Supreme Court order extending limitation period with effect from 14.03.2021 under all general and special laws is uploaded

Supreme Court order extending limitation period with effect from 14.03.2021 under all general and special laws is uploaded

Supreme Court of India

The Text of the Order as follows :

The Court is convened through Video Conferencing.

This Court took suo motu cognizance of the situation arising out of the challenge faced by the country on account of COVID-19 Virus and resultant difficulties that could be faced by the litigants across the country. Consequently, it was directed vide order dated 23rd March, 2020 that the period of limitation in filing petitions/ applications/ suits/ appeals/ all other proceedings, irrespective of the period of limitation prescribed under the general or special laws, shall stand extended with effect from 15th March, 2020 till further orders.

Thereafter on 8th March, 2021 it was noticed that the country is returning to normalcy and since all the Courts and Tribunals have started functioning either physically or by virtual mode, extension of limitation was regulated and brought to an end. The suo motu proceedings were, thus, disposed of issuing the following directions:

“1. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 14.03.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021.

2. In cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15.03.2021. In the event the actual balance period of limitation remaining, with effect from 15.03.2021, is greater than 90 days, that longer period shall apply.

3. The period from 15.03.2020 till 14.03.2021 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.

4. The Government of India shall amend the guidelines for containment zones, to state.

“Regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions, such as, time bound applications, including for legal purposes, and educational and job-related requirements.”

Supreme Court Advocate on Record Association (SCAORA) has now through this Interlocutory Application highlighted the daily surge in COVID cases in Delhi and how difficult it has become for the Advocates-on-Record and the litigants to institute cases in Supreme Court and other courts in Delhi. Consequently, restoration of the order dated 23rd March, 2020 has been prayed for.

We have heard Mr. Shivaji M. Jadhav, President SCAORA in support of the prayer made in this application. Learned Attorney General and Learned Solicitor General have also given their valuable suggestions.

We also take judicial notice of the fact that the steep rise in COVID-19 Virus cases is not limited to Delhi alone but it has engulfed the entire nation. The extraordinary situation caused by the sudden and second outburst of COVID-19 Virus, thus, requires extraordinary measures to minimize the hardship of litigant–public in all the states. We, therefore, restore the order dated 23rd March, 2020 and in continuation of the order dated 8th March, 2021 direct that the period(s) of limitation, as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended till further orders.

It is further clarified that the period from 14th March, 2021 till further orders shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.

We have passed this order in exercise of our powers under Article 142 read with Article 141 of the Constitution of India. Hence it shall be a binding order within the meaning of Article 141 on all Courts/Tribunals and Authorities.

This order may be brought to the notice of all High Courts for being communicated to all subordinate courts/Tribunals within their respective jurisdiction.

Issue notice to all the Registrars General of the High Courts, returnable in 6 weeks.

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Expediting Customs Clearances for Covid related imports made by Indian Red Cross society

Expediting Customs Clearances for Covid related imports made by Indian Red Cross society

Instruction No.08/2021-Customs

F.No.450/117/2021-Cus-IV (Pt)
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
******

Room No.227B, North Block,
New Delhi, dated the 27th of April, 2021

To

All Principal Chief Commissioners/Chief Commissioners of Customs/Customs (Preventive),
All Principal Chief Commissioners/Chief Commissioners of Customs & Central tax,
All Principal Commissioners/Commissioners of Customs/Customs (Preventive),
All Principal Commissioners/Commissioners of Customs & Central tax,
All Principal Director Generals/Director Generals under CBIC.

Madam/ Sir,

Subject: Expediting Customs Clearances for Covid related imports made by Indian Red Cross society–reg.

Reference is invited to Board Instruction No.07/2021 dated 24th April 2021 requesting the field formations to give high priority for Customs clearance of import of goods relating to COVID 19 pandemic, including medical grade oxygen, specified equipment for production, transportation and distribution of oxygen, equipment for oxygen therapy to COVID patients and COVID-19 vaccines etc. Donations of COVID-related material and medicines from foreign Governments have also started arriving at our ports.

2. In wake of the extraordinary situation owing to the COVID pandemic, the issue of providing seamless clearance to such relief material received from foreign Governments and imported by Indian Red Cross Society was discussed in a meeting chaired by Cabinet Secretary on 27.4.2021. It was decided that in all cases of covid related imports facilitated by Ministry of External Affairs and/ or imported by Indian Red Cross society, permissions/ licences/ authorizations required from other Government Department/Agencies prior to the clearance of goods, if any, would be deemed to have been given. In other words, such cases need not be referred to those agencies or the requirement may be suitably waived.

