Team Computers Private Limited Vs Union of India and Ors. [SC Order]

Stay on demand order: Non-constitution of GST Appellate Tribunal

Hon’ble Supreme Court of India granted stay on order passed by first appellate authority, resulting in petitioner to pay back the already sanctioned refund, after observing that the Goods and Services Tax Appellate Tribunal (“GSTAT”) is not yet made functional.

Read in detail about this case at https://www.taxmanagementindia.com/visitor/detail_article.asp?ArticleID=13434

Download copy of SC Order

National Board of Examination in Medical Sciences Vs Union of India and Ors., HC – Delhi

Central or State Boards are educational institutions since 01.07.2017

In a case argued by us, Hon’ble Delhi High Court has held that:

• 𝐂𝐞𝐧𝐭𝐫𝐚𝐥 𝐨𝐫 𝐒𝐭𝐚𝐭𝐞 𝐁𝐨𝐚𝐫𝐝𝐬 𝐚𝐫𝐞 𝐞𝐝𝐮𝐜𝐚𝐭𝐢𝐨𝐧𝐚𝐥 𝐢𝐧𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐨𝐧𝐬 in terms of definition given at para 2(y) of the exemption Not. No. 12/2017-CT (Rate) dated 28.06.2017 i.e., 𝐬𝐢𝐧𝐜𝐞 𝐢𝐧𝐜𝐞𝐩𝐭𝐢𝐨𝐧 𝐨𝐟 𝐆𝐒𝐓 𝐥𝐚𝐰 𝐟𝐫𝐨𝐦 𝟎𝟏.𝟎𝟕.𝟐𝟎𝟏𝟕.
• 𝐄𝐱𝐩𝐥𝐚𝐧𝐚𝐭𝐢𝐨𝐧 𝟑(𝐢𝐯) 𝐢𝐧𝐬𝐞𝐫𝐭𝐞𝐝 in said exemption notification 𝐨𝐧 𝟐𝟔.𝟎𝟕.𝟐𝟎𝟏𝟖 𝐬𝐡𝐚𝐥𝐥 𝐨𝐩𝐞𝐫𝐚𝐭𝐞 𝐫𝐞𝐭𝐫𝐨𝐬𝐩𝐞𝐜𝐭𝐢𝐯𝐞𝐥𝐲 𝐟𝐫𝐨𝐦 𝟎𝟏.𝟎𝟕.𝟐𝟎𝟏𝟕.
• 𝐒𝐞𝐫𝐯𝐢𝐜𝐞𝐬 provided by these Boards as a part of curriculum to its students shall be 𝐞𝐱𝐞𝐦𝐩𝐭 𝐮𝐧𝐝𝐞𝐫 𝐒.𝐍𝐨. 𝟔𝟔(𝐚) 𝐟𝐫𝐨𝐦 𝟎𝟏.𝟎𝟕.𝟐𝟎𝟏𝟕.
• Even though services of 𝐞𝐧𝐭𝐫𝐚𝐧𝐜𝐞 𝐞𝐱𝐚𝐦𝐢𝐧𝐚𝐭𝐢𝐨𝐧 are exempted from 25.01.2018 under S.No. 66(aa), if the same are provided 𝐟𝐨𝐫 𝐜𝐨𝐮𝐫𝐬𝐞𝐬 𝐫𝐮𝐧 𝐛𝐲 𝐭𝐡𝐞𝐬𝐞 𝐁𝐨𝐚𝐫𝐝𝐬 𝐚𝐬 𝐚 𝐩𝐚𝐫𝐭 𝐨𝐟 𝐜𝐮𝐫𝐫𝐢𝐜𝐮𝐥𝐮𝐦, then benefit of 𝐞𝐱𝐞𝐦𝐩𝐭𝐢𝐨𝐧 𝐢𝐬 𝐚𝐯𝐚𝐢𝐥𝐚𝐛𝐥𝐞 𝐮𝐧𝐝𝐞𝐫 𝐒.𝐍𝐨. 𝟔𝟔(𝐚).

