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Please bookmark this small Q&A with landmark cases on Section 129 and Section 130 that challenge both Taxpayers and Tax Professionals.
Q1. What is the scope of powers U/s 129 and 130?
A1. S.129 and S.130 are independent of each other. S.130 provides for the confiscation of goods
or conveyance is not dependent on or subject to S.129. Both sections are mutually exclusive. Gujarat High Court in Synergy Fertichem Pvt. Ltd.
vs State of Gujarat (23-Dec-2019)
Rejection of GST Registration on the ground that more than one business entity was running from the same premises.
The new registration was applied on the same land which comprised to an extent of three acres.
31-Jul-2023: 1st application for GST Registration: Rejected, without assigning reasons
22-Aug-2023: 2nd application for GST Registration: Rejected with remark on issue of place of business
Penalty cannot be levied by the Tax Authorities for Minor Breach or Procedural Requirements. Section 126 (1)
Let's decode Penalty provisions.
Minor Breach = Tax involved is less than Rs. 5,000/-
Other cases where penalty not leviable:
(i) Minor breach for Tax Regulations
(ii) Breach for Procedural Requirements
(iii) Omission of a mistake which can be easily rectified
(iv) Mistakes and Omissions without fraudulent intent or gross negligence
(i) It is made without fraudulent intent
(ii) It does not result from gross negligence
Income Tax TDS deducted but not deposited with the Department; credit allowed?
Whether the assessee is entitled to credit concerning the tax which had been deducted with respect to the transaction entered into by him?
Delhi HC held that demand against assessee not sustainable.
Act does not seem to cast a burden on the deductee/payee with regard to the deposit of money, which is retained as tax, by the payer i.e., the deductor.
The onus is on the Taxpayer to prove and establish beyond doubt the actual transaction, actual physical movement of goods as well as the genuineness of the transactions while claiming ITC. Allahabad High Court
To support claim of ITC petitioner filed tax invoice, e-way bill, weighment receipt before & after loading, bilty, etc.
Thereafter, on scrutiny, neither the supplier nor the person who issued the bill and weighment slip were found to be existent.
Top 5 recent Landmark Judgments of GST
I request that you please bookmark this tweet for future use.
1. Personal Hearing is Mandatory - Allahabad High Court
Notice initiating proceedings had no provision for personal hearing.
The Order was passed by the Assessing Authority without hearing taxpayer. HELD: Records indicate that assessment order was passed without hearing. Original orders suffers from vice of not following mandatory provisions as contained in section 75(4) of CGST Act and
Can Assessee be punished for mistake of their accountant?
Can Assessee's GST Registration be cancelled because Accountant filed NIL Return?
The question was before Madras High Court where Department followed the law but assessee's accountant did a mistake.
The accountant, without taking instructions from the assessee, filed "NIL" return on the presumption that assessee had not commenced the business, proper officer cancelled the registration and said accountant filed GSTR-10 (Final Return) and completed cancellation formalities.
Andhra Pradesh High Court condones a delay on medical grounds of 112 days in filing Appeal, subject to the Petitioner depositing 20% of the disputed tax. M/s Bheemaneni Projects vs The Deputy Assistant Commissioner (ST)-III (Writ Petition No.2706 of 2023, 04-Jul-2023)
Let's understand Condonation of Delay:
In GST Laws, First Appeal has to be filed within 3 months of service of Order as per Section 107.
1 month additional period can be condoned on sufficient cause by the Appellate Authority.
Important Points related to Show Cause Notices.
Please bookmark the tweet and appeal to follow me.
1) SCN is MANDATORY requirement for raising any Demand of Tax.
2) The SCN is the FOUNDATION of Litigation. Supreme Court in Brindavan Beverages
3) The basic aim of SCN is to provide a REASONABLE opportunity to the Noticee to present their case (basically their side of story).
4) Only a "Proper Officer" can issue you Notice. "Proper Officer" varies as per underlying proceedings (section to section).
Top-5 recent Judgments on ITC issues:
1. Where assessee had availed excess ITC and reversed it before utilizing it for payment of central tax liabilities, demand for interest and penalty by revenue was to be held invalid. Punjab & Haryana HC in Deepak Sales Corporation v UOI
2. Reimbursement of GST on account of price variation of item used in contract could not be denied on ground that output tax was paid through electronic credit ledger using input tax credit. Gauhati High Court in HCC-CPL (JV) vs Union of India