Griham Food And Hotel Pvt Ltd vs Union Of India And Ors
2023 Latest Caselaw 1430 Cal/2

OD 2

                                 WPO/1053/2023
                       IN THE HIGH COURT AT CALCUTTA
                          Constitutional Writ Jurisdiction
                                 ORIGINAL SIDE


                      GRIHAM FOOD AND HOTEL PVT LTD
                                    VS
                          UNION OF INDIA AND ORS



  BEFORE:
  The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
  Date: 20th June, 2023.



                                                                         Appearance:
                                                                     Mr. Arif Ali, Adv.
                                                             Mr. Anil Agarwal, Adv.
                                                               . . .for the petitioner.

                                                             Mr. Akash Dutta, Adv.
                                                                  . . .for the IRCTC.


       The Court: Although efforts at reconciliation were held, the same has

resulted in an instruction being obtained from the IRCTC Authorities by learned

counsel for the said authority, which indicates that, after getting the order of the

Court, which has a specific mention of refund of GST amount, the IRCTC has to

take an affidavit from the licensee that they have not availed the input credit of

GST, including a complete working supported by the documents in connection

with not claiming the input.

       Learned counsel for the IRCTC places reliance on Section 54 (14)(2)(d) of

the Central Goods and Services Tax Act, 2017. It is stipulated therein that in a
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case where the tax becomes refundable as the consequence of judgment, decree,

order or direction of the Appellate Authority, Appellate Tribunal or any Court, the

date of communication of such judgment, decree, order or direction shall be

relevant for the purpose of refund of GST.

      In the present case, it is contended that in the event this Court passes an

order to the effect that the GST is to be refunded to the petitioner, leave has to be

granted to the IRCTC Authorities to reclaim such amount of GST from the GST

Authorities as well.

      Upon a perusal of the relevant clauses of Explanation(2)(d) to Section

54(14) of the 2017 Act, it is evident that there is no bar for this Court to pass

such an order.     The IRCTC is justified in seeking a complimentary refund

direction from GST Authorities and that the order of refund to the petitioner

should be coupled with a rider that the petitioner files an affidavit indicating that

they have not availed the input credit of GST.

      Learned counsel for the petitioner, on instructions, submits that the

petitioner is agreeable to do so. Accordingly, the petitioner is directed to file an

affidavit indicating that the petitioner has not availed the input credit of GST,

including a complete working supported by relevant documents in connection

with not claiming the input. Such affidavit shall be filed by the writ petitioner on

July 4, 2023, when the matter shall next be listed for passing further orders.

Upon such affidavit being filed, with an advance copy to the respondent/IRCTC,

appropriate final orders will be passed in the writ petition in the light of the above

observations.

(SABYASACHI BHATTACHARYYA, J.)

SP/