To read more about this case, click here:

Hon’ble P&H High Court allowed the appeal filed by petitioner in case where his appeal was dismissed as not maintainable being barred by time and for being making pre-deposit after total period of limitation of 4 (3+1) months given under section 107 of the Act. Hon’ble Court re-stored the appeal to the files of appellate authority.

Want to know why, kindly have a reading about the case.

• Petitioner’s KYC details were used by members from syndicate of fraudsters engaged in generation of fake GST without his knowledge.
• Said syndicate generated and passed on hefty amount of GST.
• Despite arrest of members of syndicate, department issued show cause notice on petitioner proposing demands towards GST by personating him as a taxable person and proposing demand for penalty u/s 122(1A), Hon’ble Delhi High Court.

Download Order

Retrospective cancellation of registration and denial of ITC to recipients

In case registration is requested to be cancelled by taxpayer himself in Form GST REG-16, and the application is complete in all respects, the proper officer is duty bound to cancel the registration w.e.f. date requested by the taxpayer.Observing the proper officer has proceeded to issue the notice in Form GST REG-03 and rejection order in Form GST REG-05, instead of issuing cancellation order in Form GST REG-19And that he, thereafter, proceeded to cancel the registration retrospectively w.e.f. 02.07.2017, a writ petition was filed before Hon’ble Delhi High Court.

To read in detail about the case,Click here:

Redroom Technology Private Limited Vs Union of India and Ors. HC – Kar

Setting aside order for Cancellation of GST Registration

In a case argued by us, Hon’ble Karnataka High Court was pleased to set aside the order dated 31.03.2023 passed for cancellation of GST Registration of the Petitioner for the reasons “taxpayer was not functioning or existing at the principal place of business”. Hon’ble court observed that the reasons are incorrect and petitioner is very much functioning in Bengalore.

Download copy of Judgment

Single contract of construction of sewage treatment
plant including operation &
maintenance thereof for 15 years

Hon’ble Uttarakhand High Court was pleased to admit the writ petition and issued notice to the respondents on challenge made to the order passed by Appellate Authority for Advance Ruling (AAR-Appeals).In this case, AAR-Appeals upheld that supplies made under ‘contract for construction of sewage treatment plant including operation & maintenance thereof for 15 years’ are composite supplies because of the reason that a single contract has been entered; there was a single e-bid; O&M is intrinsic part of the main contract; O&M is not an independent activity, and no separate exclusive contract has been made for the same. Therefore, the services provided during O&M period are also taxable at the rate applicable for construction of sewage treatment plant. However, the petitioner claims O&M services to be exempt as the value of supply of goods constitutes not more than 25% of the value of O&M service.

To read in detail about this case, click here:

We are pleased to share our recent achievement in a case where adjudication officer dropped the demand in entirety, confirmed vide demand order issued on the basis of mis-match between amount of input tax credit claimed in Form GSTR-3B with that appearing in Form GSTR-2A.

Want to know why, kindly have a reading about the case.

GST law, though fully electronic, but cannot shade away the requirements of principle of natural justice, fair play and equity. In a matter represented by us before adjudicating authority wherein the input tax credit was not appearing in Form GSTR-2A of the assessee due to issuance of invoices by suppliers at inactive GSTIN of the same in assessee in same State, the relief was granted on account of bonafideness of the claims; genuine hardships faced by the taxpayers during FY 2017-18 and fairness of disclosures made in Annual Return as well as Reconciliation Statement.

Want to know why? Kindly have a reading about the case.

Read more to know why.

The adjudication officer dropped the proceedings for recovery of refund sanctioned erroneously after observing that: the refund is not to be sanctioned as per lower of the balance available in particular head i.e. CGST, SGST and IGST. Refunds were correctly sanctioned after determining the refundable amount in totality and then reducing the balances in terms of provisions of circular number 59/33/2018 GST dated 04.09.2018.

