awarded in pre-GST or post GST regime without updating Schedule of Rates (SOR).
The Court made it clear that on receipt of such representations the Additional Chief Secretary, Finance Department shall take a final decision within four months from the date of receipt of such representation after consulting with all other relevant departments concerned. The Court also directed that till the final decision is taken by the Additional Chief Secretary, no coercive action shall be taken against the petitioners. In case of default in making representations within the time stipulated herein this order will not have any force.
Be the First the High Court of Punjab and Haryana has held that the renewal of the vehicle permit can be granted on the issuance of a No Due certificate since the assessee had paid the vehicle tax. The respondent accepted the legal notice and instruction.
It was stated that the claim of the petitioner arising out of representation dated 10.02.2023 and legal notice dated 01.03.2023 shall be considered and decided by the Competent Authority in accordance with law within a period of one month from the date of receipt of the certified copy of the order.
The High Court of Karnataka directed to reconsider the show cause notice (SCN) since only 4 days were allowed to submit documents to prevent the cancellation of GST registration.
A Coram comprising Justice B M Shyam Prasad viewed that the petition must be preferred in part quashing the impugned order of cancellation of GST registration restoring the proceedings for reconsideration by the first respondent. The court allowed the petition in part quashing the impugned order of cancellation of GST registration dated 08.12.2022 restoring the proceedings for reconsideration by the first respondent.
In a motor accident compensation claim case, the Calcutta High Court directed Reliance General Insurance to deposit the amount along with interest.
The appellant- Reliance General Insurance Company Limited was directed by the Court to deposit the balance amount of Rs.1,23,357/- along with interest @ 6% per annum from the date of filing of the claim application till deposit by way of a cheque with the Registrar General, High Court, Calcutta within the period of four weeks.
The High Court of Punjab and Haryana in its recent judgement directed to seek Alternative Remedies when Service Tax & Penalties are imposed in absence of a consignment note related to the transport of goods by road.
The Court set aside the order and the petitioner is being allowed to produce the consignment notes before the authorities concerned. Further, the matter is remanded back to the Assessing Officer-Joint Commissioner, Central GST Commissionerate for passing a fresh order, following the law, after allowing the petitioner to furnish consignment notes.
The High Court of Punjab and Haryana set aside the order passed without allowing the assessee to produce the relevant documents for service tax exemption. A Coram comprising of Justice Ritu Bahri and Justice Amarjot Bhatti set aside the order dated 30.12.2022 since the impugned order has passed without any giving opportunity to the petitioner to produce the relevant documents which were in his custody.
While allowing the petition, the court remanded the matter back to the Assessing Officer to pass a fresh order after giving one opportunity to the petitioner to produce the consignment note(s) and then pass a speaking order keeping in view the Entry No.21 of the Exemption Notification, following the law.
In a recent ruling of the Kerala High Court, presided by Justice A K Jayasankaran Nambiar and Justice Mohammed Niyas C P directed the Goods and Services Tax (GST) Appellate Authorities to consider the appeal after the payment of the Kerala Legal Benefit Fund.
The division bench while upholding the decision of the single bench in the writ appeals to the extent it finds against the appellant on the issue of the power of the State Government to reopen an assessment subsequent to the Constitution Amendment (101st Amendment Act), decided to dispose these Writ Appeals by directing the First Appellate Authority to entertain the appeals preferred by the appellant against the orders of assessment, after collecting the amounts due towards the Kerala Legal Benefit Fund.
Also, if the appellant corrects the issue with the transfer of funds to the Kerala Legal Benefit Fund within three weeks of the judgement date, the appeals would be treated as properly filed and will be resolved on their merits.
The division bench of Delhi High Court consisting Justice Rajiv Shakdher and Justice Tara Vitasta Ganju issued the notice to the respondent side on the petition filed by the petitioner against the issue of notice under section 148A(b) of Income Tax Act, 1961 when the scrutiny assessment was going on.
The bench observed that the petitioner approached the court after some delay. Also, the assessment order has not been passed yet. According to the court, it requires further detailed deliberation however it directed the Income Tax authorities to continue with the assessment proceedings. If any order is passed which is adverse to the interest of the petitioner, the same shall not be given effect to till further directions of the court, stated the bench.
The Kerala High Court has recently granted relief to the Solidarity Movement of India by directing the Income Tax department not to take any coercive measures such as recovery of taxes until the application for condonation of filing audit reports is decided on.
This decision by the Kerala High Court is significant as it provides relief to charitable organisations who may have missed the deadline for filing their audit reports. The court’s direction to consider applications for condonation of delay in filing Form No.10B, along with the interim stay on recovery steps initiated by the Income Tax department, will provide a much-needed reprieve to such organisations.
The Calcutta High Court directed to provide opportunity of personal hearing in the matter regarding Transfer of Income Tax File from Kolkata to Lucknow.
A Bench of Justice Md Nizamuddin noted that “I find that neither the materials as asked for by the petitioner nor opportunity of personal hearing was provided to the petitioner though in this case a show cause-notice was issued to the petitioner to file objection to the impugned action of transfer of the petitioner’s file but it is the case of the petitioner that he is not able to file any effective objection in view of non-providing of any materials for taking such action of transfer against the petitioner.”
The Court further directed the respondent authority concerned to provide relevant documents to the petitioner indicating the basis for taking such order of transfer of the petitioner’s file and to provide opportunity to file further objection, if such material is supplied and also to give opportunity of personal hearing to the petitioner.
A Single Bench of the Calcutta High Court dismissed a writ petition the ground that no challenge as regards to the final re assessment order was made in the petition
The Bench observed that “This is not a case where the petitioner has approached this writ court immediately after getting notice under Section 148A(b) of the Act or after passing the order under Section 148A(d) of the Act and not only that when the writ petition was filed on 9th March, 2023, petitioner could have brought to the notice of the court the final assessment order and challenged it though it may not be maintainable in view of availability of alternative remedy by way of appeal.”
In a recent decision the Calcutta High Court quashed GST notice issued under the West Bengal Goods and Service Tax Act (WBGST) on a dead person.
The Court of Justice Md Nizamuddin observed that “Considering the facts and circumstances of the case as appears from record and submission of the parties, the aforesaid impugned order is quashed on the ground that the same has been issued in the name of a dead person.
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