Jharkhand High Court
M/S Tycoons Industries Private Ltd vs M/S Eastern Coalfields Ltd. Through ... on 2 April, 2024
Author: Navneet Kumar
Bench: Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
W.P. (T) No. 1461 of 2023
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M/s Tycoons Industries Private Ltd.
a private limited company, having its registered office at NH32,
Kuju Main Road, P.O. Kuju, P.S. Ramgarh, District Ramgarh,
Jharkhand through its Director Shri Birendra Nath Choudhary,
aged about 75 years, Son of Nripendra Nath Choudhary,
Resident of H/6, Bhagajatin Colony, P.O. & P.S. Bhagajatin,
District Kolkata, (West Bengal) .... ... Petitioner
Versus
1. M/s Eastern Coalfields Ltd. through Deputy General Manager
(Mining), having its office at O/o Dy. G.M. (Ming.)/Agent, having his
office at Chapapur Colliery, Mugna Area, P.O. Mugma, P.S. Mugma,
District Dhanbad.
2. The Principal Commissioner of CGST & CX, Ranchi
Commissionerate, having his office at Central Revenue Building 5A,
Main Road, P.O. Doranda, P.S. Chutia, District, Ranchi.
3. The Assistant Commissioner of CGST & CX, Ramgarh
Division, Ranchi Commissionerate, having his office at Trinity
Commercial, NH 33 (Old), P.O. Marar, P.S. Marar, District Ramgarh
... ... Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Petitioner : Mr. Ankit Kanodia, Sr. Advocate
: Mr. Deepak Kumar Sinha, Advocate
For the Respondent No. 1 : Mr. Rajesh Lala, Advocate
: Mr. Jaishankar Singh, Advocate
For Respondent Nos. 2 & 3 : Mr. Ranjana Mukherjee,
A.C. to Mr. P.A.S. Pati, Advocate
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Order dated: 2nd April, 2024
Per, Shree Chandrashekhar, J.
This writ petition has been filed with the following prayers:
(A) For declaration that Input Tax Credit (in short as "ITC") of recipient
of tax should not be denied merely on the ground that the invoice is not
reflecting in GSTR-2A of the recipient where tax has already been
discharged by the supplier of goods and/or services as per the provisions
of section 16(2)(c) of Central Goods and Services Tax Act, 2017 (in short
as "CGST Act, 2017").
(B) For declaration that in absence of mechanism of matching and
amendment in details provided under section 42 and 43 of CGST Act,
2017, rectification of GSTR-1 filed by the petitioner could not be done
within the time period prescribed under section 37(3) of the CGST Act,
2017, therefore, petitioner should be provided mechanism to rectify its
GSTR-1 for financial years 2017-18 to 2021-22.
(C) For restraining the Respondent 1 namely M/s Eastern Coalfields Ltd. (
in short as "ECL") in deducting from the payments to be made to the
petitioner for future invoices, the amount of GST not reflecting in GSTR-
2A of ECL for the period 2017-18 to 2021-22, on account of non-
uploading of the invoices in GSTR 1 as B2B invoice by the petitioner
and/or issues in respect to value of tax shown by the petitioner in some
invoices during the period 2017-18 to 2021-22.
(D) For declaration that Circular 183/15/2022-GST dated 27th December
2022 (Annexure-10) issued by the Central Board of Indirect Taxes and
Customs (in short as "CBIC"), allowing ITC to the recipient even where
invoices is not reflecting in FORM GSTR-2A, under the circumstances
stated there under for FY 2017-18 and 2018-19 is equally applicable for
financial years 2019-20, 2020-21 and 2021-22.
(E) For declaration that ITC of the recipient should not be denied where
invoices has been duly declared by the supplier in its Annual Return and
tax is discharged through FORM DRC-03 in terms of the guidelines issued
in form of press release by CBIC dated 03.07.2019 (Annexure 2).
(F) For declaration that the substantive benefit of availing ITC should not
be denied due to procedural lapse.
