Gauhati High Court
Ms Kd Construction And Anr vs Union Of India And Others on 27 June, 2024
Author: Soumitra Saikia
Bench: Soumitra Saikia
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GAHC010129152024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3341/2024
MS KD CONSTRUCTION AND ANR
A PROPRIETORSHIP FIRM REPRESENTED BY ITS PROPRIETOR KRISHNAN
DAS AND R/O NAMGHAR PATH, BASISTHA ROAD, TINIALI, KAMRUP (M),
GUWAHATI-06, ASSAM
VERSUS
UNION OF INDIA AND OTHERS
MINISTRY OF FINANCE, REPRESENTED BY THE SECRETARY TO THE
MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NEW DELHI.
2:CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS
1ST FLOOR
TOWER
NBCC PLAZA
SECTOR-5
PUSHP VIHAR
NEW DELHI- 110017.
3:THE PRINCIPAL COMMISSIONER
STATE GST
KAR BHAWAN
DISPUR
GUWAHATI-06
ASSAM.
4:THE ASSISTANT COMMISSIONER
STATE TAX
GUWAHATI-C-
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Advocate for the Petitioner : MS NAMITA GOGOI
Advocate for the Respondent : DY.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 27.06.2024 Heard Ms. N. Hawelia, learned counsel for the petitioners. Also heard Dr. B. N. Gogoi, learned Standing Counsel, CGST.
2. This writ petition is filed by the petitioner aggrieved by the impugned order dated 29.04.2024 issued by the Assistant Commissioner, GST and Central Excise, Guwahati Division confirming a tax demand of Rs. 3,49,620/- including tax, interest, penalty, fee and others for excess/wrong availment of Input Tax Credit for the financial year 2018-19 in terms of Section 73 of the CGST Act, 2017.
3. The learned counsel for the petitioner assailed the said order on two grounds. At first, the proceedings are time barred and therefore the extension of limitation in terms of Notification issued under Section 168A of the GST Act, 2017 is contrary to the provisions of law.
4. That apart, the learned counsel for the petitioner submits by placing reliance on the Judgment of Kerala High Court rendered in M/S M. Trade Links Vs Union of India [WP(C) 31559 of 2019] submits that the Kerala High Court in a similar matter had upheld the claims of the Input tax Credit benefit in respect of the petitioners therein. It is submitted that this benefit amounts to a vested right of the writ petitioners and therefore, the same cannot be taken away even if there is some delay in compliance of the provisions of the Act.
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5. The learned counsel for the petitioner has further referred to a press note of the recommendations of the 53rd GST Council Meeting to submit that the time limit to avail Input Tax Credit with regard to any invoice or debit note under Section 16(4) of CGST Act, through any GSTR 3B return filed upto 30.11.2021 for the financial year 2017-18, 2018-19, 2019-20 and 2020-21, has been extended upto 30.11.2021.
6. The learned counsel for the petitioner submits that this recommendations of the GST supports the contentions raised by the writ petitioner that the time limit to availed the Input Tax Credit in respect of the financial year in concerned, which is 2018-19 should be deemed to be 30.11.2021. As such, the denial of the benefit of Input Tax Credit by the impugned order dated 29.04.2024 is bad in law and contrary to the recommendations of the GST. She, therefore submits that this impugned order is interfered with, set aside and quashed and during the pendency, adequate interim orders be issued by this Court.
7. Dr. B. N. Gogoi, learned Standing Counsel, CGST on the other hand submits that the Andhra Pradesh High Court in the case of Thirumalakonda Plywoods Vs the Assistant Commissioner-State Tax, Anantapur Circle -1- 2023 (7) TMI 1226 in similar matters had held the withdrawal or denial of ITC benefits cannot be challenged on the ground of violation of the Constitutional provisions and therefore, there is no infirmity in the order passed by the Assistant Commissioner, which is impugned in the present writ petition. The petitioner had failed to comply with the provisions of the Act and therefore by the order the ITC was correctly denied to the writ petitioner. He, however, submits that he has yet to receive complete details of the Recommendations of the 53rd GST Council Meeting.
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8. Considering the issues involved, let Notice be issued returnable by 4 (four) weeks.
9. Since, the learned Standing Counsel has entered appearance on behalf of the respondents, notices waived, however, extra copies of the writ petition be furnished within a period of 1 (one) week from today.
10. Respondents may file their counter affidavit in the meantime.
11. Let this matter also be listed along with other similar matters, which was fixed on 22.07.2024.
12. In the meantime, till the next date fixed, no coercive action shall be taken against the petitioner in terms of the impugned order dated 29.04.2024 passed by the Assistant Commissioner.
JUDGE Comparing Assistant