#allahabadhighcourt Archives - Page 2 of 8

24 Oct

Burden To Prove The Actual Physical Movement Of The Goods Is Upon The Purchasing Dealer For Availament Of Input Tax Credit : High Court Of Allahabad

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Title: M/S Malik Traders v State Of U.P. And 2 Other

Citation: WRIT TAX No. – 1237 of 2021

Decided On: 18.10.2023

Coram: Justice Rahul Divedi

Introduction:

The current Writ Tax is accepted by the Court in view of the fact that G.S.T. Tribunal is not functional in the State of Uttar Pradesh pursuant to the Gazette notification of the Central Government, dated 14.09.2023. proceedings of Section 74 of UP GST Act was initiated demanding Rs. 12,32,148/- as wrong availment of input tax credit which was confirmed by the impugned order dated 6.3.2021.

Facts:

petitioner is a registered dealer, and he is engaged in the purchase and sale of waste materials, plastic scrap, paper scrap and metal scrap. The petitioner from April 2018 to September 2019 has disclosed the turnover of Rs. 34,22,634/- on which input tax credit of Rs. 6,16,074.12/- was availed.

Thereafter a show cause notice was issued on 23.1.2019 under Section 74 of UP GST Act on the ground of wrong availment of input tax credit to which a reply was submitted by the petitioner. Later on tax liability to the tune of Rs. 6,16,074/- along with penalty of Rs. 6,16,074/- total amount Rs. 12,32,148/- was demanded from the petitioner by the order dated 4.10.2019.

It was argued that the benefit of tax credit in the G.S.T. regime is being brought with intention to avoid cascading effect and once the tax has been charged on the bill and paid by the petitioner through banking channel, the benefit of input tax credit cannot be denied.

It is submitted that petitioner has rightly discharged its tax liability by paying the tax charged on the bills raised by the selling dealer and if the selling dealer have not deposited the tax so charged from the petitioner, the selling dealer shall be penalized and not the petitioner.

On the other hand Mr. Rishi Kumar, learned A.C.S.C. has supported the impugned orders and submitted that under Section 16 of UP GST Act it has been provided that input tax credit can be availed with certain conditions stipulated therein, in the event of non-fulfilment of such conditions as enumerated therein, the benefit of input tax credit cannot be accorded.

or availment of input tax credit, the petitioner is duty bound to prove beyond any reasonable doubt and establish that actual transaction took place and merely furnishing the details of tax invoices, e-way bills, GR is not sufficient. The petitioner was required to give details i.e. vehicle number which were used for transportation of goods, payment of freight charged, acknowledgement of taking delivery of goods and payment etc.

Court’s Analysis and Judgement:

In the case of State of Karnataka Vs. M/s Ecom Gill Coffee Trading Private and in M/s Aastha Enterprises Vs. State of Bihar, it has been held that the burden to prove the actual physical movement of the goods is upon the purchasing dealer for availament of input tax credit.

According to Section 16 of U.P.G.S.T. every registered dealer can claim the benefit of input tax credit only on fulfilment of certain conditions as enumerated under the Act. And section 74 of U.P.G.S.T. it is clear that determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised by reason of fraud or any wilful misstatement or suppression of facts empowers to issue notice that tax has not been paid or short paid or erroneously refunded or input tax credit has wrongly been availed or utilized by any reason or wilful misstatement or suppression of fact.

the petitioner has only brought on record the tax invoices, e-way bills, GR and payment through banking channel, but no such details such as payment of freight charges, acknowledgement of taking delivery of goods, toll receipts and payment thereof has been provided. Thus in the absence of these documents, the actual physical movement of goods and genuineness of transportation as well as transaction cannot be established thus the proceeding has rightly been initiated against the petitioner.

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Written By: Sushant Kumar Sharma

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20 Oct

Without challenging the findings, the petitioner cannot expand their case beyond the original pleadings: Allahabad High Court

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Title: M/S Millennium Impex Pvt. Ltd. Vs Additional Commissioner Grade-2 (Appeal) – I State Tax, Noida and 2 Others

Date of Decision: 18th October 2023

CORAM: Hon’ble Piyush Agrawal, J.

Introduction

The present review seeks to re-examine the judgment rendered in case 2023: AHC:201258, which was delivered on 18th October 2023 by Hon’ble Piyush Agrawal, J. The original judgment dealt with a Writ Tax matter involving M/S Millennium Impex Pvt. Ltd. as the petitioner and the Additional Commissioner Grade-2 (Appeal) – I State Tax, Noida, along with two others as the respondents. The petitioner challenged an order dismissing their appeal against the imposition of tax and penalty. The primary issue revolved around the seizure of goods due to an alleged technical lapse in the e-way bill.