2. The petitioner-Firm pleads that it is incorporated under the
Companies Act, 2013 and engaged in the business of works contract
services, goods transportation agency services, cargo handling services etc.;
and is duly registered under the Central Goods and Services Tax Act, 2017
(in short, CGST Act) and under the Jharkhand Goods and Services Tax Act,
2017 vide GST Registration No.20AAACT5873H1ZG. It had a contract
with M/s Eastern Coalfields Ltd., (in short "ECL") for providing support
services for coal mining for an agreed consideration amount. According to
the petitioner-Firm, for the financial years 2017-18, 2018-19, 2019-20,
2020-21 and 2021-22 tax invoices were raised and the ECL availed ITC on
such invoices as per Section 16 of the CGST Act, 2017. However, while
preparing annual returns in Form GSTR-9 and reconciliation statements in
Form GSTR-9C for the periods 2017-18, 2018-19, 2020-21 and 2021-22, it
could detect that few of the invoices for Rs.96,01,598/- raised by it to ECL
were not reported or reported as Business to Customer category (in short as
"B2C") instead of Business to Business category (in short as "B2B"). The
petitioner-Firm has set up a case that such mistake occurred due to clerical
error in preparing the monthly returns. The petitioner-Firm has produced
such details in a tabular form in paragraph No.12 of the writ petition which
according to it were submitted as per the guidelines issued by the Central
Board of Indirect Taxes and Customs (in short "CBIC"). The petitioner-Firm
has further stated that it paid Rs.60,40,301/- through Form GST DRC-03 or
Form GSTR-3B against the total amount of Rs.96,01,598/- and, as regards
the balance amount, it makes an excuse for non-payment on the ground of
financial distress due to COVID-19.
3. The details provided in paragraph 12 of the writ petition are
extracted herein below:
"12. That the petitioner while preparing and filing its annual return
(GSTR-9) and reconciliation statement (GSTR-9C) for the periods 2017-
18, 2018-19, 2020-21 and 2021-22, found that certain invoices involving
tax amount of Rs.96,01,598/- raised by it to ECL due to some clerical
error was either not reported or was reported as Business to Customer
category (in short as "B2C") instead of Business to Business category (in
short as "B2B") in monthly returns and therefore as per above guidelines
of CBIC, these supplies were correctly reported in annual return (GSTR-9)
and reconciliation statement (GSTR-9C) filed for respective periods.
Details of such invoices is tabulated thereunder."
Table A
Financial Invoice Value Tax GSTR-1 GSTR- GSTR- Tax
year Number 3B 9/9C Discharged
In
2017-18 9th 1,1985,789 21,57,442 Reported B2C Reported Reported GSTR-3B
2017-18 10th 42,50,101 7,65,018 Not Reported Not Reported DRC-03
Reported
2017-18 11th 64,88,746 11,67,974 Not Reported Not Reported DRC-03
Reported
2017-18 12th 60,06,321 10,81,138 Not Reported Not Reported DRC-03
Reported
2018-19 6th RA 1,74,900 31,482 Not Reported Not Reported DRC-03
Reported
2018-19 7th RA 1,20,520 21,694 Not Reported Not Reported DRC-03
Reported
2018-19 8th RA 1,39,376 25,088 Not Reported Not Reported DRC-03
Reported
2018-19 9th RA 2,56,475 46,166 Not Reported Not Reported DRC-03
Reported
2018-19 10th RA 2,24,077 40,334 Not Reported Not Reported DRC-03
Reported
2018-19 11th RA 10,98,959 1,97,813 Not Reported Not Reported
Reported
2018-19 12th RA 9,09,730 1,63,751 Not Reported Not Reported
Reported
2018-19 18th 85,83,507 15,45,031 Not Reported Not Reported
Reported
2018-19 13th RA 13,35,459 2,40,383 Not Reported Not Reported GSTR-3B
Reported
2018-19 14th RA 14,04,553 2,52,820 Reported Reported Reported GSTR-3B
(lower valued)
2020-21 25th 52,81,362 9,50,645 Not Reported Not Reported
Reported
2020-21 26th 41,07,188 7,39,294 Not Reported Not Reported
Reported
2021-22 27th 9,75,153 1,75,528 Excess Excess Reported GSTR-3B
Reported Reported
Total 5,33,42,216 96,01,598
4. The prime reason for filing this writ petition was that the ECL
had started deductions from the running bills of the petitioner-Firm on the
ground that it failed to deposit the tax liability to the tune of Rs.96,01,598/-.
