TaxTMI 
TaxTMI 
TaxTMI 
2024 (3) TMI 1216
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....titioner in W.P.Nos.30607, 30613, 30615 of 2019, 4922, 8495, 8496 of 2020, 12795, 12797 & 16324 of 2021 : Mr.T.Ramesh For Petitioner in W.P.Nos.3011, 3013, 3026, 3028 of 2020, 2861, 2863, 2865, 11004, 11006, 11008 of 2021, 4490 & 26586 of 2022 : Mr.T.Ramesh for Mr.J.Shankaraman For Petitioner in W.P.No.11319 of 2020 : Mr.Adithya Reddy For Petitioner in W.P.No.2723 of 2021 : Mr.S.Nirmal Aditya For Petitioner in W.P.Nos.18575 of 2022 & 12014 of 2023 : Mr.S.Raveekumar For Petitioner in W.P.No.22552 of 2022 : Mr.R.N.Amarnath For Petitioner in W.P.No.31013 of 2022 : Mr.K.Vaitheeswaran For Respondents in W.P.No.34792 of 2019 : Mr.Venkatasamy Babu Senior Panel Counsel For R3 & R6 in W.P.No.34792 of 2019 For R8 in W.P.No.29878 of 2019 For Respondent in W.P.Nos.30607, 30613, 30615 of 2019, 3011, 3013, 3026, 3028, 4922, 8495, 8496 of 2020, 2861, 2863, 2865, 11004, 11006, 11008, 12795, 12797& 16324 of 2021 For R3 in W.P.No.2723 of 2021 For R3 & R4 in W.P.No.18575 of 2022 For R3 in W.P.No.22552 of 2022 For R3 in W.P.No.26586 of 2022 For R1 in W.P.No.31013 of 2022For R3 & R4 in W.P.No.12014 of 2023. : Mr.Haja Nazirudden Additional Advocate General I for Mr.M.Venkateswaran, Special Gover....
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.... 26586 of 2022 M/s.New Pandian Travels Pvt.Ltd Show Cause Notice issued under Rule 142(1) of the CGST Rules, 2017 05.08.2022 8. 4490 of 2022 M/s.S.S.M. Processing Mills Limited Assessment Order under Section 73 of the CGST Act, 2017 07.10.2021 9. 12014 of 2023 M/s. Sunrise Enterprises Assessment Order demanding ITC fraudulently availed under Section 74(1) of respective GST Acts and Demand of Interest under Section 50 of GST Acts 17.02.2023 4. In the above mentioned writ petitions, the petitioners have challenged the impugned proceedings of the respondents namely the Central Authorities. Therefore, the petitioners have challenged the impugned proceedings of the respondents namely the Central Authorities on the ground they are without Jurisdiction. 5. Following Writ Petitions have been filed by the petitioners who have been assigned to the Central Authorities. Proceedings have been initiated by the State Authorities. Details of the respective Writ Petitions are as under:- Sl.No. W.P.No. Petitioner's name Challenge of the notice/ summons or assessment order Date of the notice/summons or assessment order 1. 30607 of 2019 M/s. Sri Varahiamman Steels Privat....
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....s namely the State Authorities. 7. The dispute in these Writ Petitions have arisen on account of the fact that the respective petitioners who have been assigned either to the State Authorities or to the Central Authorities for administrative purposes under the provisions of the respective GST Enactments namely, the CGST Act, 2017, TNGST Act, 2017 and IGST Act, 2017 are/were being subjected proceedings by their counterpart. 8. Submissions of the petitioners are that in the absence of a proper Notification under Section 6 of the respective GST Enactments for cross-empowerment, the impugned proceedings by the respective counterparts were without jurisdiction. 9. The CGST Act, 2017, GST Act, 2017 of the respective States, Integrated GST Act, 2017, UTGST Act, 2017, GST (Composition to States) Act, 2017 came into force on 01.07.2017. 10. The Integrated Goods and Services Tax Act, (Extension to Jammu & Kashmir) Act (Act 27 of 2017) was passed on 23.08.2017 with retrospective effect from 08.07.2017. 11. These enactments were enacted in the light of Constitution [101 Amendments (Act 2016)] which introduced a slew of amendments to the Constitution of India Constitution [101 Amendments (....