3. In view of the above decision, the Customs formations are requested to give the highest priority to these consignments and facilitate their clearance in the shortest possible time.

Yours faithfully,

(Ananth Rathakrishnan)
Deputy Secretary (Customs)

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CBDT extends time for payment under VSV to 30.06.2021

CBDT extends time for payment under VSV to 30.06.2021

MINISTRY OF FINANCE

(Department of Revenue)

(CENTRAL BOARD OF DIRECT TAXES)

NOTIFICATION

New Delhi, the 27th April, 2021

S.O. 1704(E).—In exercise of the powers conferred by section 3 of the Direct Tax Vivad se Vishwas Act, 2020 (3 of 2020), the Central Government hereby makes the following amendments in the notification of the Government of India, Ministry of Finance, (Department of Revenue), number 85/2020, dated the 27th October, 2020, published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (ii), vide number S.O. 3847(E), dated 27th October, 2020 , namely:––

In the said notification, ––CBDT extends time for payment under VSV to 30.06.2021

(i) in clause (b), for the figures, letters and words “30th day of April, 2021”, the figures, letters and words “30th day of June, 2021” shall be substituted;

(ii) In clause (c), for the figures, letters and words “1st day of May, 2021”, the figures, letters and words “1st day of July, 2021” shall be substituted

[Notification No. 39/2021/ F.No. IT(A)/01/2020-TPL]

RAJESH KUMAR BHOOT, Jt. Secy. Tax Policy & Legislation Division

Note: The principal notification was published in the Gazette of India, Extraordinary, Part-II Section 3, Sub-section (ii) dated the 27th October, 2020 vide number S.O. 3847(E), dated 27th October, 2020 and was subsequently amended by notification number S.O. 4804(E), dated 31st December, 2020 published in the Gazette of India, Extraordinary, Part-II Section 3, Sub-section (ii) dated the 31st December, 2020 and notification number S.O. 471(E), dated 31st January, 2021 published in the Gazette of India, Extraordinary, Part-II Section 3, Subsection (ii) dated the 31st January, 2021 and notification number S.O. 964(E), dated 26th February, 2021 published in the Gazette of India, Extraordinary, Part-II Section 3, Subsection (ii) dated the 26th February, 2021.

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SC Power of provisional attachment under GST is draconian

SC Power of provisional attachment under GST is draconian

The Hon’ble Supreme Court of India in M/S Radha Krishan Industries v. the State of HP (Civil Appeal No 1155 of 2021 dated April 20, 2021) set aside the judgment passed by the Hon’ble Himachal Pradesh High Court (“HP High Court”) and the orders of provisional attachment passed by the Joint commissioner. Held that, the power to order a provisional attachment of the property of the taxable person including a bank account is draconian in nature and the conditions which are prescribed by the statute for a valid exercise of the power must be strictly fulfilled.

Facts:

M/S Radha Krishan Industries (“the Appellant”) is a manufacturer of lead according to the specific requirements of its clients. This appeal arises from a judgment and order in Writ Petition No. 5648 of 2020 dated January 1, 2021 of the Hon’ble HP High Court wherein, the Appellant challenged the orders of provisional attachment, issued on October 28, 2020 by the Joint Commissioner of State Taxes and Excise, (“the Respondent”) attaching the Appellant’s receivables from its customers for alleged involvement in illegal claim of ITC amounting to INR 5,03,82,554/- during 2017-18 and 2018-19, while invoking Section 83 of the Himachal Pradesh Goods and Services Tax Act, 2017 (“HPGST Act”) and Rule 159 of Himachal Pradesh Goods and Services Tax Rules, 2017 (“HPGST Rules”). The Hon’ble HP High Court dismissed the writ petition challenging orders of provisional attachment on the ground that an alternate and efficacious remedy is available to the Appellant and held that when a statutory forum of appeal exists, an appeal should not be entertained ignoring the statutory dispensation.

