TaxTMI 
TaxTMI 
2021 (9) TMI 55
X X X X Extracts X X X X
X X X X Extracts X X X X
....assessee/petitioner company was allowed and decision of the respondent no.5/Deputy Commissioner, Sector-1, State Tax, Chandausi, Sambhal (Assessing Officer), communicated to the petitioner vide e-mails dated 23.7.2020 & 06.8.2020 for blocking of credit, was set aside. 3. The petitioner is a company incorporated under the provisions of the erstwhile Companies Act, 1956 having its unit at Shaktinagar, Chandausi, District Sambhal, U.P.. It is a subsidiary company of M/s Sohanlal Commodity Management Pvt. Ltd ('SCMPL') dealing in the business of procuring commodities on behalf of its customers on Pan India basis, storing such commodities in the warehouses owned and operated by SCMPL and thereafter supplying such commodities to different persons on the instructions of the customers. The SCMPL is primarily engaged in providing warehousing services for which it is registered under the provisions of the Warehouse (Development and Regulation) Act, 2007. On account of multiplicity of operations, the petitioner company maintains its books of account electronically in a centralized system prescribed under Rule 10 of the erstwhile Central Excise Rules, 2002 and Section 35 of the GST ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r intended to be used in the course or furtherance of his business and the said amount shall be credited to the electronic credit ledger of such person. Sub-section (2) provides that no registered person shall be entitled to take input tax credit unless he is in possession of a tax invoice, debit note or any other prescribed duty paying documents and he has received the goods or services or both. Section 17 of SGST Act provides for apportionment of credit and blocked credits. Sub-sections (1), (2), (3) & (4) provide for restricted credit, whereas sub-section (5) provides for circumstances in which credit is not admissible. Sub-section (6) confers powers on Government to prescribe the manner in which credits referred to in sub-section (1) and (2) may be attributed. Section 49 provides that every deposit made towards tax, interest, penalty, fee etc. shall be credited to the electronic cash ledger, whereas input tax credit as self-assessed in the return of registered person shall be credited to his electronic credit ledger. Section 49 also provides that the amount available in the electronic cash ledger may be used for making any payment towards output tax in such manner and subject t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....such suppliers. Since the petitioner is using warehousing services provided by SCMPL at different locations, hence e-way bills were also generated for movement of goods from the supplier's place to the warehouses operated by SCMPL. Such supply was also supported with gate pass in Form V-A issued by the Market Committee and bill in Form 9R by the supplier. Upon receipt of Mentha oil at warehouses of SCMPL, three samples are drawn for testing quality/properties of Mentha oil. After receipt of test reports, Mentha oil is warehoused, after making appropriate entry in stock register maintained at warehouses. The Mentha oil are not brought to the branches of petitioner situated within the State of U.P. The petitioner company maintains books of accounts electronically online and details of goods purchased and sold by the petitioner are also available at the warehouses operated by SCMPL. 10. During the period of 2018-19 the petitioner purchased Mentha oil from different suppliers including M/s Jai Balaji Trading Company. The purchases made from M/s Jai Balaji Trading Company during the period 2018-19 were to the tune of Rs. 20188.39 lacs (inclusive of SGST & CGST). The Mentha oil so....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... at the Chandausi warehouse and as such, the said stock was not suppressed and the same was seized on 13.9.2019 treating it as out of books or undisclosed. 12. The warehouse of SCMPL at Barabanki informed to the Commercial Tax Department at Ayodhya on 05.9.2019 that 161 drums of the petitioner were lying at the warehouse and despite this disclosure the same stock was seized on 28.2.2020. The petitioner through its authorized representative appeared on every occasion, whenever he was summoned either at Moradabad or at Ayodhya. The search was conducted on 13.9.2019 at all the places and the petitioner submitted its detailed explanation on 21.9.2019. On 04.12.2019 the entire details relating to outward supplies of Mentha oil made by the petitioner including the ledger account, e-way bills, 9R Forms, gate passes, invoices, bank transactions, were made available to the officers of State tax and after submission of these details, out of 1397 drums of Mentha oil detained from the Barabanki warehouse, 1236 drums relating to other parties, were released by the officers of State tax. The summons dated 09.12.2019 under Section 70 of the SGST Act were issued to the officers of the petitione....