Facts of the Case

The petitioner, M/S Millennium Impex Pvt. Ltd., is a registered company dealing in metal seated zero leakage Ball Valves. They had made an outward supply of certain goods to NTPC Ltd., Ramagundam Super Thermal Power Station, which were being transported from New Delhi to Telangana via Agra, Uttar Pradesh. During transportation, the goods were intercepted by one of the respondents. It was discovered that a part of the e-way bill was left blank, leading to the imposition of tax and an equal amount of penalty. The petitioner challenged these actions, which were upheld by the first respondent.

Court’s Analysis and Decision

In the original judgment, the Court considered various arguments presented by both parties. The petitioner contended that there was no intent to evade tax, and the seizure of goods due to a minor technical issue in the e-way bill was unjust. They cited previous judgments and a circular dated 14th September 2018 to support their case.

The respondents, on the other hand, argued that the seizure and penalty were justified since the e-way bill issue was in contravention of the law. They emphasized that the petitioner had not provided any explanation for the blank part B of the e-way bill.

However, in the review, it is essential to note that the judgment in question raised a fundamental procedural concern. The petitioner’s arguments, as laid out in the original judgment, were based on their appeal grounds, which failed to explicitly challenge the findings of fact in the impugned order.

The Court referred to established legal principles, including the need for a party to provide relevant facts and evidence in their pleadings, and the importance of not expanding the scope of the case beyond the pleadings. It also highlighted that no rebuttal or rejoinder affidavit had been filed by the petitioner to address the assertions made by the respondents in their counter affidavit.

Ultimately, the Court concluded that without a proper challenge to the findings of fact recorded against the petitioner in the original judgment, the petitioner could not argue the case beyond the pleadings. The judgment in the original case was upheld, and the review was dismissed accordingly.

Review Conclusion:

The review of the judgment (2023: AHC:201258) reiterates the importance of adhering to established legal procedures, emphasizing the need for parties to plead and prove their case within the scope of their pleadings. The Court’s decision in the original judgment, dismissing the petitioner’s claims, is upheld in this review.

Written by- Tarishi Verma

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19 Oct

Allahabad High Court Issues A Mandamus To Reinstate The Registration Certificate of Petitioner With Effect From 18.8.2022, Along with Consequential Benefits.

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Title: M/S Vidya Coal Depot v. Additional Commissioner Grade (Appeal) Ii And Another

Decided on: 5th October 2023

WRIT TAX No. – 394 of 2023:AHC:192420

Coram: HON’BLE PIYUSH AGRAWAL.

Introduction

The High court of Allahabad has entertained Writ Tax since G.S.T. Tribunal is not functional in the State of Uttar Pradesh pursuant to the Gazette notification of the Central Government. The petitioner has assailed the order passed by Assistant Commissioner Sector-14 Commercial Tax, Agra cancelling the GST registration of the petitioner under Section 29 (2) of U.P.G.S.T. Act. A mandamus has been sought for restoration of the registration of petitioner.

Facts of the case

Smt. Vidya Devi is the proprietor of the petitioner firm carrying the business of purchase and sale of coal on retail basis for which the GSTIN was granted. Since the petitioner’s turn over was below Rs. 50 lacs, it opted for compounding scheme under Section 9(1) of U.P.G.S.T Act as provided under Section 10 of the Act. On 24.09.2022, a show cause notice was issued by respondent no.2 to cancel the registration of the petitioner with the direction of the TTZ authority and written direction by JC (SIB) B Agra for cancellation of registration of all coal depot. The petitioner replied through registered post on 3.10.2022. Not being satisfied with the reply, the registration of petitioner was cancelled order dated 14.10.2022. Aggrieved by the order, petitioner preferred an appeal, but was rejected by order dated 1.12.2022. Hence the writ petition was filed.

Court Analysis and Decision

The petitioner has not violated Section 29 read with Rule 21 of UPGST Act and Rules framed therein. The registration of the petitioner has been cancelled at the behest of direction issued by JC (SIB) B, Agra as well as the direction of TTZ authority, but neither a copy of such direction has been provided at any stage to the petitioner nor the same was annexed along with the copy of notice issued to the petitioner. It was wrongly mentioned that no reply was submitted by the petitioner. The record reveals that along with the cancellation order, an appendix order was filed in the counter affidavit. It appears that to improve the case of the revenue such appendix has been annexed for the first time by the officer/respondent in the counter affidavit. The Apex Court in the case of Mohinder Singh Gill Vs. The Chief Election Commissioner, held that State authority cannot be permitted to supplement fresh reasons by means of affidavit and the the appendix along with the cancellation order cannot be any aid to the respondent authority.

