Top 100

Judgments
under GST Relevant judgments issued in 2023
presented in a one-liner format along
in 2023 with easy to read summary
 COMPILED BY

CA Ravi Kumar Somani Adv. Tejal Kumar Patil

Partner, Assistant Manager,
H N A & Co. LLP H N A & Co. LLP
Legal Update

Benefit of New Cause of

Actions in Writ Petition

Writ Petition once withdrawn due

to alternate remedy can be again
entertained if a new cause of
action arises.

M/s Mehta Enterprise Vs State of

Gujarat 2023 (1) TMI 234- Gujarat
HC
Legal Update

Multiple refund applications

within same GSTIN not
allowed

Refund claim under GST is to be

filed based on number of GST
registrations and not based on
number of units/plants within the
same GST number.

M/s Vedanta Ltd Vs Union of India

2023 (1) TMI 289- Orissa HC
Legal Update

Petitioner must file objection

before approaching High
Court

In case of attachment of property

prior to challenging the order,
first objection under Rule 159
(5) must be filed by the petitioner
before approaching the High
Court.

M/s Chotu Lal Prop of Wisemax

Enterprises Vs Union of India 2023
(1) TMI 289- Orissa HC
Legal Update

Petitioner allowed to make

changes in GSTR-3B

Petitioner has inadvertently

mentioned eligible ITC in the
wrong table. The said error was
entirely bonafide and a lenient
view is required to be taken.

Distinguished Apex Court decision

in the case of Bharti Airtel on
facts.

M/s Orient Traders Vs Deputy

Commissioner of CT 2023 (1) TMI
838- Karnataka HC
Legal Update

Principal of natural justice to

be followed at all levels of
adjudication

A failure of natural justice by the

lower authority cannot be cured
by sufficiency of natural
justice by the appellate authority.

Chandni Crafts Vs Union of India

2023 (1) TMI 841- Rajasthan HC
Legal Update

High Court cannot intervene

in the facts gathering stage

Show Cause notice is an

opportunity for gathering facts,
the High Court has materially
erred in entertaining the writ
petition and setting aside the same
without first gathering all the
facts.

State of Punjab Vs M/s Shiv

Enterprises 2023 (1) TMI 842-
Supreme Court
Legal Update

Tag of Risky exporter

interferes with the petitioners
right to carry on business

The court held that the risky

exporter tag cannot be
indefinitely put on a valid
exporter as it affects their right to
carry business under Article 19(1)
(g).

Global Seamless Tubes & Pies Pvt Ltd

Vs Assistant Commissioner of CGST
2023 (1) TMI 980- Calcutta HC
Legal Update

The migration of TDS amount

is allowed

The words used in Section 140(1)

of SGST Act namely, ‘credit of
amount of value added tax and
entry tax’ intended to also allow
migration of TDS amount.

Subhash Singh Choudhary Vs The

State of Jharkhand 2023 (1) TMI
1023- Jharkhand HC
Legal Update

Lack of communication
mechanism in the software
leading to obstruction in the
refund on exports with
payment of IGST

Non receipt of refund on exports

with payment of tax appears to be
a short coming of the software
itself. The court recommend to set
up direct communication between
assesee and GST portal.

Aaartos International LLP Vs Deputy

Commissioner 2023-TIOL-12-HC-
AHM-GST
Legal Update

Order cannot be beyond the

scope of show cause notice

The appellate authority while

passing order has no
jurisdiction to frame an issue
which was not alleged in the show
cause notice.

Radiant Enterprises Pvt Ltd Vs Joint

Commissioner 2023 (2) TMI 37-
Calcutta HC
Legal Update

Show cause notice not

disclosing details of violation
committed is invalid

The show cause notice sent to the

petitioner by the respondents is
bald and cryptic and the exact
details of the violations committed
have not been disclosed in the said
show cause notice.

Hind Aluminum Vs Assistant

Commissioner 2023 (2) TMI 90-
Madras HC
Legal Update

To contest the matter

petitioner must lodge protest
while making payment
against DRC-01A

Making the payment against DRC-

01A without lodging any protest
can lead to acceptance of
demand as per Rule 142 (1A).
Subsequent denial of demand after
considerable time may also not be
of any help.

Shri D Murali Mohan Patanik Vs

Secretary to Gov 2023 (2) TMI 93-
Orissa HC
Legal Update

No GST on vouchers approved

by RBI

The vouchers are semi-closed PPIs

in which the goods or services to
be redeemed are not identified at
the time of issuance and are
approved by the RBI. Hence,
vouchers are neither goods nor
services and therefore cannot be
taxed.

Premier Sales Promotion Pvt Ltd Vs

Union of India 2023 (2) TMI 130-
Orissa HC
Legal Update

Minor discrepancy would not

attract penalty

The minor discrepancy in e-

way bill by mentioning wrong
number of vehicle would not
attract penalty proceedings under
Section 129.