X X X X Extracts X X X X
X X X X Extracts X X X X
....yment of applicable taxes, interest and penalty payable, as the case may be, as predicated in Section 67 (6) of the Act. In the interim orders passed by the High Court which are subject matter of assail before this Court, the High Court has erroneously extricated the assessees concerned from paying the applicable tax amount in cash, which is contrary to the said provision. In our opinion, therefore, the orders passed by the High Court which are contrary to the stated provisions shall not be given effect to by the authorities. Instead, the authorities shall process the claims of the concerned assessee afresh as per the express stipulations in Section 67 of the Act read with the relevant rules in that regard. In terms of this order, the competent authority shall call upon every assessee to complete the formality strictly as per the requirements of the stated provisions disregarding the order passed by the High Court in his case, if the same deviates from the statutory compliances. That be done within four weeks without any exception. We reiterate that any order passed by the High Court which is contrary to the stated provisions need not be given effect to in respect....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... along with a certified copy of this order enclosing therewith a copy of the writ petition and its Annexures and, if any such application/representation is filed, the concerned authority shall make all endeavour to consider and decide the same by a reasoned and speaking order, after affording opportunity of personal hearing to the petitioners, in accordance with law expeditiously preferably within two weeks from the date of receipt of the said application." 14. The petitioner company was contesting with the respondents in respect of the drums seized from the warehouses of SCMPL by email dated 23.7.2020 sent by Goods and Services Tax network. For the first time, it was transpired to the petitioner through e-mail communication dated 23.7.2020 that the input tax credit available in the electronic credit ledger of the petitioner has been blocked and upon further enquiry, copy of the decision taken by the respondent no.5 was provided to the petitioner on 06.8.2020 informing that input tax credit of Rs. 47,40,767/- under the CGST Act and Rs. 47,40,767/- under the SGST Act (cumulative Rs. 95,11,774/-) was blocked under Rule 86-A of the SGST Rules. 15. Aggrieved with the said decisio....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., the same cannot be rejected; (viii) Before blocking input tax credit, concerned authorities have not conducted any enquiry and the decision dated 6.8.2020 has been passed by respondent no.5 in a routine manner only on the basis of letter issued by Deputy Commissioner (SIB), Ayodhya, without verifying the same himself; (ix) Principle of natural justice also requires that a speaking and reasoned order is passed, but respondent no.5 has passed a non-speaking and nonreasoned order; (x) There is no requirement under the SGST Act that purchased goods must necessarily be first brought to the business premises and thereafter transported to the warehouse. Such practice is time saving, commercially expedient as warehouse has sophisticated infrastructure to store mentha oil, saves money and quality of mentha oil. (xi) Adverse inference cannot be drawn if the business premises is found closed during inspection and the registered person cannot be treated as bogus on the said ground." 16. The Appellate Authority, on the basis of aforesaid reasoning/findings, decided the appeal with the findings that before blocking the credit, there was no 'reason to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on (2) prohibits exercise of revisional powers, if (a) the order has been subjected to an appeal under Section 107 or Section 112 or Section 117 or Section 118; or (b) the period specified under sub-section (2) of Section 107 has not yet expired or more than three years have expired after the passing of the decision or order sought to be revised; or (c) the order has already been taken for revision under this Section at an earlier stage; or (d) the order has been passed in exercise of the powers under sub-section (1). The proviso carves out an exception and provides that the revisional authority may pass an order on any point which has not been raised and decided in an appeal referred to in clause (a) of sub-section (2), before the expiry of period of one year from the date of order in such appeal or before the expiry of period of three years, whichever is later. 18. Shri Sinha would argue that once the word 'order' used in clause (a) refers to 'adjudication order' then such order can be passed by 'Adjudicating Authority'. Thus, the order passed in appeal by the Appellate Authority is not an 'Adjudication Order' and consequently, the same cannot b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e effect that the order dated 10.3.2021 passed by the Appellate Authority is erroneous insofar as it is prejudicial to the interest of revenue. On the contrary, in the impugned order the respondent no.3 has only observed that prima facie, there is reason to believe that the order dated 10.3.2021 is improper and prejudiced to the interest of revenue. In absence of any finding to the effect, that the order dated 10.3.2021 is erroneous, the exercise of powers under Section 108 by the respondent no.3 is wholly without jurisdiction. The defect in the said order while invoking revisional powers under Section 108 cannot be cured at a later stage, inasmuch as Section 108 can be invoked only if the circumstances specified in Section 108 exist and once it is invoked, the respondent no.3 is free to pass such order as he thinks just and proper and thus the impugned order suffers from inherent lack of jurisdiction. 