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....date on which the goods and services tax be levied on petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas and aviation turbine fuel. 6) While discharging the functions conferred by this article, the Goods and Services Tax Council shall be guided by the need for a harmonised structure of goods and services tax and for the development of a harmonised national market for goods and services. 7) One-half of the total number of Members of the Goods and Services Tax Council shall constitute the quorum at its meetings. 8) The Goods and Services Tax Council shall determine the procedure in the performance of its functions. 9) Every decision of the Goods and Services Tax Council shall be taken at a meeting, by a majority of not less than three-fourths of the weighted votes of the members present and voting, in accordance with the following principles, namely:- (a) the vote of the Central Government shall have a weightage of one-third of the total votes cast, and (b) the votes of all the State Governments taken together shall have a weightage of two-thirds of the total votes cast, in that meeting. 10) No act or proceedings of the Goods and Se....
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....ing and could also take into account the geographical location and type of the taxpayers, as may be mutually agreed; v. The new registrants shall be initially divided one each between the Central and the State tax administration and at the end of the year, once the turnover of such new registrants was ascertained, those units with turnover below Rs. 1.5 crore shall be divided in the ratio of 90% for the State tax administration and 10% for the Central tax administration and those units above the turnover of Rs. l.5 crore shall be divided in the ratio of 50% each for the State and the Central tax administration; vi. The division of the taxpayers may be switched between the Centre and the States at such interval as may be decided by the Council; vii. The above arrangement shall be reviewed by the Council from time to time; viii . Both the Central and the State tax administrations shall have the power to take intelligence-based enforcement action in respect of the entire value chain; ix. Powers under the IGST Act shall be cross-empowered to the State tax administration on the same basis as under the CGST and the SGST Acts either under law or under Article 258 of the Constitu....
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....he division of taxpayer base between the Centre and the States to ensure single interface: i. Of the total number of taxpayers below Rs. 1.5 crore turnover, all administrative control over 90% of the taxpayers shall vest with the State tax administration and 10% with the Central tax administration; ii. In respect of the total number of taxpayers above Rs. 1.5 crore turnover, all administrative control shall be divided equally in the ratio of 50% each for the Central and the State tax administration; iii. The division of taxpayers in each State shall be done by computer at the State level based on stratified random sampling and could also take into account the geographical location and type of the taxpayers, as may be mutually agreed; 2. Further, the broad guidelines for the purposes of computation of "Turnover as approved by the GST Implementation Committee in its meeting held on 31 August and 1 September, 2017 and subsequently by the GST Council in its 21st Meeting held on 9 September 2017 are as follows:- i. For taxpayers registered only under VAT, the total annual State turnover under VAT (including inter-State sales, exports and exempt goods) shall be taken as the bas....
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....T Enactments of 2017 and IGST Act, 2017. Agenda No.9 of the 22nd Meeting held on 06.10.2017 captures the deliberations. It is extracted below:- "Agenda item 9: Proposal for issuing notifications on cross-empowerment for ensuring single interface under GST 35. The Commissioner (GST Policy), CBEC stated that it was proposed to issue notification on cross-empowerment prepared in accordance with the decisions of the Council taken during its 9th Meeting (held on 16 January 2017) and 21st Meeting (held on 9 September 2017). He stated that while there was a broad agreement for cross-empowerment under the CGST and SGST Acts, there was disagreement on the issue of cross-empowerment under the IGST Act in relation to the Place of Supply Rules. The Secretary stated that notification of cross-empowerment was urgently required to enable refund to the taxpayers and this notification could be issued. He added that due to persistent differences on cross empowerment for the Place of Supply Rules issues under IGST, notification regarding cross empowerment in respect of other matters could be deferred. He stated that by cross empowering States and Central tax officers for giving refund, it would b....
