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GST Number can not be denied if t two persons have been carrying on their business in same premises : High Court

HIGH COURT OF MADRAS
Bio Med Ingredients (P.) Ltd.
v.
Assistant Commissioner (ST) / Commercial Tax Officer*
KRISHNAN RAMASAMY, J.
W.P. NO. 28811 OF 2023
W.M.P. NO. 29632 OF 2013
NOVEMBER 1, 2023

Ms. Aparna Nandakumar for the Petitioner. Ms. Amrita Dinakaran for the Respondent.


ORDER


1. When the matter was taken up for hearing on an earlier occasion, i.e. on 13-10-2023, this Court has passed the following order:-
“This petition has been filed by the petitioner seeking to call for the records of the impugned order in Form – GSTREG05 in Ref. No. ZA330923068624C dated 15-9-2023 and quash the same.
(A). Ms. Amrita Poonkodi Dinakaran, learned Government Advocate takes notice for the respondents.
(B). Learned counsel for the petitioner submitted that the petitioner-Company initially submitted an application for GST registration on 31-7-2023 and the same was rejected by the 1st respondent without assigning any reason. Therefore, the petitioner Company once again applied for GST registration on 22-8-2023, which was also came to be rejected stating that both the lessor and lessee have been running business in the same premises, which was not acceptable.
(C). She would further submit that the petitioner has been running its business in the same land which comprised to an extent of three acres. The respondents without conducting any physical verification had erroneously rejected the application of the petitioner Company and hence, the present writ petition has been filed.
(D). Learned Government Advocate appearing for the respondents seeks some more time to get instructions and file counter.
(E). Considering the above submissions, this Court directs the respondents to visit the petitioner Company and find out as to whether the petitioner is carrying on business separately in a portion of land or not and report the same before this Court in the next date of hearing.
(F). Post the matter on 31-10-2023. 
2. The learned Government Advocate appearing for the respondents would submit that in compliance of the above said direction, the officials of the respondent-Department visited the petitioner’s place of business and during such visit they found that two persons have been carrying on their business in the same premises with two separate GST Numbers and there is no demarcation of the properties referred by the petitioner.
3. Refuting the same, learned counsel for the petitioner would submit that though in the place, where, the petitioner is going to conduct the business, exists some other Company being run by some other person, however, the properties have been demarcated and in regard to such demarcation, records are available and the same would be filed before this Court.
4. In view of the rival submissions made by the petitioner, this Court in the interest of justice is inclined to pass the following order:-

     (i) In the event, the property referred to by the petitioner, where, the Petitioner-Company is going to run its business either demarcated or not, the respondents are directed to issue GST registration number to the petitioner within one week from the date of receipt of a copy of this order. In case, if there is no demarcation of the property, the petitioner-Company is directed to demarcate the property within a period of one (1) week time from the date of issue of GST number.
    (ii)The petitioner shall demarcate the property and file the demarcation report on 27-11-2023.
5. With the above direction, this Writ Petition stands disposed of. No costs. Consequently, connected Miscellaneous Petition is closed.
6. List the case before this Court on 27-11-2023 for Reporting Compliance of this order by both parties.

CBIC Instruction No. 05/2023-GST Section 74(1) cannot be invoked merely on account of non-payment of GST

Judgment of the Honourable Supreme Court in the case of Northern Operating Systems Private Limited (NOS).

Instruction No. 05/2023-GST

F. No. CBIC-20004/3/2023-GST

Government of India Ministry of Finance

Department of Revenue

Central Board of Indirect Taxes and Customs

GST Policy Wing

New Delhi, dated the 13th December 202

 

To, All the Principal Chief Commissioners / Chief Commissioners / Principal Commissioners /Commissioners of Central Tax All the Principal Directors General/ Directors General of Central TaX

Madam/Sir,

 

Subject: Judgment of the Hon’ble Supreme Court in the case of Northern Operating Systems Private Limited (NOS).

Attention is invited to the Hon’ble Supreme Court’s judgment dated 19.5.2022 in the case of CC, CE & ST, Bangalore (Adj.) etc. Vs. Northern Operating Systems Private Limited (NOS) in Civil Appeal No. 2289-2293 of 2021 on the issue of nature of secondment of employees by overseas entities to Indian firms and its Service Tax implications. Representations have been received in the Board that, subsequent to the aforesaid judgment, many field formations have initiated proceedings for the alleged evasion of GST on the issue of secondment under section 74(1) of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the ‘CGST Act’).

2.1The matter has been examined by the Board. It appears that the Hon’ble Supreme Court in its judgment inter-alia took note of the various facts of the case like the agreement between NOS and overseas group companies, and held that the secondment of employees by the overseas group company to NOS was a taxable service of ‘manpower supply’ and Service Tax was applicable on the same. It is noted that secondment as a practice is not restricted to Service Tax and issue of taxability on secondment shall arise in GST also. A careful reading of the NOS judgment indicates that Hon’ble Supreme Court’s emphasis is on a nuanced examination based on the unique characteristics of each specific arrangement, rather than relying on any singular test.

2.2Hon’ble Supreme Court in the case of Commissioner of Central Excise, Mumbai Versus M/s Fiat India(P) Ltd in Civil Appeal 1648-49 of 2004 has given the following observation- “ 66. ………..Each case depends on its own facts and a close similarity between one case and another is not enough because either a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.”

2.3It may be relevant to note that there may be multiple types of arrangements in relation to secondment of employees of overseas group company in the Indian entity. In each arrangement, the tax implications may be different, depending upon the specific nature of the contract and other terms and conditions attached to it. Therefore, the decision of the Hon’ble Supreme Court in the NOS judgment should not be applied mechanically in all the cases. Investigation in each case requires a careful consideration of its distinct factual matrix, including the terms of contract between overseas company and Indian entity, to determine taxability or its extent under GST and applicability of the principles laid down by the Hon’ble Supreme Court’s judgment in NOS case.

3.1 It has also been represented by the industry that in many cases involving secondment, the field formations are mechanically invoking extended period of limitation under section 74(1) of the CGST Act.

3.2 In this regard, section 74 (1) of CGST Act reads as follows: “(1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilized by reason of fraud, or any wilful-misstatement or suppression of facts to evade tax, 

3.3 From the perusal of wording of section 74(1) of CGST Act, it is evident that section 74(1) can be invoked only in cases where there is a fraud or wilful mis- statement or suppression of facts to evade tax on the part of the said taxpayer. Section 74(1) cannot be invoked merely on account of non-payment of GST, without specific element of fraud or wilful mis-statement or suppression of facts to evade tax. Therefore, only in the cases where the investigation indicates that there is material evidence of fraud or wilful mis-statement or suppression of fact to evade tax on the part of the taxpayer, provisions of section 74(1) of CGST Act may be invoked for issuance of show cause notice, and such evidence should also be made a part of the show cause notice.

4.The above aspects may be kept in consideration while investigating such cases and issuing show cause notices.

5. Difficulties, if any, in implementation of these instructions may be informed to the Board ([email protected])
 
(Sanjay Mangal)
Principal Commissioner (GST) Copy to:
1.The Joint Secretary, GST Council Secretariat, New Delhi, for circulating the same to all States/ UTs for information and necessary action at their end.
2.Webmaster, CBIC (for uploading under ‘Instructions’ on www.cbic.gov.in).