20. Shri Sinha further pointed out that every loss of the revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interest of revenue. An order can be erroneous only when it is based on incorrect assumption of facts and incorrect assumptio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t assume jurisdiction to revise such order simply on the ground that the revenue is not happy with the order and under the garb of revision, the respondent no.3 cannot be allowed to conduct a fishing and roving enquiry in the matter. In this regard, he has placed reliance on the judgments in Paul Mathew & Sons v. CIT 263 ITR 101 (Ker.), CIT v. Gabriel India Ltd 203 ITR (Bom.); CIT v. Arvind Jewellers 259 ITR 502 (Guj.); Sun Beam Auto Limited (2009) TOIL-552-HC-Del-IT , CIT v. Ratlam Coal Ash Co. 171 ITR 141 (MP), CIT v. Ganpat Ram Bishnoi 152 Taxman (2008) 296 ITR 0292, CIT v. Mehrotra Brothers 270 ITR 157 (MP) and CIT v. Associated Food Products (P) Ltd. 280 ITR 377 (MP). 22. He further submitted that the respondent no.3 has neither served any notice nor granted opportunity of hearing to the petitioner before passing the order impugned. Rule 86A could not have been invoked by the respondents during the investigation or inquiry. Rule 86A has prescribed a mandatory procedure to be followed for the purpose of invoking the same. The Rule provides for "reasons to be recorded in writing" for blocking or not allowing the utilization of the ITC. It is argued that the procedure, as pres....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r firm. Upon making further investigation it was found that the owner of the said firm is residing in Delhi. On analysis of the information available online, it was found that the rules of SEBI and MCX have been violated and fraud has been done in the guise of online trading by the firm in question. 25. Shri Pandey argued that ITC has been used by showing the purchase of about Rs. 250 crores from non-existent firm M/s Jai Balaji Trading Company, whereas, it is clear from the money trail of the bank statement that only Rs. 5 crore has been paid against it. In this way, ITC has been obtained through bogus invoices. On analysis of bank account it was also found that the petitioner company paid a fixed amount of Rs. 22,500/- per month to the proprietor of M/s Jai Balaji Trading Company, Barabanki. From the money trail of the petitioner's bank statement it was revealed that huge money has been transacted with some suspicious names/firms but on perusal of returns, no purchase/sale was declared from these dealers and most of these firms have been paid a fixed amount every month. The fixed monthly payment to the aforesaid persons makes it clear that these persons are employees of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te Government to determine the conditions for the use of funds available in the credit ledger for payment of any output tax. Section 49 (4) provides that the amount available in the electronic credit ledger may be used for making any payment towards output tax under this Act or under the Integrated Goods and Services Tax Act in such manner and subject to such conditions and within such time, as may be prescribed. Section 16 of the Act determines the eligibility and conditions for claiming input credit and empowers the Government to impose conditions and restrictions through rules. Section 16 (2) of the Act prescribes the entitlement of input credit. It is clear from Section 16 (2) (b) of the Act that there is no entitlement of input credit without receipt of goods or services. In view of the increasing cases of loss to the exchequer through bogus ITC claims on the basis of bogus forms, it was recommended by the GST Council to bring Rule 86A of GST Rules. There is no provision in Rule 86-A to provide an opportunity of being heard before blocking the credit. The restrictions prescribed by Rule-86A are for a limited period and are not in any way contrary to Section 73/74 or any other ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ount have been kept at any declared place of business. Therefore, there is sufficient ground to believe that no goods have actually been received by the petitioner company from its supplier M/s Jai Balaji Trading Company Barabanki and only invoices have been received. As per provisions contained in Section 16 (2) (b) the petitioner is not eligible to claim input credit on the basis of the invoices received by the petitioner company. The action in respect of bogus invoices received before implementation of Rule 86A is completely in accordance with the law. The notice has been issued to the petitioner company on 07.5.2021 to appear in the office of Commissioner, Commercial Tax, U.P. on 02.6.2021 for hearing. The order passed by the Appellate Authority under Section 108 of UPGST Act is in consonance with the order of the revisional authority passed by the Appellate Tribunal under Section 113 and the order passed by the High court under Section 117 as well as the order of Hon'ble Apex Court under Section 118. The stay order has been passed by the revisional authority under Section 108 (1) of UPGST. 