M/s Varun Beverages Vs State of U.P.

2023 (2) TMI 133- Allahabad HC
Legal Update

Court recorded their findings

on parallel proceeding issued
by the department

Summons was challenged

alleging that parallel
proceedings were issued by
Central & State Authorities. Court
held that petitioner must first
participate in summons issued
by the state authority and only
then it can be ascertained whether
the proceedings initiated by
authorities are parallel
proceedings.

TVL Metal Trade Incorporation Vs

Commissioner of CGST 2023 (2) TMI
361- Madras HC
Legal Update

Revenue cannot seek

unnecessary details to reject
refund

Refund provisions does not require

petitioner to establish
registration details of the vehicle
used for purchase of goods at the
time of sanctioning refund.

Mahajan Fabrics Pvt Ltd Vs

Commissioner of CGST 2023 (2) TMI
430- Delhi HC
Legal Update

Vehicle cannot be detained

due to lack of road permit

If the petitioner is in possession of

valid e-way bills, invoices & other
required documents, then road
permit should not be insisted
upon for releasing the vehicle.

M/s Tzui Forest Products Vs State of

Assam 2023 (2) TMI 431- Gauhati
HC
Legal Update

E-Way Bill cannot be escaped

by undervaluing goods

The waiving of E-Way bill for the

goods below Rs.50,000/- does not
allow the dealer to undervalue
its goods so as to escape it from
bringing to the notice of the
Government.

M/s Radha Fragrance Vs Union of

India 2023 (2) TMI 542- Allahabad
HC
Legal Update

Bail denied to the petitioner

It was alleged by the department

that petitioner’s firm was not only
non-existing but also claimed ITC
from other fake firms. Denied bail
holding that utilizing bogus ITC
through fake documents is
economic offence which have
resulted in loss to the Government
exchequer.

Amit Kaushik Vs State of Haryana

2023 (2) TMI 586- Punjab & Haryana
HC
Legal Update

GST provisions cannot be

interpreted to deny right to
trade & Commerce

In case of cancellation of
registration, period of
limitation to file appeal is not
applicable as it affects the
petitioners right to carry business
under Article 19(1) (g).

Rohit Enterprises Vs Commissioner

of State GST 2023 (2) TMI 759-
Bombay HC
Legal Update

Permission for Cancellation

of composition scheme to be
appliable retrospectively

The transfer of registration from

the composition scheme to the
regular scheme is applicable from
the date on which the petitioner
had breached the condition
stipulated in section 10 of the
CGST Act.

SKP Pharmachem Vs Union of India

2023 (2) TMI 930- Gujarat HC
Legal Update

Directed department to
refund ITC reversed

Search operation was carried out

by the team of the CGST officials.
Respondent reversed the ITC in
the electronic credit ledger. Court
directed the department to
refund ITC reversed during
search proceedings. The
department has violated interim
directions made in case of Bhumi
Associate vs. UOI.

Shree Ganesh Molasses Trading Co.

Vs Superintendent 2023 (3) TMI
157-Gujarat HC
Legal Update

GST Refund cannot be

withheld by the department

The refund claim sanctioned

cannot be withheld for the
reason that the department was
planning to challenge the same.

Mr. Brij Mohan Vs Union of India

2023 (3) TMI 327-Delhi HC
Legal Update

ITC cannot be blocked

without evidence

Input Tax Credit available in the

petitioner’s Electronic Credit
Ledger was blocked. Department
did not unblock the same after one
year. Court held the department
cannot block ITC on an
allegation that the ITC was
availed on fake invoices without
producing information about such
fake invoices.

M/s Parity Infotech Solutions Pvt Ltd

Vs Government 2023 (3) TMI 489-
Delhi HC
Legal Update

Validity of Parallel
proceedings issued by State
Tax and Central Tax
Authorities

The court directed that If the

proceedings issued by State Tax
and Central Tax Authorities on the
subject issue is one and the same
or if the subject is inter-related, it
is always better that one
authority adjudicates the
matter.

LGW Industries Ltd Vs Assistant

Commissioner 2023 (3) TMI 826-
Calcutta HC
Legal Update

Scope of Intermediary
services

The petitioner was providing

professional consultancy services
to their group companies. Court
held that scope of intermediary
involve arranging or facilitating
the supply of goods or services
from the supplier. The petitioner
does not arrange or facilitate
services to group entities from
third parties; it renders services to
them.

Ernst and Young Limited Vs

Additional Commissioner 2023 (3)
TMI 1117-Delhi HC
Legal Update

Rule 89(4)(c) restricting

value of exported goods to be
1.5 times is unconstitutional

The court held that Rule 89(4)(c)

restricting refund of export
without payment of tax to 1.5
times of value of like goods is
unconstitutional.