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....ntemplates power of the Central Government and the State Government to issue notifications on the recommendations of the GST Councils to empower the Officers of the State Tax Officer or Union Territory Officer to issue Notifications under Section 6 of the CGST Act, 2017 the Central Tax Officers to be the "proper officer" under the respective GST Enactments. 21. Thus, the Central Government issued Notification No.39/2017- Central Tax on 13.10.2017. This Notification was later modified by Notification No.10/2018-CT dated 23.01.2018. 22. By this amending Notification No.10/2018-CT dated 23.01.2018, the words "except rule 96" was substituted with except sub rules (1) to (8) and sub rule (10) of rule 96". 23. Text of Notification No.39/2017-Central Tax dated 13.10.2017 and amending Notification No.10/2018 dated 23.01.2018 are reproduced below:- Notification No.39/2017-Central Tax Notification No.10/2018-Central Tax Notification No. 39/2017 - Central Tax New Delhi, the 13th October, 2017 G.S.R....(E).- In exercise of the powers conferred by sub-section (1) of section 6 of the Central Goods and Services Tax Act, 2017 (12 of 2017) (hereafter in this notification referred to as the "....
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....which was circulated during September, 2017 immediately after the GST Enactments came into force with effect from 01.07.2017 have not been notified either under the CGST Act, 2017 or under the SGST Act, 2017. 26. These Notifications remain as draft Notifications till date. They have not been notified. Text of the Draft Notifications that fell for deliberation during the 22nd GST Council Meeting held on 06.10.2017 are reproduced below:- "Notification No..... /2017 -State Tax ......., the .... September, 2017 G.S.R....(E).-In exercise of the powers conferred by sub-section (1) of section 6 of the Goods and Services Tax Act, 2017 ( --- of 2017) (hereinafter referred to as "GST Act"), and on the recommendations of the Council, the Government of ..........hereby specifies that the officers appointed under the Central Goods and Services Tax Act, 2017 (12 of 2017) (hereinafter referred to as the "CGST Act")who are authorized to be the proper officers for the purposes of the CGST Act (hereinafter referred to as "the said officers")by the Commissioner in the Board, shall perform all or any of the duties and functions assigned to them, from time to time, as detailed in column (B) of the....
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.... time. Explanation 2: With respect to Sl. No. 2,3 & 4 of the said Schedule, information regarding intimation of proceedings in the format specified below should be furnished by the Commissioner to the jurisdictional Commissioner of the Central Goods and Services Tax Act on the common portal or manually with due acknowledgment till such time the facility for uploading the said information is not available on the common portal. Format for intimation of proceedings Serial No. GSTIN No. Date of initiation of proceedings Subject matter under investigation Period under investigation (1) (2) (3) (4) (5) 2. This notification shall come in force with effect from --- [To be published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i)] Government of India Ministry of Finance Department of Revenue Central Board of Excise and Customs Notification No..... /2017 -Integrated Tax New Delhi, the .... September, 2017 G.S.R....(E).-In exercise of the powers conferred by section 4 of the Integrated Goods and Services Tax Act, 2017 (13 of 2017) (hereinafter referred to as the "IGST Act"), on the recommendations of ....
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....t for intimation of such proceedings. 3. Detention, seizure and release of goods and conveyances in transit under section 129 of the Central Goods and Services Tax Act, 2017 or of confiscation of goods or conveyances and levy of penalty under section 130 of the Central Goods and Services Tax Act, 2017 made applicable to the integrated tax vide section 20 of the IGST Act, against any person and all consequential or incidental proceedings including appeal arising from such proceedings. No such proceedings have been initiated in respect of the said goods by the proper officer of the central tax. 4. All proceedings against a supplier or recipient of goods or services or both, who has remained unregistered, although liable to be registered. No such proceedings have been initiated in respect of such person by the proper officer of the central tax. 5. Any proceedings arising out of Chapter XX of the Central Goods and Services Tax Act, 2017 made applicable to the integrated tax vide section 20 of the IGST Act. Except the issues related to or arising out of transitional provisions of the Central Goods and Services Tax Act, 2017. Explanation 1: Assignment of registered perso....