29. In such circumstances, referred to above, Shri Pandey prays that the present ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt prescribed under rule 36, may, for reasons to be recorded in writing, not allow debit of an amount equivalent to such credit in electronic credit ledger for discharge of any liability under section 49 or for claim of any refund of any unutilised amount. (2) The Commissioner, or the officer authorised by him under sub-rule (1) may, upon being satisfied that conditions for disallowing debit of electronic credit ledger as above, no longer exist, allow such debit. (3) Such restriction shall cease to have effect after the expiry of a period of one year from the date of imposing such restriction.". 32. Having referred to Rule 86A above, the Court may now look into Sections 16 and 108 (1) and (2) of the CGST Act. The same read thus; "Section 16 - Eligibility and conditions for taking input tax credit (1) Every registered person shall, subject to such conditions and restrictions as may be prescribed and in the manner specified in section 49, be entitled to take credit of input tax charged on any supply of goods or services or both to him which are used or intended to be used in the course or furtherance of his business and the said amount ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eciation on the tax component of the cost of capital goods and plant and machinery under the provisions of the Income-tax Act, 1961, the input tax credit on the said tax component shall not be allowed. (4) A registered person shall not be entitled to take input tax credit in respect of any invoice or debit note for supply of goods or services or both after the due date of furnishing of the return under section 39 for the month of September following the end of financial year to which such invoice or invoice relating to such debit note pertains or furnishing of the relevant annual return, whichever is earlier. Provided that the registered person shall be entitled to take input tax credit after the due date of furnishing of the return under section 39 for the month of September, 2018 till the due date of furnishing of the return under the said section for the month of March, 2019 in respect of any invoice or invoice relating to such debit note for supply of goods or services or both made during the financial year 2017-18, the details of which have been uploaded by the supplier under sub-section (1) of section 37 till the due date for furnishing the details under sub....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ve" must have a rational connection with or relevant bearing on the formation of the belief. It is a subjective term and can be interpreted differently by different individuals. The Constitutional validity of Rule 86A of the Rules is not under challenge in the present case and the Court does not intend to test its validity in the absence of any specific challenge to the same. In such circumstances, the Court would confine its adjudication in the present litigation only to the question, whether the respondents could be said to be justified in invoking Rule 86A of the Rules for the purpose of blocking the input tax credit of the petitioner company pending the inquiry as regards the fraudulent transactions. 34. The Rule 86A is in respect of the power and procedure for blocking the input tax credit (ITC) in the electronic credit ledger of a registered person. A bare reading of Section 86A indicates that the Commissioner or an officer authorised by him in this behalf, not below the rank of an Assistant Commissioner, having reasons to believe that credit of input tax available in the electronic credit ledger has been fraudulently availed or is ineligible, may, for reasons to be record....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the respondent no.3 has neither served any notice nor granted opportunity of hearing to the petitioner before passing the impugned order. 36. The pre-conditions to the exercise of this powers were two folds, namely, error in the order passed by an officer subordinate to the revisional authority and prejudicial to the interest of revenue. Once these two conditions stood fulfilled, the revisional authority was authorized to give an opportunity to the assessee of being heard and after making such inquiry as he thought fit he could pass appropriate orders as the circumstances of the case would justify. This power was essentially a supervisory power. However, in order to ascertain whether the officer subordinate to him had passed an erroneous order, which was also prejudicial to revenue, the Commissioner was required to call for and examine the record of such proceedings. Therefore, the revisional authority had to call for the records, he had to examine such records, he had to be satisfied regarding fulfilment of the above two conditions and thereafter give opportunity to the assessee of being heard and on making appropriate inquiry the revisional authority is empowered to pass appro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....reto has been availed of for the purpose of manufacture of further goods." 