Want to know why? Please have a reading about the case.

Want to know more? Please have a reading about the case.

In cases of payment of taxes made under wrong head, the relevant date is the date of payment under correct head of tax. However, for the payment under correct head made before 24.09.2021, the relevant date is 24.09.2021.Besides this, the order was declared as unsustainable as the personal hearing was not given, reply to show cause notice was not considered and noting that the refund order was issued in the form of a verification report signed by Superintendent.

Read more

The appellate authority set aside the refund order as being passed in a very haste and vague manner. Taking a note of the vagueness in the order, and non-availability of AIO and other required facilities, the appellate authority issued the direction to adjudicating authority to process the same.

Want to know why? Let us have a reading about the case

• The assessing authority confirmed the demand for reversal of input tax credit under Rule 42 of the CGST Rules, 2017.
• AO is of the view that entire ITC is common i.e., ITC used for trading of RMC and ITC used for construction activity.
• On being represented before appellate authority and placing on records that the (a) separate accounts are prepared for each type of supply, and (b) in respect of construction services, once a block is completed, construction of another block starts.
  Therefore, ITC till date of issuance of occupancy certificate in respect of completed block shall only be considered as “common ITC”, the demand confirmed by AO was reduced in terms of submissions made above.

• The assessing authority confirmed the demand for reversal of input tax credit under Rule 42 of the CGST Rules, 2017.
• AO is of the view that entire ITC availed for FY 2018-19 (i.e., ITC used for trading of RMC and ITC used for construction activity) is common in respect of units supplied in FY 2018-19
  for which completion certificate was issued in 2017-18.
• It was represented before appellate authority and placing on records that the (a) separate accounts are prepared for each type of supply, and (b) in respect of construction services, once a block is completed, construction of another block starts. Therefore, entire ITC availed during FY 2018-19 cannot be considered as “common ITC”.
• The demand confirmed by AO was dropped in entirety as alleged common ITC is not a common ITC.

• The assessing authority confirmed the demand for reversal of input tax credit under Rule 42 of the CGST Rules, 2017.
• Additionally, the amount of ITC was considered as ineligible as per NN 03/2019-CT (Rate).
• AO is of the view that entire ITC (i.e., ITC used for trading of RMC and ITC used for construction activity) availed for FY 2019-20 is common in respect of units supplied in FY 2019-20 for which completion certificate was issued in 2017-18.
• On being represented before appellate authority and placing on records that the (a) separate accounts are prepared for each type of supply, and (b) in respect of construction services, once a block is completed, construction of another block starts. Therefore, entire ITC availed during FY 2019-20 cannot be considered as “common ITC”.
• Further, an intimation was duly submitted before administrative jurisdictional office on 10.05.2019. Therefore, entire ITC is not at all ineligible.
• The demand confirmed by AO was dropped in entirety as alleged common ITC is not a common ITC.

• Appreciating the facts of case, Hon’ble Bombay
  High Court vide its judgment dated 06.02.2024, ordered that detained goods be
  released.
• Hon’ble court observed that the case involves
  dispute over classification of diary based coffee drinks and in past, similar goods were
  imported as also cleared by the respondents on the strength of bank guarantee for an
  amount equivalent to differential duty of 16%/ 28%.
• The consignment under dispute is having
  assessable value for Rs. 25,00,000/- and respondents sought bank guarantee for Rs. 25
  lacs to release the goods.
• Hon’ble court appreciated that in past,
  consignments have been released by taking bank guarantee for 16%/28% only and that
  detention charge of Rs. 6 lacs has already been suffered by the petitioner on detained
  goods. Hence, Court ordered to release the goods by accepting BG for Rs. 2 lacs
  only.
• Further, in respect of BGs submitted for
  provisional assessments done in past from July 2022 to August 2023, appreciating the
  submission that further action in the case has become barred by time, Hon’ble court
  directed the petitioner to submit a representation for return of all BGs in accordance
  with law.