M/s Tonbo Imaging India Pvt Ltd Vs

Union of India 2023 (4) TMI 46-
Karnataka HC
Legal Update

Department can only attach

bank account of taxable
person

The power under Section 83 of the

Act to provisionally attach assets
or bank accounts is limited to
taxable persons and persons
specified under Section 122(1A) of
the Act. Department cannot
attach bank account of other
group entities.

Sakshi Bahl & Anr. Vs The Principal

Director 2023 (4) TMI 48-Delhi HC
Legal Update

Orders refund of
unauthorized GST payment
collected during search
proceedings

The director of petitioner was

questioned. He was forcibly taken
to their office where he was kept
detained for two days. He was
pressurized to deposit the amount
throughout the search. No
recovery of tax should be made
during search, inspection or
Investigation unless it is
voluntary.

Diwakar Enterprises Pvt Ltd Vs The

Commissioner of CGST 2023 (4) TMI
207-Punjab & Haryana HC
Legal Update

Department cannot seize

Cash

Taking recourse to Section 67(2)

of the CGST Act which authorizes
the seizure of 'things', the
department cannot seize cash as
‘cash’ cannot be said to be coming
within the purview of ‘things’.

Shabu George Vs State Tax Officer

2023 (4) TMI 252-Kerala HC
Legal Update

While passing order

adjudicating authority can
levy penalty up to 10% of tax
dues only

Levy of penalty of 100% of tax

dues reflected in the Summary of
the Order is in the teeth of the
provisions of Section 73(9) of the
Act of 2017. The said provision
provides that the Proper Officer
can levy penalty up to 10% of tax
dues only.

Vikash Kumar Singh Vs

Commissioner of State Tax 2023 (4)
TMI 402-Jharkhand HC
Legal Update

Market Research Services

Provided cannot be terms as
Intermediary

Market Research Service are

provided by the petitioner on their
own account, the petitioner cannot
be held to be an intermediary and
the place of supply would be the
place of recipient of service.

Ohmi Industries Asia Vs Assistant

Commissioner 2023 (4) TMI 425-
Delhi HC
Legal Update

Original refund application

cannot be treated non est in
case of deficiency

Second refund application filed to

remove the deficiencies in the
original application cannot be
rejected on the ground of
limitation treating the same as
fresh application. The period of
limitation must be counted from
the date of original refund
application.

Bharat Sanchar Nigam Vs Assistant

Commissioner 2023 (4) TMI 495-
Delhi HC
Legal Update

Document based upon which

the order is passed should be
supplied to the assessee

The order passed violates

principals of natural justice as
the SIB report, which is the
foundation was never supplied, no
hearing was granted to u/s 75(4)
of the Act and there is no material
to corroborate the discrepancies
as allegedly found.

Lari Almira House Vs State of UP

2023 (4) TMI 545 -Allahabad HC
Legal Update

Taxability of goods sold in

Duty Free Shops

Duty Free Shops whether in the

arrival or departure terminals,
being outside the customs frontiers
of India, cannot be saddled with
any indirect tax burden.

Commissioner of CGST Vs Flemingo

Travel Retail Ltd 2023 (4) TMI 613 -
Supreme Court
Legal Update

Input Tax Credit for

construction of Hotel for
Owner is allowed

The petitioner entered works

contract agreement with the M/s
Hotel Polo Pvt. Ltd. and
constructed a hotel at Agartala.
Credit availed by the petitioner on
above service was denied. The
petitioner did not fall within ambit
of block credit provided in Section
17 CGST Act as the petitioner was
providing work contract services
to the owner of the hotel and not
for it’s own account.

SR Constructions Vs Union of India

2023 (4) TMI 699 -Tripura HC
Legal Update

Constitutional validity of
taxability of intermediary

The petitioner challenged

constitutional validity of levy of
GST on Intermediary services. The
Division Bench rendered split
verdict and the matter was
referred to third member. Third
member upheld the constitutional
validity of Section 13 (8) (b).
(Citation 2023 (6) TMI 290)

Dharmendra Jani Vs Union of India

2023 (4) TMI 821 -Bombay HC
Legal Update

Scrutiny proceedings of
return and proceedings u/s
74 are two separate and
distinct exigencies

The department did not initiate

any action w.r.t. return submitted
by them. However, under Section
74 classification of goods was
questioned. The argument of
petitioner that unless deficiency in
return is pointed out to the
assessee, the department cannot
proceed under Section 74 of to
issue show cause notice is not as
per statutory scheme.

Naarjuna Agro Chemicals Pvt Ltd Vs

State of UP 2023 (4) TMI 1062 -
Allahabad HC
Legal Update

Directed to refund amount

collected during search along
with interest

The search was conducted at the

premises of petitioner. Director
and Chartered Accountant was
detained. They were released on
deposit of money. Court held that
the amount deposited during
search cannot be taken to be
voluntary.

