Dr. Sanjiv Agarwal, FCA, FCS
Goods and Services Tax (GST), introduced from July 1, 2017 is over seven months old now but has resulted in operational and implementation disruptions affecting all stakeholders. GST law, as drafted and legislated, is not free from the interpretational hassles. GST Council his however, making regular changes to fix the anomalies and hardships faced by taxpayers. We expect some legislative changes in the forthcoming Union Budget -2018, based on GST Council recommendations.
Taxpayers have already started challenging various provisions of GST laws and rules framed there under with more than 75 writs being filed in different courts. High courts have taken a liberal stand so far in view of the fact that law is new and is yet evolving. However, CBEC may move to supreme court where the verdict is against the Government.
Here are few more judicial pronouncements for information and guidance of various stakeholders. It is expected that the litigation is bound to go up as time passes by.
- In Ramdev Trading Company & Another v. State of U.P. & 3 others (2017) 12 TMI 341 (Allahabad), where the goods of assessee were detained by detaining authority and also a penalty imposed on the ground that goods were mis described, it was observed that at the stage of seizure the detaining authority had not applied his mind, nor formed any opinion as to intention to evade tax and the only allegation made in the seizure order was to the effect that the Transit Declaration Form (TDF) was absent and that the goods have been mis-described. Also, there was no allegation whatsoever as to the intention of the petitioner to evade tax. In such circumstances, it was held that in absence of any allegation or evasion of tax being made against the petitioner at the stage of detention and seizure and even at the stage of issuance of notice of penalty, it was difficult to sustain the penalty.
- In M/s M.K. Enterprises through its Prop. Mukesh Kumar v. State of U.P. & 3 Others (2017) 12 TMI 342 (Allahabad), where the assessee was not given any opportunity to show cause or give reply to the allegation on which goods had been seized on account of absence of Transit Declaration Form (TDF), it was held that as the petitioner had no notice or opportunity to explain his conduct with respect to the discrepancy in the Tax Invoice alleged in the seizure order, the said order passed u/s 129(1) and 129(3) of the UPGST Act shall be set aside.
- In K. Ramesh v. Union of India (2018) 89 taxmann.com 161(Madras), where the petition was filed for issuance of a writ of mandamus directing all traders to use electronic way (E-Way)bill for movement/selling of goods, allowing generation of E-Way bill, or its cancellation through SMS, allocating unique E-way bill number (EBN) to be available to supplier, recipient and transporter, and increase flying squad in State, District and Zonal Level to monitor movement of goods and E-way bills, and Revenue filed counter affidavit answering these prayers and issued Notification No. 27/2017, dated 30-8-2017, it was held that petitioner should submit response to said Notification and instant writ petition was to be closed.
- In Apicor and Binzel Technoweld Pvt. Ltd. v. Union of India [WP (L) No. 2230 of 2018], Bombay high court has made remarkable observations vide its Order dated 6th February, 2018 on manner of implementation of GST in India and hardships being faced by the tax payers. It observed “we do not think that these are satisfactory state of affairs … The special sessions of Parliament or special or extraordinary meetings of (the GST) Council would mean nothing to the assessees unless they obtain easy access to the website & portals.”
(Some more cases to follow)