The petitioner-Firm responded to the letter dated 24th August, 2022 from the
ECL through the communications dated 18.08.2022 and 05.09.2022 but the
ECL made further deductions amounting to Rs.32,00,000/- from the
payments due against the bills dated 03.10.2022, 09.11.2022 and
30.01.2023. Therefore, seeking rectification in Form GSTR-1, the
petitioner-Firm made a representation on 11.02.2023 to the Goods and
Services Tax Network and its jurisdictional Departmental Officers so that
the error can be corrected but his representation seeking rectification
remained unattended and, therefore, it had to approach this Court.
5. In reply, the respondent Nos.2 and 3 have taken a stand that the
details provided by the petitioner-Firm in paragraph No.12 of the writ
petition were not found correct upon verification of the particulars in Form
GST DRC-03. The observation of the Revenue is that the date and reference
of the details in Form GST DRD-03 and Form GSTR-3B as given under
Table-A could not be ascertained because one to one co-relation between the
invoice and applicable tax paid was not established.
6. In its counter affidavit, the ECL took a stand that the invoices
showing 2A/2B pertained to financial year 2017-18, 2018-19, 2020-21 and
2021-22 and the time limit for claiming ITC for those periods had already
expired. Therefore, mere filing of the returns shall not avail any benefit to
the petitioner-Firm. The specific stand taken by the respondent No.1 is re-
produced below:-
"7. That M/s Eastern Coalfields Limited, Mugma Area [GSTIN
20AAACE7590E1ZX] having their jurisdictional circle at Chirkunda
Circle, Dhanbad. Being one of biggest Taxpayer of Chirkunda Circle /
State of Jharkhand, they examine the ECL Input and Output Tax very
closely. Chirkunda Circle scrutinized ECL's Input Tax Credit time to time
and instructs to reverse all Input Credit Utilization for all those entries
which are not showing 2A/2B and reversal of Input Tax Credit attracts
interest @ 24% per annum.
As such to safeguard the interest of the Company, the ECL utilizes only
Input Tax Credit on invoices which are showing in 2A/2B.
In present case of M/s Tycoon Industries Pvt. Ltd. Input Tax Credit to the
extent of Rs. 96,01,598/- was utilized by the ECL till date. After giving
ample time to settle the situation to show entries / invoices details in
2A/2B, the ECL Company started recovery from the concerned party and
till date an amount of Rs. 51,00,000/- have already been recovered."
7. The primary object behind the CGST Act is levy and collection
of tax on intra State supply of goods or services and the matters connected
therewith or incidental thereto. However, it is understood that the CGST
Act, 2017 is a complete Code and the aggrieved party may loose certain
benefits by operation of the provisions thereunder. Section 39 of the CGST
Act provides that every registered person other than an input service
distributor or a non-resident taxable person shall for every calendar month
or part thereof furnish a return of inward and outward supply of goods and
service. There are other requirements/ stipulations under section 39 which
every registered person/Firm is required to comply. Sub-section (2) to
Section 16 lays down the conditions for availing of the Input Tax Credit by
every registered person, and one of the conditions is that the details of the
invoice or debit note was furnished by supplier in the statement of outward
supplies and such details have been communicated to the recipient of such
invoice or debit note in the manner specified in Section 37. Under sub-
section (1) to Section 37, the details of outward supplies of the goods and
services or both affected during a tax period must be furnished on or before
the tenth day of the month succeeding the tax period. Proviso to sub-section
(3) provides that no rectification of error or omission in respect of the details
furnished by the registered person of the outward supplies under sub-section
(1) shall be allowed after the thirtieth day of November following the end of
the financial year to which such details pertain.
8. The provisions under sections 16 and 37 of the CGST Act, 2017
lay down the mechanism as under:
16. Eligibility and conditions for taking input tax credit.--(1) Every
registered person shall, subject to such conditions and restrictions as may
be prescribed and in the manner specified in Section 49, be entitled to take
credit of input tax charged on any supply of goods or services or both to
him which are used or intended to be used in the course or furtherance of
his business and the said amount shall be credited to the electronic credit
ledger of such person.