38. As significant reliance has been placed on Eicher Motors Ltd. (supra), the Court may also look into the decision of the Supreme Court in the case of C.C.E vs. Dai Ichi Karkaria Ltd. 1999 (112) ELT 353 (SC). In the said case, the manufacturers purchased raw material and used the same in the manufacture of an intermediate product and, in turn, used the intermediate product in the manufacture of the final product. The raw material and the intermediate product were liable to excise duty and they were specified goods for the purposes of the Modvat Scheme. The assessable value of the intermediate product for the purposes of excise duty in the instant case was admittedly to be determined on the basis of its cost which necessitated the taking into account of the cost of the raw material. The Revenue contended that the excise duty paid by the seller on the raw material was also to be included in the cost of the excisable goods (the intermediate product) in this case. On the other hand, the manufacturers contended otherwise. The Supreme Court rejected the contentions of the Revenue and held in Paras-18 and 19 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ut tax credit pending the inquiry. (See Bhikhubhai Vithlabhai Patel & Ors. vs. State of Gujarat AIR 2008 SCC 1771). 41. On 12.5.2021, learned counsel appearing for the respondents was asked to get instructions on certain aspects. For ready reference, order passed by this Court on 12.5.2021 is reproduced below: "Mr. Nimai Das, learned Additional Chief Standing Counsel is granted a week's time to seek instruction in the matter. It is argued by Mr. Navin Sinha, learned Senior Advocate assisted by Mr. Nishant Mishra, learned counsel for the petitioner that operation of the appellate order, by which the Adjudicating Authority's order locking the Input Tax Credit had been reversed, has now been stayed. The submission is that the Revisional Authority has passed the order impugned without application of mind, merely paraphrasing the words of the statute with no reference to the facts of the case, or other material on record to reach his conclusion in favour of passing an interim order of stay. The State shall clarify in its instruction the aforesaid fallacy urged on behalf of the petitioner. Lay this matter as fresh again on 20.05.2021 before ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... * No documentary evidence including agreement between ISRPL and M/S Jai Balaji Trading Company i.e. ( C&F agent), terms of appointment, terms of payment/ commission, actual payment/ commission to M/S Jai Balaji Trading Company, etc. 11- In addition to the above, it is observed from the submission advanced by the notices, that except for NEFM none of the other Notices was registered with any mandi for Mentha Oil and majority of them have appointed Jai Balaji Trading Company as their C&F Agent for offmarket/ physical market transactions in the Mentha Oil. Incidentally, the proprietor of this C&F agent is the father of Yash Guptaa, A Group 'A' entity in the interim order. The above facts submitted by the Notices raises further suspicion that the trades executed by these entities through the said C&F agent appears to have been executed at the behest of or under instructions from NEFM. While perusing the submissions of NEFM and of other Notices, I notice certain glaring inconsistencies in the stands taken by them which need to be highlighted here. AS an illustration, I note that NEFM has initially in its reply had admitted that it had procured stock of Mentha Oil from ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... provisions of Section 108(1), the Revisional Authority may (i) on his own motion, or (ii) upon information received by him, or (iii) on request from the Commissioner of Central/ State Tax, or (iv) in consequence of an observation by the Comptroller and Auditor General of India call for and examine the record of any proceedings and if he considers that any decision or order passed by any officer subordinate to him is erroneous in so far as it is prejudicial to the interest of revenue and is (i) illegal or (ii) improper or (iii) has not taken into account certain material facts, whether available at the time of issuance of the said order or not he may, if necessary, stay the operation of such decision or order for such period as he deems fir and pass and order (i) enhancing or (ii) modifying or (iii) annulling the said decision or order. 2. However, the power of the Revisional Authority as above is subject to the restrictions imposed in terms of sub-section (1) and (2) of Section 108 which is summarized in the following table: Power of a Revisional A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aw validly made. They do not supplant the law but supplement it. (Also see: Income Tax Officer & Ors. Vs. M/s Madnani Engineering Works Ltd., Calcutta (1979) 2 SCC 455). 48. In Swadeshi Cotton Mills Vs. Union of India AIR 1981 SC 818, R.S. Sarkaria, J., speaking for the majority in a three-Judge Bench, lucidly explained the meaning and scope of the concept of "natural justice". Referring to several decisions, his Lordship observed as under:- "Rules of natural justice are not embodied rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules. But there are two fundamental maxims of natural justice viz. (i) audi alteram partem and (ii) nemo judex in re sua. The audi alteram partem rule has many facets, two of them being (a) notice of the case to be met; and (b) opportunity to explain. This rule cannot be sacrificed at the altar of administrative convenience or celerity. The general principle as distinguished from an absolute rule of uniform application seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e that may be adopted by a judicial, quasi- judicial and administrative authority while making an order affecting those rights. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order, which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil 'liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life. 51. In Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nment of an immovable property agreed to be sold on an agreement to sell, an opportunity of being heard before such an order could be passed should be given or not. Relying on the decision of this Court in Union of India Vs. Col. J.N. Sinha [1971] 1 SCR 791 and Olga Tellis (supra) it was held that: "Although Chapter XX-C does not contain any express provision for the affected parties being given an opportunity to be heard before an order for purchase is made under Section 269-UD, not to read the requirement of such an opportunity would be to give too literal and strict an interpretation to the provisions of Chapter XX-C and in the words of Judge Learned Hand of the United States of America "to make a fortress out of the dictionary." Again, there is no express provision in Chapter XX-C barring the giving of a show cause notice or reasonable opportunity to show cause nor is there anything in the language of Chapter XX-C which could lead to such an implication. The observance of principles of natural justice is the pragmatic requirement of fair play in action. In our view, therefore, the requirement of an opportunity to show cause being given before an order for purchase by t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....esai v. The Testeels Ltd. & Anr. (') But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him con firming the demand for differential duty. This was in plain disregard of the requirement of law. The Collector in revision did give some sort of reason but it was hardly satisfactory. He did not deal in his order with the arguments advanced by the appellants in their representation dated 8th December, 1961 which were repeated in the subsequent representation dated 4th June, 1965. It is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a court of law. But the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants has been properly considered by him. If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d within limitation irrespective of the fact that notice to the assessee to show cause against the proposed setting aside of the order of the first appellate authority was issued on a later date. Relevant portion of the judgment is quoted hereinafter:- "5. To complete the chronology of events, it may be noted that the order of the First Appellate Authority was dated 28.3.1992, the order calling for the records by the Additional Commissioner was around 16.3.1996, the decision, on the question of error in the order of the First Appellate Authority and the loss to the revenue consequent thereto, was dated 16.3.1996, the show cause notice was dated 20.5.1996 and the same was received by the assessee on 24.5.1996. The order ultimately passed by the Additional Commissioner under Section 15(1) was of 14/15.10.1996. Therefore, according to the assessee, mere calling for the records for examination around 16.3.1996 did not amount to exercise of power within the meaning of Section 15(4) of the said 1979 Act and if that be the case then, according to the assessee, issuance of the show cause notice on 20.5.1996 was beyond the prescribed period of 4 years from the date of the order pas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r enhancing or modifying the assessment, or cancelling the assessment or directing a fresh assessment. (2) The Additional Commissioner may on his own motion call for and examine the record of any proceedings under the Act, and if he considers that any order passed therein by a Joint Commissioner, or an appellate authority of the rank of a Deputy Commissioner is erroneous in so far as it is prejudicial to the interests of revenue, he may, if necessary, stay the operation of such order for such period as he deems fit and after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment or cancelling the assessment or directing a fresh assessment. (3) The Joint Commissioner may on his own motion call for and examine the record of proceeding under this Act, and if he considers that any order passed therein by any officer who is not above the rank of Deputy Commissioner is erroneous in so far as it is prejudicial to the interests of revenue, he may, after giving the assessee an opport....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f this suo motu powers were two fold, namely, error in the order passed by an officer subordinate to the revisional authority and prejudice to the interest of revenue. Once these two conditions stood fulfilled, the revisional authority was authorized to give an opportunity to the assessee of being heard and after making such inquiry as he thought fit he could pass appropriate orders as the circumstances of the case would justify. This power was essentially a supervisory power. However, in order to ascertain whether the officer subordinate to him had passed an erroneous order, which was also prejudicial to revenue, the Commissioner including the Additional Commissioner etc. was required to call for and examine the record of such proceedings. Therefore, the revisional authority had to call for the records, he had to examine such records, he had to be satisfied regarding fulfilment of the above two conditions and thereafter give opportunity to the assessee of being heard and on making appropriate inquiry the revisional authority was empowered to pass appropriate orders. 