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....td., Vs. Union of India, Manu/GJ/1470/2021; vii. Kuppan Gounder P.G.Natarajan Vs. Directorate General of GST Intelligence, New Delhi, 2022 (58) G.S.T.L. 292 (Mad.); viii. Ambika Food Industries Pvt. Ltd., Vs. Union of India Rep. by its Secretary, Ministry of Finance Department of Revenue, 2021 SCC Online TS 3390; ix. Ajay Verma Vs. Union of India and Ors., Manu/UP/1822/2022; x. M/s.VGN Projects Estates Private Limited Vs. Assistant Commissioner (State Taxes) and another in W.P.No.2391 of 2023 and xi. Tvl Metal Trade Incorporation Vs. The Special Secretary and others in W.P.No.3033 of 2023. 30. I have considered the arguments advanced by the learned counsel for the petitioner and the respondent. 31. The Model Law which were in circulation before the respective Central GST Bill and the State GST Bill and Union Territory GST Bill were introduced in the Parliament and in the respective State Legislatures of the country are in slight variance. 32. The scheme of enactments as mentioned above makes it clear that the assessees whether assigned to the Central Tax Authorities or the State Tax Authorities as the case may be are required to file only one set of Return under Chapte....
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.... 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." 38. Thus, the Input Tax Credit availed under the provisions of the Central GST Act, 2017 can be used for payment of Output Tax under the said Act or under the IGST Act, in such manner as may be and subject to such conditions as may be prescribed. 39. Similarly, the Input Tax Credit availed under the provisions of TNGST Act, 2017 can be utilised only for payment of Output Tax under the provisions of said IGST Act, 2017 in such manner and subject to such conditions and within such time as may be prescribed under the Rules. 40. However, powers of assessment has been vested with the proper officers to whom the assessee have assigned by virtue of Circular No.01/2017-GST (council) dated 20.09.2017 bearing reference: F.No.199/ Cross-Empowerment/GSTC/2017. 41. As per Section 49A of the CGST Act, 2017, Input Tax Credit availed on account of Central Tax, State Tax or Union Territory Tax can be utilized towards payment of Integrated Tax, Central Tax,....
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....y be utilised towards the payment of central tax and State tax or Union territory tax, as the case may be, in any order. Provided that the input tax credit on account of central tax, State tax or Union territory tax shall be utilised towards payment of integrated tax, central tax, State tax or Union territory tax, as the case may be, only after the input tax credit available on account of integrated tax has first been utilised fully. 47. As per Rule 49A of the TNGST Rules, 2017, a bill of supply referred to in clause (c) of sub-section (3) of section 31 shall be issued by the supplier containing the following details, namely:- (a) name, address and Goods and Services Tax Identification Number of the supplier; (b) a consecutive serial number not exceeding sixteen characters, in one or multiple series, containing alphabets or numerals or special characters -hyphen or dash and slash symbolised as "-" and "/" respectively, and any combination thereof, unique for a financial year; (c) date of its issue; (d) name, address and Goods and Services Tax Identification Number or Unique Identity Number, if registered, of the recipient; (e) Harmonised System of Nomenclature Code for g....
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.... may deem fit: Provided that, the officers appointed under the Tamil Nadu Value Added Tax Act, 2006 shall be deemed to be the officers appointed under the provisions of this Act. 49. Apart from the officers mentioned above under Section 4(1) of the respective Central GST Act, 2017 and TNGST Act, 2017, the Board (the Central Board of Indirect Taxes and Customs [CBIC]) as defined in Section 2(16) of the CGST Act, 2017 and the Government as defined in Section 2(53) of TNGST Act, 2017, can appoint such officers as they may deem fit to be the officers under these GST Enactments. 50. Without prejudice to the provisions of sub-section (1) to Section 4, the Board under Section 4(2) of the CGST Act, 2017 may, by an order, authorize any officer referred to in clauses (a) to (h) of section 3 to appoint any officers of the Central Tax below the rank of Assistant Commissioner of Central Tax to be the Central Tax Officer for the administration of the CGST Act, 2017. 51. Thus, the Board can authorize any officer referred to in clauses (a) to (h) of Section 3 of CGST Act, 2017 to appoint any officers of the Central Tax below the rank of Assistant Commissioner of Central Tax to be the Central T....
