GOODS AND SERVICES TAX (GST)

I. HIGH COURT

1.  [2019] (26)
GSTL 449 (Del.) Comnet Vision (India) Pvt. Ltd. vs. Commissioner of Trade and
Taxes Date of order: 28^th March,
2019

Rule 97A of
CGST Rules, 2017 allows manual filling of forms when the same could not be
filed electronically due to technical difficulties

FACTS

The petitioner was aggrieved by the technical difficulties faced while
filing and uploading the GST forms online. Vide Notification No. 48/2018 dated
10^th September, 2018 issued by the GST Council, the time limit to
submit the forms online was extended to 31^st March, 2019 because of
technical difficulties faced by the concerned entities / individuals.

HELD

It was held that the GST Council should enable the petitioner to file
the forms online or, where it is not possible within the time prescribed, i.e.,
31^st March, 2019, the Department should entertain the forms manually
as per Rule 97A of CGST Rules, 2017; the writ petition was thus disposed of.

Assessing officer
cannot reopen assessment based on opinion of audit party alone

FACTS

The petitioner had paid the tax without any
default. However, the respondent issued show cause notice dated 12^th
January, 2010 proposing to levy interest u/s 24(3) of TNGST Act for belated
payment on the basis of the report of the audit party.

The grievance of the petitioner was that the opinion of the audit party
cannot constitute information, thus the AO cannot reopen the assessment on the
basis of its report. The petitioner placed reliance on the decision of Punjab
and Haryana High Court in the case of Haryana Co-operative Sugar Mills
Ltd. vs. State of Haryana 107 STC 103, wherein it was
held that ‘the audit note as received by the assessing authority was not
“definite information” as per the meaning of section 31 of the Act.’

HELD

The AO has to independently record his view for reopening if he proposes
to do so. Thereafter, the notice has to be issued to the parties regarding such
reopening. Further, after considering their representations / objections, the
order has to be passed. It was regarded as a clear violation of the principles
of natural justice.

3. [2019] (26) GSTL 16 (All.) Selvel
Media Services Pvt. Ltd. vs. State of U.P. Date of order: 6^th May, 2019

Advertisement
tax cannot be imposed by the municipal authorities after 1^st July,
2017 since it was subsumed under the GST Law

FACTS

The petition was filed by an advertising company aggrieved by the demand
of advertisement tax imposed by the Nagar Nigam, Kanpur on displaying
advertisements through hoardings. Section 172(2)(h) empowering the municipal
corporation to levy advertisement tax had been deleted by virtue of section 173
of the U.P. Goods and Services Tax Act, 2017. The Constitutional provisions empowering
the State to levy advertisement tax also stood deleted by virtue of the
Constitution (101^st Amendment) Act, 2016 with effect from 12^th
September, 2016.

HELD

The High Court held that there was no power left with the State
legislature to legislate with regards to advertisement tax as the empowering
provisions stood deleted. In light of this, the demand to the extent after 1^st
July, 2017
was set aside and the refund of advertisement tax, if any, deposited after 1^st
July, 2017 was directed to be refunded.

Petitioner
allowed to manually rectify the GSTR3B returns for the months of August and December,
2017 and January and February, 2018

FACTS

The petitioner sought permission to rectify GSTR3B statements for the
months of August and December, 2017 and January and February, 2018 manually
subject to the outcome of the writ petition, pending disposal of W.P. No.
8662/2019 on the file of the High Court.

HELD

The Court noted that the Gujarat High Court in the case of AAP
& Co. [2019] (TIOL-1422-HC-AHM-GST) has held the press release
dated 18^th October, 2018 as illegal to the extent that its para 3
purports to clarify that the last date for availing input tax credit relating
to the invoices issued during the period from July, 2017 to March, 2018 is the
last date for the filing of return in Form GSTR3B. Besides, the Kerala High
Court, [2018] (TIOL-2902-HC-Ker.-GST) had also permitted the
request of transfer of tax liability from the head ‘SGST’ to ‘IGST’
notwithstanding the contention of the Revenue. Prima facie, the Court
held that the case is made out and that as the issues raised in the writ
petition require detailed examination, this is a fit case to grant the interim
order.

As such, petitioner is permitted to rectify GSTR3B statements for the
months of August and December, 2017 and January and February, 2018 manually,
subject to the outcome of the writ petition. The Court also directed that if
the petitioner submits rectified statements for the above purpose, the
respondents shall process the same in accordance with the procedure established
by law.

II. AUTHORITY FOR ADVANCE
RULING (AAR)

5.  [2019] (27) GSTL 272 (AAR – GST)
Chowgule Industries Pvt. Ltd., Goa Date of order: 26^th March, 2019

Input Tax
Credit on the motor vehicles purchased for demonstration can be availed as ITC on
capital goods and set off against output tax payable under GST

FACTS

The appellant was an authorised dealer for sale of motor vehicles and
spares. He purchased vehicles against tax invoice and reflected this in the
books of accounts as capital assets. Those vehicles were used as demonstration
cars for providing trial runs to customers as it was an essential part of
marketing and sales promotion. The vehicles were held for two years or 40,000
km, whichever was earlier, and then sold. The applicable GST was paid on the
selling price.

But as per section 17(5) of CGST Act, ITC can only be claimed on motor
vehicles if they were used for taxable supply and for transportation of
passengers or goods or imparting training in driving, flying, navigating such
vehicles or conveniences. The appellant argued that the taxable supply included
further supply of such vehicles and the GST Act did not prescribe the time
limit within which the further supply was to be effected. Hence, section 17(5)
was not applicable in their case. They also argued that since the vehicles were
used in the course of business or furtherance of business, ITC was available as
per section 16(1) of the CGST Act.

HELD

It was held that section 17(5) does not prescribe any time limit for
further supply and in the present case the goods were used for business
purposes as capital goods. Therefore, Input Tax Credit on the motor vehicles
purchased for demonstration purpose was allowed. The authority also prescribed
that the credit availed on such capital goods should be subject to reversal as
per section 18(6) at the time of sale.