9. It is important to note that under Section 15(1) there was no provision for giving a show cause notice a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1997 had to be disposed of within four years from the date of commencement of the (Amendment) Act, 1997. 11. In our view, Section 15-B indicated the dichotomy between initiation of proceedings and completion of proceedings. The legislative intent was clear. It demarcated two aspects, namely, commencement of proceedings and completion of proceedings (outer limit). Section 15(4) prescribed limitation for commencement of proceedings whereas Section 15-B prescribed limitation for completion of the proceedings. We are required to keep in mind that the Legislature intended maximum leeway in cases where an error resulted in loss to revenue. In the circumstances, we are of the view that under the scheme of the 1979 Act, the initiation proceedings took place when the revisional authority called for the records of the case from the First Appellate Authority and, therefore, the jurisdiction stood exercised within the period of limitation. 12. Lastly, we may state that on 1.4.1997 in the present case the tax appeal against the order of the Revisional Authority was pending decision vide Tax Appeal No. E.T. 22/96. Moreover, the law of limitation is generally procedural, hence, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....led for by the office of respondent no.3 nor the same were ever dispatched by the office of the Appellate Authority to the office of the respondent no.3. As such, the respondent no.3 has assumed the jurisdiction under Section 108 without calling for and examining the record of the aforesaid Appeal filed by the petitioner company. The respondent no.3 has assumed the jurisdiction under Section 108 merely on the basis of letter sent by the respondent no.4. The powers, as conferred under Rule 86A, could not have been exercised merely on the ground that an inquiry has been initiated as there is a suspicion that the transactions were sham. 58. While forwarding the noting dated 24.3.2021, the Joint Commissioner (GST), Commercial Tax Headquarters, U.P. had submitted in para-5 that the department has two options either to prefer the writ petition before Hon'ble High Court and press for stay of the order passed by the Appellate Authority or under the revisional authority under Section 108 the appellate order is to be reviewed and till the finalization of proceeding of revision, the appellate order may be stayed. In para-7 of the said communication, it has also been averred that till d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd. The intent of the legislature to accord such power under the revision with a rider is to ensure that there may not be errors in the order passed by the officer subordinate to the revisional authority and the order may not be prejudicial to the interest of revenue. On the above parameters there is hardly any scope for taking another view. Admittedly, the order impugned has been passed in absence of record and the revenue authority has proceeded to endorse on the dotted line, which has been submitted by the subordinate officer. Even though, the appellate order was appealable, which clearly reflects that said action is contrary to the procedures contained therein. The order must be supported by reasons but unfortunately the revisional authority/Commissioner did not choose to give reasons in support of order passed by him. This was in plain disregard to the requirement of law. The said order does not satisfy the requirement of law. Therefore, the said action cannot be accepted. 62. For the reasons above, the impugned order dated 26.3.2021 cannot sustain and accordingly, the same is set aside. 63. Consequently, the writ petition stands allowed. 64. Let original record be re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....¤¿ नगर, चनà¥à¤¦à¥Œà¤²à¥€ की अपील संखà¥à¤¯à¤¾ जी. à¤à¤¸. टी. - 95 / 20 / वरà¥à¤· 2019-20 उतà¥à¤¤à¤° पà¥à¤°à¤¦à¥‡à¤¶ वसà¥à¤¤à¥ à¤à¤µà¤‚ सेवा कर नियमावली के नियम 86ठके अनà¥à¤¤à¤°à¥à¤—त वà¥à¤¯à¤¾à¤ªà¤¾à¤°à¥€ दà¥à¤µà¤¾à¤°à¤¾ योजित वाद का दिनांक 10.03.2021 को निसà¥à¤¤à¤¾à¤°à¤£ करते हà¥à¤ रू० 4771007.00 की à¤à¤¸.जी. à¤à¤¸. टी व रू0 4771007.00 की सी०जी.à¤à¤¸.टी कà¥à¤² रू0 9511774.00 की आई.टी.सà¥....
X X X X Extracts X X X X
X X X X Extracts X X X X
....¤¦à¤¿à¤¨à¤¾à¤‚क 10.03.2021 के कà¥à¤°à¤¿à¤¯à¤¾à¤¨à¥à¤µà¤¯à¤¨ को सà¥à¤¥à¤—ित कराने की संसà¥à¤¤à¥à¤¤à¤¿ à¤à¥€ की गयी है। 2. नॉरà¥à¤¥ à¤à¤£à¥à¤¡ फूड à¤à¤µà¤‚ सोहन लाल नेटवरà¥à¤• से समà¥à¤¬à¤‚धित पà¥à¤°à¤•à¤°à¤£ में अब तक कृत कारà¥à¤¯à¤µà¤¾à¤¹à¥€ का संकà¥à¤·à¤¿à¤ªà¥à¤¤ विवरण निमà¥à¤¨à¤µà¤¤à¥ है- . • नेटवरà¥à¤• से समà¥à¤¬à¤‚धित डाटा विशà¥à¤²à¥‡à¤·à¤£ à¤à¤µà¤‚ फीलà¥à¤¡....
X X X X Extracts X X X X
X X X X Extracts X X X X
....¤•à¤¾à¤¶ में । • वà¥à¤¯à¤¾à¤ªà¤¾à¤°à¥€ दà¥à¤µà¤¾à¤°à¤¾ जारी इनवाईसेज के लाà¤à¤¾à¤°à¥à¤¥à¥€ वà¥à¤¯à¤¾à¤ªà¤¾à¤°à¤¿à¤¯à¥‹à¤‚ की य० 10 करोड़ की आई०टी०सी० बà¥à¤²à¥‰à¤• | • माल के अà¤à¤¿à¤—à¥à¤°à¤¹à¤£ के विरूदà¥à¤§ मा० उचà¥à¤š नà¥à¤¯à¤¾à¤¯à¤¾à¤²à¤¯ में दायर वà¥à¤¯à¤¾à¤ªà¤¾à¤°à¥€ रिट याचिका पर विà¤à¤¾à¤— की सबल पैरवी के कारण वà¥à¤¯à¤¾à¤ªà¤¾à¤°à¥€ को राहत नही ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....¿à¤¨à¤¾à¤‚क 06.12.2019 (पà¥à¤°à¤¤à¤¿ संलगà¥à¤¨ पृषà¥à¤ सं0 11 पà¥à¤°à¤¸à¥à¤¤à¤° सं0 11 ) के निमà¥à¤¨ अंश उलà¥à¤²à¥‡à¤–नीय हैं- Document 3 3. पà¥à¤°à¤¶à¥à¤¨à¤—त नेटवरà¥à¤• में beneficiary के रूप में शामिल 26 पंजीकृत वà¥à¤¯à¤¾à¤ªà¤¾à¤°à¤¿à¤¯à¥‹à¤‚ दà¥à¤µà¤¾à¤°à¤¾ Fraudulently कà¥à¤²à¥‡à¤® की 37.80 करोड आई.टी.सी. बà¥à¤²à¥‰à¤• किया जाना अपेकà¥à¤·à¤¿à¤¤ था। किनà¥à¤¤à¥ समà¥à¤¬à¤‚धित वà¥à¤¯à¤¾à¤ªà¤¾à¤°à¤¿à....