Modern Insecticides Ltd Vs

Commissioner of CGST 2023 (4) TMI
1184 -Punjab & Haryana HC
Legal Update

Section 80 applies to those

who have been compliant in
payment of the admitted tax

The petitioner is not eligible for the

benefit of payment of taxes in
instalments as provided in Section
80 since the details of outward
supply was self assessed in GSTR 1
and the tax payable was due to
difference between GSTR 1 and
GSTR 3B.

K. I. International (India) Ltd Vs

Commissioner of Commercial Taxes
2023 (5) TMI 128 -Punjab & Haryana
HC
Legal Update

Permitted amendment of
GSTR-1

GSTN rejected request of

petitioner for amendment of
GSTR-1 of 2017-18 holding that
amendment can be done only on
the due date of filing of Form
GSTR-1 of March 2019. Directed
respondent to permit the
amendment of GSTR-1 Form
manually.

Abdul Mannan Khan Vs GST Council

2023 (5) TMI 287 -Calcutta HC
Legal Update

Locus Standi to file

application for advance
ruling application

The petitioner being recipient of

service is eligible to file application
for an advance ruling in terms of
section 95(c) of the CGST Act
which provides that the term
“applicant” means any person
registered under the Act.

Anmol Industries Ltd Vs Advance

Ruling Authority 2023 (5) TMI 288 -
Calcutta HC
Legal Update

Provisional attachment
cannot continue endlessly

Provisional attachment under

Section 83 cannot be deployed to
work against the assessee
continuously for several years
as has happened in the present
case. The attachment must be
released after one year as per
Section 83 (2) GST Act.

Nitesh Jain Mangal Chand Vs DGGI

2023 (5) TMI 423 -Madras HC
Legal Update

Court throws light on how

period of limitation to be
calculated

Bare reading of the provisions of

Section 107 of the Act, 2017
provides period of limitation to file
appeal is four months. The four
months may be of 121 days or 122
days, as the case may be.

Shri Ram Ply Product Vs Addl

Commissionr 2023 (5) TMI 559 -
Allahabad HC
Legal Update

Refund provisions does not

mandate signature on
documents in physical mode

Non-submission of physically
signed and scanned declarations
along with refund application may
only be an irregularity, but not
an illegality. Hence, refund must
be granted.

Medicaman Biotech Limited Vs

Union of India 2023 (5) TMI 588 -
Rajasthan HC
Legal Update

Presence of Advocate at the

time of recording statement

The court directed department to

grant permission to petitioner’s
Advocate to remain present at
the time of recording of the
petitioner’s statement at a visible,
but not at an audible distance.

Kamlesh Kumar Mishra Vs State of

Maharashtra 2023 (5) TMI 922 -
Bombay HC
Legal Update

Determine taxability of
Games such as rummy on
online platform

The petitioner runs technology

platform that allow users to play
skill based online games against
each other. The show cause notice
alleged that games involves
element of chance, and therefore
constituted betting or gambling. It
was held that games which require
predominantly skill to succeed
cannot be regarded as betting or
gambling activity.

Gameskraft Vs DGGI 2023 (5) TMI

926 - HC
Legal Update

Budgetary support is a
concession/incentive
extended by the Government

Budgetary scheme does not

provide for Interest in case of
delay in disbursement of benefit,
such benefit is concession granted
by the Govt. No unit could lay
claim as a matter of right when
there is no provision as such in the
scheme.

M/s VJ Jindal Cocoa Pvt Ltd Vs

Union of India 2023 (5) TMI 1184- J
& K HC
Legal Update

Tax burden of GST for

Government contract entered
prior to 2017 to be borne by
Government

Government agencies to honor the

payment of GST and reimburse
tax amount on works contract
entered prior to GST continued
in GST period, which was not
factored at the time of entering
contract with govt.

Sri Chandrashekaraiah Vs Union of

India 2023 (6) TMI 93- Karnataka
HC
Legal Update

Amount recovered without

following due procedure must
be refunded

When Tax is paid through Form

GST DRC-03 during search
proceedings, proper officer neither
have issued acknowledgement in
GST DRC-04 nor issued any
notice under Section 74 (1) of the
CGST Act. Department was
directed to refund amount.

Samyak Metals Pvt Ltd Vs Union of

India 2023 (6) TMI 183- Punjab &
Haryana HC
Legal Update

Refund claim filed cannot be

withheld by the department

The application for grant of

refund once filed is required to be
decided one way or the other and
cannot be kept pending with an
oral information that the claim
has been withheld.

B. C. Power Controls Ltd Vs Union of

India 2023 (6) TMI 446- Allahabad
HC
Legal Update

Credit cannot be denied due

to retrospective cancellation
of registration of supplier

Where suppliers registration was

cancelled with retrospective effect,
credit cannot be denied on
purchases carried out prior to
such cancellation.