The first appellate authority has issued an order upholding that relevant date for determining
eligibility to opt for the scheme is 30.06.2019. If a search is conducted after said date, it will
not bar the applicant from the applying under the scheme.Besides above point, demand
towards CENVAT Credit was ordered to be raised which has also been adequately addressed in this
order.

Want to know more? Please have a reading about the case

In a case recently argued by us before Hon’ble CESTAT, Hyderabad, the application for restoration of
appeal, which was dismissed for non-prosecution in 2017, is allowed.It is very
rare to see cases wherein the applications are allowed after this gap. Hence, one may take a note of
this decision for reference, if required.

To read in detail about this case, click here:

MCM Transport Private Limited Vs The Commissioner of Central Excise, Customs
and Service Tax – CESTAT, Hyderabad

• Services Tax collected on
  behalf of Principals and remitted to them
• Agency Commission for being
  agents of shipping lines

• CESTAT held that the practice
  of collecting services tax on behalf of principals and remitting the same to them is
  against the method specified u/s 73A and thus, confirmed the demand against the
  appellant.
• On the issue of Agency
  Commission, appreciating the submissions of appellant that there was a profit in
  ‘trading in cargo space’, CESTAT remanded back the matter for
  re-adjudication.

To read in detail about this case, click here:

MCM Transport Private Limited Vs The Commissioner of Central Excise, Customs
and Service Tax – HC, Telangana

• Services
  Tax collected on behalf of Principals and remitted to them 

• Hon’ble Telangana High Court
  sets aside the demand confirmed by CESTAT, Hyderabad on the issue where services tax
  collected on behalf of principals was remitted directly to the Principals. Hon’ble court
  observed that demand in said facts cannot be confirmed u/s 73A of the Act.

To read in detail about this case, click here:

In this case, we represented the assessee to arrive at the taxable turnover on which VAT is payable
under the Act. After duly going through the jurisprudence over the subject, we succeeded in
following,
–
i)             allowing the
deduction of assessed turnover of sub-contractors from the Gross Taxabe Turnover,
and
ii)            allowing the
deduction of WCT deducted and paid in respect of unregistered sub-contractors.

Want to know why? Kindly
have a reading about the case.

Touchstone Foundation Vrindavan NCR Vs Commissioner of Commercial Tax, U.P., UPVAT Tribunal (Agra)

Re-opening of Ex-parte Assessment Order v Appeal on
merits

The provisions for re-opening of ex-parte assessment order hales its chequered history from Order 9
Rule 13 of the Code of Civil Procedure, 1908. The basic objective of adopting both remedies is to
set aside the assessment order. However, the doctrine of merger has an important role to
play.

Meaning thereby, if the order is passed by appellate authority, the application
to set aside the assessment order becomes infructuous because the assessment order merges into
appeal order. On the other hand, if the application to set aside the assessment order is allowed,
then appeal becomes infructuous as the order against which appeal was filed is no longer in
existance.

Recently, in one of cases dealt by us, we contested the matters based on
above understanding of law and hence, the recovery proceedings initiated against the assessee came
to an end.

Want to
know more? Please have a reading about the case

Commissioner of Commercial Tax, U.P. Vs Touchstone Foundation, Shri Radha Vrindavan Chandra Mandir, Mathura, UPVAT Tribunal (Agra)

Margin added in deemed sales turnover as well as restaurant turnover

UPVAT Tribunal dismissed the appeal filed by Department holding the order passed by first appellate authority as just and proper.

Brief case:
The assessing authority assessed the turnover of materials consumed in construction of flats by adding a margin of 20%; assessed the turnover of restaurant business by adding a margin of 20% as the assessee failed to furnish day books. In an appeal filed by the assessee, said additions were reduced to 10% by the first appellate authority.

While dismissing the Department’s appeal, UPVAT Tribunal appreciated that there is no finding regarding evasion pointed out by the department and hence, order of the first appellate authority is just and proper.

Want to
know more? Please have a reading about the case