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....ay, by order, authorise any officer referred to in clauses (a) to (h) of section 3 to appoint officers of central tax below the rank of Assistant Commissioner of Central Tax for the administration of this Act. 5. Appointment of officers under the Central Goods and Services Tax Act 1) The Board may appoint such persons as it may think fit to be officers under the Central Goods and Services Tax Act 2) Without prejudice to the provisions of sub-section (1), the Board may authorize a Principal Chief Commissioner/Chief Commissioner of Central Goods and Services Tax or a Principal Commissioner /Commissioner of Central Goods and Services Tax or an Additional/Joint or Deputy/Assistant Commissioner of Central Goods and Service Tax to appoint officers of Central Goods and Services Tax below the rank of Assistant Commissioner of Central Goods and Services Tax. Section 4 of the Tamil Nadu Goods and Services Tax Act, 2017 Section 5 of the Model State Goods and Services Tax, 2017 4. Appointment of officers:- 1) The Government may, in addition to the officers as may be notified under section 3, appoint such persons as it may think fit to be the officers under this Act. 2) The Commis....
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....ns and limitations as the Commissioner may impose, an officer of State Tax may exercise the powers and discharge the duties conferred or imposed on him under this Act. 2) An officer of State tax may exercise the powers and discharge the duties conferred or imposed under this Act on any other officer of State tax who is subordinate to him. 3) The Commissioner may, subject to such conditions and limitations as may be specified in this behalf by him, delegate his powers to any other officer who is subordinate to him 4) Notwithstanding anything contained in this section, an Appellate Authority shall not exercise the powers and discharge the duties conferred or imposed on any other officer of State tax. 58. For the sake of clarity Section 6 of the respective Model GST Laws are reproduced below:- Section 6 of the Model Central Goods and Services Tax, 2017 Section 6 of the Model State Goods and Services Tax, 2017 6. Powers of officers under the Central Goods and Services Tax Act :- 1) Subject to such conditions and limitations as the Board may impose, an officer of the Central Goods and Services Tax may exercise the powers and discharge the duties conferred or imposed on him ....
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....cers appointed under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act are authorised to be the proper officers for the purposes of this Act, subject to such conditions as the Government shall, on the recommendations of the Council, by notification, specify. (2) Subject to the conditions specified in the notification issued under sub-section (1),-- (a) where any proper officer issues an order under this Act, he shall also issue an order under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, as authorised by the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, as the case may be, under intimation to the jurisdictional officer of State tax or Union territory tax; (b) where a proper officer under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act has initiated any proceedings on a subject matter, no proceedings shall be initiated by the proper officer under this Act on the same subject matter. (3) Any proceedings for rectification, appeal and revision, wherever applicable, of any order passed by an officer appointed under this Act s....
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....T Act has initiated a proceeding on a subject matter under any one or more sections (.........) of this Act, no action under the relevant section shall be initiated under this Act on the same subject matter. Section 7 of the Model State Goods and Services Tax, 2017 7. Powers of SGST/CGST officers under the Act The officers appointed under the SGST Act shall, to such extent and subject to such conditions, as may be prescribed in the rules made in this behalf, be the proper officers for the purposes of sections (......) of this Act. 61. Thus, Section 6(1) of the respective GST Enactments empowers Government to issue notification on the recommendation of GST Council for cross-empowerment. However, no notification has been issued except under Section 6(1) of the respective GST Enactments for the purpose of refund although officers from the Central GST and State GST are proper officers under the respective GST Enactments. 62. Since, no notifications have been issued for cross-empowerment with advise of GST Council, except for the purpose of refund of tax under Chapter-XI of the respective GST Enactments r/w Chapter X of the respective GST Rules, impugned proceedings are to be hel....