M/s Gargo Traders Vs Joint

Commissioner 2023 (6) TMI 533-
Gujarat HC
Legal Update

Allegation of fraud/
suppression needs to be
supported by proper reasons

In case GST registration is alleged

to be obtained by fraud/wilful
misstatement or suppression, such
allegation needs to be supported
by reasons as to how and under
what circumstances the
registration was obtained by the
petitioner by fraud/wilful
misstatement/ suppression of
facts.

Ultra Steel Ward Vs State of MP 2023

(6) TMI 888- MP HC
Legal Update

Petitioner should not suffer

for the error committed by
supplier in reporting

Petitioner paid tax but his supplier

inadvertently deposited the
amount of GST in the wrong
GSTIN number. It is a settled law
that no one can be made to suffer
for the fault of another.

Agarwal and Brothers Vs Union of

India 2023 (6) TMI 940- MP HC
Legal Update

Attorney-client privilege.
Department cannot issue
notice to Advocate for
obtaining Information

The authorities have no

jurisdiction to issue notices to the
learned advocates calling for
information regarding their
clients. Information given by the
clients is a privileged
communication.

Himangshu Kumar Ray Vs State of

West Bengal 2023 (6) TMI 943-
Calcutta HC
Legal Update

200% penalty cannot be

imposed for non renewal of E-
way Bill

On account of breakdown of
vehicle, the petitioner’s vehicle
could not reach destination and e
way bill was expired. There is a
violation committed by the
appellants but the violation is not
as grave enough to call for
imposition of penalty at the rate of
200% of the tax amount.

Bitumix India LLP Vs Deputy

Commissioner 2023 (6) TMI 1231-
Calcutta HC
Legal Update

No penalty can be imposed

when there is no intent to
evade tax

On perusal of E-way Bill it is seen

that no tax was payable since the
goods which were owned by the
petitioner were taken back for
repairs. The court found that the
conduct of petitioner was not
with the intent to evade tax.
Hence, no penalty be levied.

Usha Martin Limited Vs Deputy

Commissioner 2023 (7) TMI 97-
Calcutta HC
Legal Update

Commissionerate of one state

has jurisdiction to attach the
bank account of person in
another state

Under section 83, the

Commissionerate of one state has
jurisdiction to pass provisional
attachment order on a person and
bank account even though not
being within the territorial
jurisdiction of that state.

Bharat Parihar Vs State of

Maharashtra 2023 (7) TMI 101-
Bombay HC
Legal Update

Department to pay Interest

for delay in processing
refund

The petitioner is manufacturer

and exporter of submersible
pumps. The petitioner availed
credit of good and services
purchased. The petitioner claimed
refund. Where refund is delayed,
interest under Section 56 cannot
be avoided. The provisions of
Section 56 of the CGST Act, 2017,
are mandatory provisions.

Panji Engineering Pvt Ltd Vs Union

of India 2023 (7) TMI 533- Gujarat
HC
Legal Update

The fresh show cause notice

cannot be reissued, once
earlier show cause notice
attains finality

Revenue cannot re-agitate and

issue fresh show cause notices
again for the same cause of
action covering same period
against which the favorable order
is already passed by the first
Appellate Authority and same has
attained finality.

Ambey Mining Pvt Ltd Vs

Commissioner of State Tax 2023 (7)
TMI 876- Jharkhand HC
Legal Update

Scrutiny proceedings of
return u/s 61 and proceeding
u/s 74 are two separate and
distinct exigencies

Issuance of notice under Section

61(3) pursuant to scrutiny of
return, therefore, cannot be
construed as a condition
precedent for initiation of action
under Section 74 of the Act.

Nagarjuna Agro Chemicals Pvt Ltd Vs

State of U.P. 2023 (7) TMI 1103-
Allahabad HC
Legal Update

Upheld constitutional
validity of time limit imposed
u/s Section 16(4) of CGST Act

The court upheld constitutional

validity of Section 16(4) of CGST
Act. ITC being a
concession/benefit/rebate, the
legislature is within its
competency to impose certain
conditions, including time
prescription for availing such
right.

Thirumalakonda Plywoods Vs The

Assistant Commissioner 2023 (7)
TMI 1226- AP HC
Legal Update

After approval of resolution

plan by NCLT the new
company is not entitled to the
credit of old company

IBC proceedings were initiated

against the petitioner. Petitioner
sought to revise Tran-1 to avail
missed credit. The court held that
the credit available to the earlier
management would not be
available to the current
management as the current
management was not a
taxpayer during the period of
procurement.

ESL Steel Limited Vs Principal

Commissioner 2023 (7) TMI 1004-
Jaharkhand HC
Legal Update

Appeal cannot be rejected due

to failure of petitioner to
follow procedural
requirement

Appeal cannot be rejected for

failure to comply with the
procedure such as providing
proof of pre-deposit without
giving an opportunity to the
petitioner of rectifying the
procedural defects.