It is a matter of common knowledge that under the GST Act, A/c book are to be maintained by every person. In absence of such, no violation of rule of UPGST Act, be made out against the petitioner. Once, there is no violation of Section 29 read with rule 21, any action taken for cancellation of registration cannot sustain in the eye of law. Thus, the judge has quashed the orders dated 14.10.2022 & 01.12.2022 and has issued a mandamus to the respondent-authorities No.1 to 3 to reinstate the registration certificate of petitioner immediately with effect from 18.8.2022 with all consequential benefits.

Written by- K R Bhuvanashri

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11 Oct

The Allahabad High Court criticized the National Minorities Commission for overstepping its authority and summoning officers without valid grounds.

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Case Title: Divine Faith Fellowship Church and Another vs. State of U.P. And 5 Others 2023

Decided on: 26^th September, 2023

Writ no. – C No. – 30476 of 2023

CORAM : Hon’ble Mahesh Chandra Tripathi,J. Hon’ble Prashant Kumar,J.

INTRODUCTION

The case of “Divine Faith Fellowship Church and Another vs. State of U.P. And 5 Others” in 2023 involves a dispute where a church-owned property in Uttar Pradesh, India, had been illegally occupied.

The petitioners, a Christian organization, sought legal action through the U.P. Commission for Minorities and later the National Commission for Minorities. The case primarily focuses on whether these commissions had the authority to adjudicate and order actions related to the property dispute and whether their actions exceeded their statutory jurisdiction.

Facts of the case:

The petitioners, an NGO associated with a church, claimed ownership of property including Shop no. 13/1.They sought to evict an unauthorized occupant from Shop no. 13/1. The U.P. Commission for Minorities treated the case as a civil matter and ordered an FIR against the occupant.

The National Commission for Minorities got involved, issuing orders to assist the petitioners. The dispute centered on whether these commissions had the authority to handle the property dispute, leading to a legal challenge. The Allahabad High Court ultimately ruled that the commissions had exceeded their jurisdiction in this case.

Courts Analysis and Decision.

The court highlighted the limited statutory functions of these commissions, primarily aimed at safeguarding minority interests. Emphasized that these commissions do not possess the authority to adjudicate property disputes.

Criticized the practice of summoning government officers and pressuring them to pass orders beyond their jurisdiction. Reiterated that public officers should not be called to court unnecessarily. Deplored the commissions’ tendency to function as if they were courts, calling it an abuse of their position. Noted that such actions could result in the removal of commission members. Ultimately, the court dismissed the petition and affirmed that the commissions had acted beyond their authorized functions in the property dispute, underscoring the importance of respecting the separation of powers between the judiciary and executive branches.

Written by- Kusuma R

10 Oct

The Allahabad High court has ruled that Congress party must pay a sum of ₹2.66 crore to the UPSRTC for the utilisation for its vehicle during 1980s.

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Title: UP Congress Committee vs State of UP And Others.

Decided on: 05-10-2023.

Writ C No. – 3740/1998.

CORAM: Hon’ble Justice Vivek Chaudhary, Hon’ble Justice Manish Kumar.

Introduction:

The Allahabad High Court directed the Congress Party to pay over ₹2.66 crore to the Uttar Pradesh State Road Transport Corporation (UPSRTC) within three months for using its buses and taxis between 1981 and 1989.

A division bench of Justice Vivek Chaudhary and Justice Manish Kumar rejected the allegation of political vendetta raised by Congress and said that the amount should be paid along with an interest of 5 percent from the date it is due.

Facts of the Case:

Dispute between UP Congress Committee (UPCC) and Uttar Pradesh State Road Transport Corporation (U.P.S.R.T.C.) wherein U.P.S.R.T.C. claims Rs. 2,68,29,879.78 from UPCC for using its vehicles during UPCC’s government tenure.

A recovery notice dated 10.11.1998 triggered the legal battle thereafter UPCC filed a writ petition, arguing the recovery notice’s legality under the U.P. Public Moneys (Recovery of Dues) Act, 1972.

The case has been pending since 1998 without resolution and Documents show unpaid bills for vehicles used in political activities. UPCC claims these were instructed by the State Government.

The primary legal issue is whether the amount can be recovered as land revenue under the Act, despite no specific agreement.

Court’s Analysis and Decision:

The court notes that while there may not be a specific agreement for recovery under the Act of 1972, the petitioner did use the services of U.P.S.R.T.C. for its political activities, and bills were raised for these services.

The petitioner UPCC is directed to pay to the respondents U.P.S.R.T.C. the entire due of Rs.266 Lakhs along with an interest of 5% from the date it is due within a period of three months.

Written by- Kusuma R

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