A ‘detection case’ was registered against GM Powertech, one of the suppliers of the Appellant, through a search and seizure. The partners of GM Powertech were arrested on December 3, 2018 on the ground of raising fraudulent claims of Input Tax Credit (“ITC”) from fake/fictitious firms and had issued invoices to various recipients in Himachal Pradesh including the Appellant and the notice was issued to the Appellant on the basis that the Appellant had claimed ITC on the supplies received from GM Powertech. Further, in the meanwhile, the Respondent passed an order of provisional attachment dated January 19, 2019, in respect of receivables worth INR 5 crores due from Fujikawa Power, one of the customers of the Appellant that inadvertently referred to Sarika Industries instead of the Appellant. The Appellant responded by a representation dated January 29, 2019, claiming inter alia, that the order of attachment was without affording a hearing and that the ITC had been blocked without prior notice and the order was subsequently withdrawn on January 30, 2019.

Subsequent to the dismissal of the petition by the Hon’ble HP High Court, the Appellant sought to inspect the files for GM Powertech, and stated that no documents in regard to the proceedings initiated under Section 74 of the HPGST Act has been provided. In response, the Respondent allowed the Appellant to inspect the Appellant’s case file. According to the Respondent, the Appellant failed to exercise this option and did not reply to the issued show cause notices. Thereafter, on February 18, 2021, an order under Section 74(9) of the HPGST Act was passed by the Respondent confirming a tax demand of INR 8,30,27,218/-, which has been assailed by the Appellant before the Appellate Authority.

The Appellant has filed this appeal against the dismissal of the petition challenging the orders of provisional attachment.

Issues:

• Whether the orders of provisional attachment issued by the Respondent against the Appellant are in consonance with the conditions stipulated in Section 83 of the HPGST Act?
• Whether the Hon’ble HP High Court was right in concluding that the provisional attachment could not be challenged in a petition under Article 226 of the Constitution of India?

Held:

The Hon’ble Supreme Court of India in Civil Appeal No 1155 of 2021, dated April 20, 2021 held as under:

• Noted that, the order of provisional attachment was passed before the proceedings against the Appellant were initiated under Section 74 of the HPGST Act. Section 83 of the HPGST Act requires that there must be pendency of proceedings under the Section 62 (assessment of non-filers of returns) or Section 63 (assessment of unregistered persons) or Section 64 (summary assessment in certain special cases) or Section 67 (power of inspection, search and seizure) or Section 73 (determination of tax in non-fraud cases) or Section 74 (determination of tax in fraud cases) against the taxable person whose property is sought to be attached.
• Further noted that, an order of provisional attachment dated January 19, 2019, was issued by the Respondent which was withdrawn on January 30, 2019, after considering the representations made by the Appellant. On the very ground, without any material change in circumstances, another order dated October 28, 2020 for provisional attachment came to be issued by the Respondent. The Hon’ble HP High Court has not considered this aspect that both the earlier and the subsequent orders of provisional attachment were on the same grounds. Therefore, unless there was a change in the circumstances, it was not open for the Respondent to pass another order of provisional attachment, after the earlier order of provisional attachment was withdrawn after considering the representations made by the Appellant.
• Observed that, that merely because proceedings were pending/concluded against another taxable entity i.e. GM Powertech, the powers of Sections 83 of the HPGST Act could not be attracted against the Appellant or it would be an expansion of a draconian power as contained in Section 83 of the HPGST Act, which must necessarily be interpreted restrictively.
• Stated that, once the final order of assessment is passed under Section 74 of the HPGST Act, the order of provisional attachment must cease to subsist. Therefore, after the final order under Section 74 of the HPGST Act was passed on February 18, 2021, the order of provisional attachment must come to an end.
• Opined that, there were no pending proceedings against the Appellant, the mere fact that proceedings under Section 74 of the HPGST Act had concluded against GM Powertech, would not satisfy the requirements of Section 83 of the HPGST Act. Thus, the order of provisional attachment was ultra vires Section 83 of the HPGST Act.
• Further, held that:
  • The Respondent while ordering a provisional attachment under Section 83 of the HPGST Act was acting as a delegate of the Commissioner in pursuance of the delegation effected under Section 5(3) of the HPGST Act and an appeal against the order of provisional attachment was not available under Section 107(1) of the HPGST Act;
  • The Hon’ble HP High Court has erred in dismissing the writ petition on the ground that it was not maintainable;
  • The power to order a provisional attachment of the property of the taxable person including a bank account is draconian in nature and the conditions which are prescribed by the statute for a valid exercise of the power must be strictly fulfilled;
  • The exercise of the power for ordering a provisional attachment must be preceded by the formation of an opinion by the Commissioner that it is necessary so to do for the purpose of protecting the interest of the government revenue. Before ordering a provisional attachment the Commissioner must form an opinion on the basis of tangible material that the assessee is likely to defeat the demand, if any, and that therefore, it is necessary so to do for the purpose of protecting the interest of the government revenue.
  • The expression “necessary so to do for protecting the government revenue” implicates that the interests of the government revenue cannot be protected without ordering a provisional attachment;
  • The formation of an opinion by the Commissioner under Section 83(1) of the HPGST Act must be based on tangible material bearing on the necessity of ordering a provisional attachment for the purpose of protecting the interest of the government revenue;
  • In the facts of the present case, there was a clear non-application of mind by the Respondent to the provisions of Section 83 of the HPGST Act, rendering the provisional attachment illegal;
  • Under the provisions of Rule 159(5), the person whose property is attached is entitled to dual procedural safeguards:

a. An entitlement to submit objections on the ground that the property was or is not liable to attachment; and

b. An opportunity of being heard;

• • There has been a breach of the mandatory requirement of Rule 159(5) of the HPGST Rules and the Respondent was clearly misconceived in law in coming into conclusion that the Respondent had a discretion on whether or not to grant an opportunity of being heard;
  • The Respondent is duty bound to deal with the objections to the attachment by passing a reasoned order which must be communicated to the taxable person whose property is attached;
  • The Appellant having filed an appeal against the order under Section 74(9) of the HPGST Act, the provisions of Sections 107(6) and Section 107(7) of the HPGST Act will come into operation in regard to the payment of the tax and stay on the recovery of the balance as stipulated in those provisions, pending the disposal of the appeal.
• Set aside the judgment and order of the Hon’ble HP High Court dated January 1, 2021 and the orders of provisional attachment dated October 28, 2020 by the Respondent.

Our Comments:

The CBIC vide Instruction No. CBEC-20/16/05/2021-GST/359, dated February 23, 2021, issued guidelines for provisional attachment of property/bank accounts under Section 83 of the Central Goods and Services Tax Act, 2017 (“CGST Act”) in view of number of cases before various Hon’ble Courts and observations made on the modalities of implementation of provisions by the authorities. To access the same Click here

To know more, kindly watch our video:

“Whether GST Dept can provisionally attach Property/Bank Account of any Person-Budget 21” by CA Bimal Jain- https://www.youtube.com/watch?v=CSg6v3jmXbM

“Whether GST Law is failing as Citizens Friendly Tax Structure” by CA Bimal Jain- https://www.youtube.com/watch?v=a1LAzvDRyI4&t=42s

Relevant Provisions:

Section 83 of the HPGST Act:

“Provisional attachment to protect revenue in certain cases.

83. (1) Where during the pendency of any proceedings under section 62 or section 63 or section 64 or section 67 or section 73 or section 74, the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue, it is necessary so to do, he may, by order in writing attach provisionally any property, including bank account, belonging to the taxable person in such manner as may be prescribed.

(2) Every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under sub-section (1).”

DISCLAIMER: The views expressed are strictly of the author and A2Z Taxcorp LLP. The contents of this article are solely for informational purpose. It does not constitute professional advice or recommendation of firm. Neither the author nor firm and its affiliates accepts any liabilities for any loss or damage of any kind arising out of any information in this article nor for any actions taken in reliance thereon.

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Online GST Certification Course by Studycafe

Online GST Certification Course by Studycafe

Payment Link: https://rzp.io/l/SCGSTcourse

GST Certification Course

Day 1 Basic Concepts of GST

• Constitution of India (Provision related to GST)
• Discussion on definition of goods, service, Business, composite and mixed supply, Continuous Supply, taxable supply and non-taxable supply, supplier and recipient, exempt supply and zero-rated supply, NIL rated supplies, consideration and non-monetary consideration.

Day 2 Levy & Collection of Tax

• Definition of supply and all forms of supply and purpose thereof including schedule I, II and III.
• Levy of CGST, SGST & IGST
• Discussion on Composition Scheme

Day 3 Valuation and Time of Supply

• Time of Supply Rules
• Valuation Concept and Rules
• Discussion on use of HSN Codes

Day 4 Registration

• Persons liable and not liable for registration
• Special provision relating with casual taxable person & NR taxable person.
• Amendments, Cancellations and Revocations.