JEM Exporter Vs Union of India

2023 (8) TMI 173- Bombay HC
Legal Update

ITC cannot be denied to the

recipient without due
investigation of supplier

The department alleged that

petitioner has claimed excess ITC
due to difference between amount
of ITC in Form GSTR-2A and
Form GSTR-3B. Court held that
ITC cannot be denied to a
recipient unless the Tax
Authorities initiate action against
the defaulting supplier. The
department filed Special Leave
Application. The Hon’ble disposed
of SLP due to demand being on
lower side. (SLP NO.27827/2023)

Suncraft Energy Pvt Ltd Vs The

Assistant Comm 2023 (8) TMI 174-
Calcutta HC
Legal Update

Order of attachment passed

by superintendent is without
authority of law

Superintendent by a letter
addressed to the bank directed
freezing the petitioner’s bank
account. The court held that order
of attachment cannot be passed by
the officer other than the
Commissioner.

Vikas Enterprises Vs Commissioner

of C.T. 2023 (8) TMI 239- Delhi HC
Legal Update

In case Suppliers default in

payment of tax due to
cancelled registration, credit
cannot be availed by
purchaser

The petitioner purchase goods

from supplier whose registration
was cancelled prior to effecting
such purchases. Further, supplier
has not paid tax. Held that a
registered person is not entitled to
credit of input tax in respect of any
supply of goods or services of both
if tax is not paid to the
Government.

Jai Balaji Paper Cons Vs The

Assistant Commissioner 2023 (8)
TMI 573- Madras HC
Legal Update

Essential facts found non-

existent in the proceedings in
scrutiny of return would have
a bearing on proceedings
under Section 74

While proceedings under Section

67 and Section 74 are distinct in
scope and purpose, at the same
time, the essential facts found
non-existent in the proceedings
under Section 67 would have a
material bearing on
proceedings under Section 74 of
the Act.

M/s Viabhav Edible Pvt Ltd Vs State

of U.P. 2023 (8) TMI 836- Allahabad
HC
Legal Update

Statutory limitation of filing

an appeal is not applicable in
case of cancellation of
registration

In case of cancellation of
registration, period of
limitation to file an appeal is not
applicable, if petitioner is not
allowed to revive the registration,
the GST will not be paid. The
ultimate goal under the GST
regime will stand defeated.

M/s Mani Enterprises Vs Additional

Commissioner of GST 2023 (8) TMI
889- Madras HC
Legal Update

Detention of goods returned

back for non-issuance of
credit note is not warranted

Petitioner transported solar

panels to their customer. Due to
heavy down pour, the solar panels
got wet and therefore buyer
refused to take delivery. On its
way back, goods were detained
alleging that the goods were not
accompanying credit notes. The
court held that the goods which
are being returned need not
necessarily be accompanying a
Credit Note.

Luminous Power Technologies Pvt

Ltd Vs State Tax Officer 2023 (8) TMI
1036- Madras HC
Legal Update

In case Suppliers default in

payment of tax, credit cannot
be availed by purchaser

In case of claim of Input Tax

Credit when the selling dealer has
not paid the said tax to the
Government, the court held that
ITC is in the nature of a benefit /
concession and not a right
extended to the assessee under the
statutory scheme.

Aastha Enterprises Vs State of Bihar

2023 (8) TMI 1038-Patna HC
Legal Update

Audit under Section 65

cannot be conducted on
unregistered concern

When the section 65 which

provides for conduct of audit
specifically states audit can be
conducted on 'any registered
person', then it ought to be
construed as existence concern.
Audit cannot be conducted on
petitioner as petitioner is
unregistered concern.

TVL Raja Stores Vs Assistant

Commissioner 2023 (8) TMI 1089-
Madras HC
Legal Update

Order set aside against notice

missed to be replied due to
complex online structure

Assessee cannot be penalized if

Notice on portal went unnoticed
due to complex architecture,
resulting in Petitioner missing it.
Impugned order passed was set
aside.

Sabari Infra Pvt Ltd Vs Assistant

Commissioner 2023 (9) TMI 501-
Madras HC
Legal Update

Notice in GST MOV-07 issued

beyond a time period of 7
days liable to be set aside

The court set aside notice in Form

GST MOV-07 issued by authorities
beyond statutory limitation period
of seven days of
detention/seizure of goods /
conveyance.

TVL. TM Steel Vs Deputy State Tax

Officer 2023 (9) TMI 787-Madras HC
Legal Update

Constitutional validity of
Section 16(4) was upheld

The court upheld constitutional

validity of Section 16 (4) of the
CGST Act. The language of Section
16 of the CGST Act suffers from no
ambiguity and clearly stipulates
grant of ITC subject to the
conditions and restrictions
put thereunder. ITC is not
unconditional and a registered
person becomes entitled to ITC
only if the requisite conditions
stipulated therein are fulfilled.