X X X X Extracts X X X X
X X X X Extracts X X X X
....šà¤¾à¤°à¤¾à¤§à¥€à¤¨ है । 4.1 जी.à¤à¤¸.टी.à¤à¤¨. की रिपोरà¥à¤Ÿ के अनà¥à¤¸à¤¾à¤° उतà¥à¤¤à¤° पà¥à¤°à¤¦à¥‡à¤¶ राजà¥à¤¯ में केनà¥à¤¦à¥à¤° à¤à¤µà¤‚ राजà¥à¤¯ दà¥à¤µà¤¾à¤°à¤¾ कà¥à¤² 3739 मामलों में रू0 2859735606891.00 आई.टी.सी. बà¥à¤²à¥‰à¤• की गयी है। पà¥à¤°à¤¸à¥à¤¤à¤° सं0 3, 4 à¤à¤µà¤‚ 41 में अंकित तथà¥à¤¯à¥‹à¤‚ / ऑकडों से यह सà¥à¤ªà¤·à¥à¤Ÿ है कि, यह पà¥à¤°à¤•à¤°à¤£ राजसà¥à¤µ की दृषà¥à¤Ÿà¤¿....
X X X X Extracts X X X X
X X X X Extracts X X X X
....¤¨à¤¾ तथा पà¥à¤¨à¤°à¥€à¤•à¥à¤·à¤£ की पà¥à¤°à¤•à¥à¤°à¤¿à¤¯à¤¾ पूरी होन तक अपीलीय आदेश का कियानà¥à¤µà¤¯à¤¨ सà¥à¤¥à¤—ित किया जाना । 6. समसंदरà¥à¤ में यह तथà¥à¤¯ à¤à¥€ संजà¥à¤žà¤¾à¤¨ में लाना है कि अधिनियम की धारा 109 के अनà¥à¤¤à¤°à¥à¤—त जी.à¤à¤¸.टी. अपीलेट टà¥à¤°à¤¿à¤¬à¥à¤¯à¥‚नल का गठन अà¤à¥€ नही हà¥à¤† है। जी. à¤à¤¸. टी अपीलेà¤....
X X X X Extracts X X X X
X X X X Extracts X X X X
....£à¤¿à¤œà¥à¤¯ कर मà¥à¤–à¥à¤¯à¤¾à¤²à¤¯, लखनऊ à¤à¤¡à¥€à¥¦à¤•à¤®à¤¿à¥¦ (जी.à¤à¤¸.टी) ह० ( संजय कà¥à¤®à¤¾à¤° पाठक ) जà¥à¤µà¤¾à¤‡à¤¨à¥à¤Ÿ कमिशà¥à¤¨à¤° (जी.à¤à¤¸.टी) वाणिजà¥à¤¯ कर मà¥à¤–à¥à¤¯à¤¾à¤²à¤¯, उ०पà¥à¤°à¥¦ लखनऊ वरिषà¥à¤ विà¤à¤¾à¤—ीय अधिकारियों से विचार विमरà¥à¤¶ के उपरानà¥à¤¤ पà¥à¤°à¤¸à¥à¤¤à¤° सं0 5 (ii) पर अंकित विकलà¥à¤ª औचितà¥à¤¯à¤ªà¥‚रà¥à¤£ पà¥à¤°à¤¤à¥€à¤¤ हà¥....
X X X X Extracts X X X X
X X X X Extracts X X X X
....¤°à¤¥à¤® वाणिजà¥à¤¯ कर, मà¥à¤°à¤¾à¤¦à¤¾à¤¬à¤¾à¤¦ दà¥à¤µà¤¾à¤°à¤¾ अपील संखà¥à¤¯à¤¾ जी.à¤à¤¸.टी. - 95 / 20 / वरà¥à¤· 2019-20 दिनांक 10.03.2021 में पारित अपीलीय आदेश संखà¥à¤¯à¤¾ 194 दिनांक 10.03.2021 तथा अधिनियम की धारा 161 के अनà¥à¤¤à¤°à¥à¤—त पारित आदेश संखà¥à¤¯à¤¾ 203 / 10.03. 2021 का कà¥à¤°à¤¿à¤¯à¤¾à¤¨à¥à¤µà¤¯à¤¨ ततà¥à¤•à¤¾à¤² पà¥à¤°à¤à¤¾à¤µ से पà¥à¤¨à¤°à¥€à¤•à¥à¤·à¤£ पà¥à¤°à¤•à¥à¤°à¤¿à¤¯à¤¾ पूरà¥à¤£ à¤....