Day 5 Input Tax Credit

• Ingredients in section 16
• Purpose and exclusions through section 17- Apportionment of credit & blocked credit

Day 6 Place of Supply & Exports

• Detailed Discussion on Relevant Sections of IGST Act
• Filing of Bond and LUT
• Discussion on SEZ, EOUs

Day 7 & Day 8 GST Returns

• Discussion on GSTR-1, GSTR-3B, QRMP Scheme
• Discussion on GST Annual Return
• Filing GST Return with Tally

Day 9 E-Invoicing & E-Way Bill

• Process of generating E-Invoice and E-Way Bill
• Procedure its applicability
• Document to be carried with goods in movement

Day 10 Assessment

• Discussion on Assessments
• Departmental Audits

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GST not applicable on amount collected as membership subscription fees on account of Principle of Mutuality

GST not applicable on amount collected as membership subscription fees on account of Principle of Mutuality

THE AUTHORITY FOR ADVANCE RULINGS IN KARNATAKA

The Relevant Text of the Order as follows :

8. We observe that Finance Act, 2021 has over-ruled what the Courts have held till now and has countered the Principle of Mutuality by way of Explanation which states that the members or constituents of the club and the club are two separate entities and persons for the purpose of Section 7 of CGST Act, 2017 which defines Supply.

9. We also note that by virtue of Section 1 of Finance Act, 2021, the amendment brought in Section 7 of CGST Act, 2017 by way of Section 108 of Finance Act, 2021, will only come into effect on the date when Central Govt notifies the same and then the same will be notified with the corresponding amendments passed by the respective States and Union territories in respective SGST / UTGST Act.

10. Therefore, we conclude that unless the amended Section 7 of CGST Act, 2017 is notified, the applicant is not liable to pay GST on subscription fees and Infrastructure development fund collected from the members as per the Hon’ble Supreme Court judgment in the case of M/s. Calcutta Club Ltd.

11. In view of the foregoing, we pass the following

The Question and Ruling as follows:

1. Whether amount collected as membership subscription fees paid by the members of the applicant towards facilities provided by the applicant is liable as the supply of service under GST?

2. Whether amount collected as an infrastructure development fund for the development and maintenance of the facilities provided by the applicant is liable as the supply of service under GST?

RULING

The applicant is not liable to pay GST on subscription fees and Infrastructure development funds collected from the members and this ruling is subject to the amendment to the CGST Act by section 1 of the Finance Act 2021, as and when it is notified.

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CBIC allows companies & LLP to file GSTR-1 & GSTR-3 electronic verification code (EVC) amid COVID

CBIC allows companies & LLP to file GSTR-1 & GSTR-3 electronic verification code (EVC) amid COVID

Central Board of Indirect Taxes [CBIC] has allowed registered person registered under the provisions of the Companies Act, 2013 (18 of 2013) [Companies & LLP]  to furnish the return under section 39 in FORM GSTR-3B and the details of outward supplies under section 37 in FORM GSTR-1 or using invoice furnishing facility, verified through electronic verification code (EVC). This option is available during the period from the 27th day of April, 2021 to the 31st day of May 2021.

MINISTRY OF FINANCE

(Department of Revenue)

(CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS)

NOTIFICATION

New Delhi, the 27th April, 2021

No. 07/2021–Central Tax

G.S.R. 292(E).—In exercise of the powers conferred by section 164 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Government, on the recommendations of the Council, hereby makes the following rules further to amend the Central Goods and Services Tax Rules, 2017, namely: –

1. (1) These rules may be called the Central Goods and Services Tax (Second Amendment) Rules, 2021.

(2) These rules shall come into force on the date of their publication in the Official Gazette.

2. In the Central Goods and Services Tax Rules, 2017, in rule 26 in sub-rule (1), after the third proviso, the following proviso shall be inserted, namely:-

“Provided also that a registered person registered under the provisions of the Companies Act, 2013 (18 of 2013) shall, during the period from the 27th day of April, 2021 to the 31st day of May, 2021, also be allowed to furnish the return under section 39 in FORM GSTR-3B and the details of outward supplies under section 37 in FORM GSTR-1 or using invoice furnishing facility, verified through electronic verification code (EVC).”.

[F. No. CBEC-20/06/08/2020-GST]
RAJEEV RANJAN, Under Secy

Note: The principal rules were published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide mnotification No. 3/2017-Central Tax, dated the 19th June, 2017, published vide number G.S.R. 610 (E), dated the 19th June, 2017 and last amended vide notification No. 01/2021-Central Tax, dated the 1st January, 2021, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 2(E), dated the 1st January, 2021.

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