Gobinda Construction Vs Union of

India 2023 (9) TMI 902-Patna HC
Legal Update

Non reflection in Form GSTR-

2A should not be a sufficient
ground to deny claim of the
input tax credit

Denying input tax credit based

solely on discrepancies in
GSTR-2A is unjust. Taxpayers
should not be penalized for issues
beyond their control, such as the
non-deposit of taxes by the seller
dealer.

Diya Agencies Vs The State Tax

Officer 2023 (9) TMI 955-Kerala HC
Legal Update

2 years time-limit for filing

refund not applicable where
tax deposited under a mistake

The period of limitation for

applying for a refund as
prescribed under Section 54 of the
CGST Act, would not apply where
GST is not chargeable. Article
265 of the Constitution of India
proscribes any levy or collection of
tax except by authority of law.

Delhi Metro Rail Corporation Ltd Vs

The Additional Commo of CGST 2023
(9) TMI 1177-Delhi HC
Legal Update

Decides validity of recovery

proceedings issued under
Section 79

Before issuing garnishee

proceedings under Section 79, the
authorities shall issue notice to the
assessee in terms of section
73(1) and provide an opportunity
to the assessee to submit his reply
to the notice.

Kesoram Industries Vs The

Commissioner of Central Tax 2023
(9) TMI 1179-Telangana HC
Legal Update

Court decides whether

registration of petitioner can
be cancelled with
retrospective effect

The court held that since the

petitioner’s had closed its business
with effect from 31.03.2022. The
petitioner could not be
expected to file any returns
thereafter. The cancellation of
petitioner’s GST registration shall
take effect from 31.03.2022.

Krishna Traders Vs The

Commissioner of CGST 2023 (9) TMI
1181-Delhi HC
Legal Update

Credit missed in Tran 1

availed in electronic ledger.
Entire exercise is revenue
neutral.

On account of technical glitches,

credit could not be transitioned in
Tran 1. The petitioner availed
such credit in Electronic Credit
Ledger and had utilized the same
for discharging tax liability. The
court held that the entire exercise
is revenue neutral.

M/s PMA Controls India Ltd Vs Joint

Commissioner 2023 (10) TMI 578-
Madras HC
Legal Update

Stayed parallel proceedings

issued by the State
Authorities

In case of parallel proceedings

issued by State and Central
Authorities, court held that going
by Section 6, it is only proper that
the State Tax Authority does not
continue the proceeding and keep
it in abeyance till the Central
Tax Authority completes the
proceedings, first initiated.

Baibhaw Construction Pvt Ltd Vs

Union of India 2023 (10) TMI 856-
Patna HC
Legal Update

Court provided direction in

respect of cancellation of
registration

Cancellation of registration should

not result in violating Article 21 of
the Constitution by stopping
assessee’s business. The
method which is adopted by the
department in cancelling
registration is like strangulating
the neck of the small-scale
entrepreneurs.

Abdul Samad Mohamed Inayathullah

Vs Superintendent of CGST 2023
(10) TMI 929-Madras HC
Legal Update

Denied credit due to lack of

evidence

The petitioner has 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. Credit is ineligible.

Malik Traders Vs State of UP 2023

(10) TMI 947-Allahabad HC
Legal Update

Summons cannot be
continued to be used for the
purpose of enforcing the
presence for all times

The department cannot issue

multiple summons under
Section 70 of the Act on the same
cause of action.

Rakesh Janghu Vs Union of India

2023 (10) TMI 1075- P & H HC
Legal Update

Independent examination of
evidence by the department is
required when credit is
denied due to 2A vs 3B
difference

Merely on the ground that in Form

GSTR-2A the tax is not reflected
should not be a sufficient ground
to deny the credit. The authority is
required to independently
examine the evidence regarding
the claim of input tax credit.

Praveen Bhaskaran Vs Union of

India 2023 (10) TMI 1204-Kerala HC
Legal Update

Penalty leviable when tax

collected is not paid

Waiver of penalty u/s 73 (8)

cannot come to the rescue of the
taxpayer, when the assessee has
collected the tax but not
credited it to the Government.

Global Plasto Wares Vs Assistant

State Tax Officer 2023 (11) TMI 93-
KeralaHC
Legal Update

All services supplied by an

'educational institution’ to its
students are exempt from
GST.

Consideration charged by the

educational institutes by way of
entrance fee for conduct of
entrance examination is
exempt.

Alva‘s Education Foundation Vs State

of Karanataka 2023 (11) TMI 138-
Karnataka HC
Legal Update

GST Council cannot

determine classification of
goods

Flavored milk falls under HSN

0402 and GST council cannot
impose classification. The power
of the GST Council is merely
recommendatory. It is for the
Government to fix appropriate
rate on the goods that are
classifiable under the Customs
Tariff Act, 1975.

Parle Agro Pvt Ltd Vs Union of India

2023 (11) TMI 601-Madras HC
Legal Update

Tax Research Unit (TRU)

cannot issue circulars

TRU cannot issue circular

seeking to clarify matter drawing
upon powers under Section 168 of
CGST Act. In the absence of a
conferral of any power upon the
TRU, or it being recognized as
being statutorily, enabled to issue
any clarification or directive
under Section 168 of the CGST Act.

Textile Manufacturer Vs Union of

India 2023 (11) TMI 666-Delhi HC
Legal Update

Refund cannot be rejected for

the lack of endorsement from
SEZ

Delay in getting endorsements

from AO cannot result in refund
denial for supplier to SEZ for no
fault of his. Endorsement does not
state that the goods supplied were
for authorized operations.

Lenovo (India) Pvt Ltd Vs Joint

Comm of GST 2023 (11) TMI 774-
Madras HC
Legal Update

Waive interest on delay in

payment of tax due to
cancellation of registration

On account of the cancellation

of the GSTIN on 24.08.2017,
petitioner could not file return for
the month of July, 2017. Petitioner
can not be said to have made any
default in remitting the tax
inasmuch as he could not have
remitted the tax without there
being a valid GSTIN. No interest is
leviable.

Hilton Garden Vs Comm of CGST

2023 (12) TMI 69-Madras HC
Legal Update

Court interpreted scope of

agriculture produce

Claim of exemption on service

received such as loading
unloading was rejected on the
premise that imported wheat
moved to the importer's factory
for further processing is not
“agricultural produce”.
Conversion of wheat into
maida, atta and sooji would not
take wheat outside the definition
of agricultural produce.

Naga Ltd Vs AAR Puducherry 2023

(12) TMI 155-Madras HC
Legal Update

Unsigned order is no order is

the eyes of law

The court held that unsigned

order is no order in the eyes of
law. Merely uploading of the
unsigned order, may be by the
Authority competent to pass the
order, would, in our view, not cure
the defect which goes to the very
root of the matter i.e. validity of the
order.

SRK Enterprises Vs Assistant

Commissioner 2023 (12) TMI 156-
AP HC
Legal Update

Directed to refund credit

reversed during investigation

The reversal of ITC during search

proceedings was not voluntary.
It is not difficult to accept that the
petitioner may have found the
circumstances intimidating and
had accordingly agreed to reverse
the ITC.

Santosh Kumar Gupta Vs

Commissioner of CGST 2023 (12)
TMI 291-Delhi HC
Legal Update

Allowed rectification of
GSTR- 3B

Allowed writ petition directing

that rectification in return should
be allowed when ITC in GSTR 3B
is accounted as IGST credit
instead of CGST+SGST credit
erroneously.

Chukkath Krishnan Praveen Vs State

of Kerala 2023 (12) TMI 513-Kerala
HC
Legal Update

Allowed rectification of Form

GSTR-1

The petitioner sought approval to

modify / amend FORM GSTR-1
for financial year 2021-2022. Held
that department should permit to
correct any bonafide,
inadvertent error incurred
while furnishing details in Form
GSTR-1.

Star Engineers (I) Pvt Ltd Vs Union

of India 2023 (12) TMI 729-Bombay
HC
Legal Update

Court interpret scope of

agriculture produce

Tea is an agricultural produce for

the purpose of exemption under
Notif. 12 of 2017 CT (Rate). The
essential characteristic of the tea
being an ‘agricultural produce’
would not stand extinguished by
mere processing and packing
in whatever form.

Nutan Warehousing Company Pvt

Ltd Vs The Commissioner of C.T.
2023 (12) TMI 730-Bombay HC
Legal Update

Upheld constitutional
validity of Section 16(4)

Grant of ITC under GST has been

made subject to conditions and
restrictions put thereunder. The
right of a registered person to take
ITC u/s 16 (1) would become the
vested right only if the
conditions to take it are
fulfilled.

Jain Brothers Vs Union of India 2023

(12) TMI 829-Chattisgarh HC
Legal Update

To initiate proceedings u/s

73, the department must be in
possession of material
information

Section 73 of the Act starts with

the words where the authority
appears to found it necessary for
initiating the proceedings, there
ought to had been some material,
information or even sort of a
complaint available with them as
regards the suspicious
transactions or the alleged evasion
of tax made by the petitioner.

M/s Glaxosmithkline Consumer

Health Care Ltd Vs Dy. Comm of
State Tax 2023 (12) TMI 99
-Telangana HC
Legal Update

Legality of Notification
Extending time limit for
issuing show cause notice u/s
168A was challenged

The petitioner submitted that time

limit for issuance of Show Cause
Notice can be extended u/s 168A of
CGST Act in special circumstances.
Eventuality such as case of war,
epidemic, flood etc. mentioned in
the above section is not existed
when the impugned notification
was issued. Court granted ad-
interim relief directing abeyance
of show cause notice.

M/s Gajanand Multishop Vs Union of

India (Special Civil Application.
20227 of 2023)
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