(2) Notwithstanding anything contained in this section, no registered
person shall be entitled to the credit of any input tax in respect of any
supply of goods or services or both to him unless,--
(a) he is in possession of a tax invoice or debit note issued by a supplier
registered under this Act, or such other tax paying documents as may be
prescribed;
(aa) the details of the invoice or debit note referred to in clause (a) has
been furnished by the supplier in the statement of outward supplies and
such details have been communicated to the recipient of such invoice or
debit note in the manner specified under Section 37;
(b) he has received the goods or services or both;
Explanation.--For the purposes of this clause, it shall be deemed that the
registered person has received the goods or, as the case may be, services--
(i) where the goods are delivered by the supplier to a recipient or any other
person on the direction of such registered person, whether acting as an
agent or otherwise, before or during movement of goods, either by way of
transfer of documents of title to goods or otherwise;
(ii) where the services are provided by the supplier to any person on the
direction of and on account of such registered person.
(ba) the details of input tax credit in respect of the said supply
communicated to such registered person under Section 38 has not been
restricted;
(c) subject to the provisions of Section 41 * * *, the tax charged in respect
of such supply has been actually paid to the Government, either in cash or
through utilisation of input tax credit admissible in respect of the said
supply; and
(d) he has furnished the return under Section 39:
Provided that where the goods against an invoice are received in lots or
instalments, the registered person shall be entitled to take credit upon
receipt of the last lot or instalment:
Provided further that where a recipient fails to pay to the supplier of goods
or services or both, other than the supplies on which tax is payable on
reverse charge basis, the amount towards the value of supply along with
tax payable thereon within a period of one hundred and eighty days from
the date of issue of invoice by the supplier, an amount equal to the input
tax credit availed by the recipient shall be paid by him along with interest
payable under Section 50, in such manner as may be prescribed:
Provided also that the recipient shall be entitled to avail of the credit of
input tax on payment made by him to the supplier of the amount towards
the value of supply of goods or services or both along with tax payable
thereon.
(3) Where the registered person has claimed depreciation on the tax
component of the cost of capital goods and plant and machinery under the
provisions of the Income-tax Act, 1961 (43 of 1961), the input tax credit
on the said tax component shall not be allowed.
(4) A registered person shall not be entitled to take input tax credit in
respect of any invoice or debit note for supply of goods or services or both
after the thirtieth day of November following the end of financial year to
which such invoice or * * * debit note pertains or furnishing of the
relevant annual return, whichever is earlier:
Provided that the registered person shall be entitled to take input tax credit
after the due date of furnishing of the return under Section 39 for the
month of September, 2018 till the due date of furnishing of the return
under the said section for the month of March, 2019 in respect of any
invoice or * * * debit note for supply of goods or services or both made
during the financial year 2017-18, the details of which have been uploaded
by the supplier under sub-section (1) of Section 37 till the due date for
furnishing the details under sub-section (1) of said section for the month
of March, 2019.
37. Furnishing details of outward supplies.--(1) Every registered
person, other than an Input Service Distributor, a non-resident taxable
person and a person paying tax under the provisions of Section 10 or
Section 51 or Section 52, shall furnish, electronically, subject to such
conditions and restrictions and in such form and manner as may be
prescribed, the details of outward supplies of goods or services or both
effected during a tax period on or before the tenth day of the month
succeeding the said tax period and such details shall, subject to such
conditions and restrictions, within such time and in such manner as may
be prescribed, be communicated to the recipient of the said supplies:
***
Provided that] the Commissioner may, for reasons to be recorded in
writing, by notification, extend the time limit for furnishing such details
for such class of taxable persons as may be specified therein:
Provided further that any extension of time limit notified by the
Commissioner of State tax or Commissioner of Union territory tax shall be
deemed to be notified by the Commissioner.
(2) * * *
(3) Any registered person, who has furnished the details under sub-section
(1) for any tax period * * *, shall, upon discovery of any error or omission
therein, rectify such error or omission in such manner as may be
prescribed, and shall pay the tax and interest, if any, in case there is a short
payment of tax on account of such error or omission, in the return to be
furnished for such tax period:
Provided that no rectification of error or omission in respect of the details
furnished under sub-section (1) shall be allowed after 99[the thirtieth day
of November] following the end of the financial year to which such details
pertain, or furnishing of the relevant annual return, whichever is earlier.
Provided further that the rectification of error or omission in respect of the
details furnished under sub-section (1) shall be allowed after furnishing of
the return under Section 39 for the month of September, 2018 till the due
date for furnishing the details under sub-section (1) for the month of
March, 2019 or for the quarter January, 2019 to March, 2019.
(4) A registered person shall not be allowed to furnish the details of
outward supplies under sub-section (1) for a tax period, if the details of
outward supplies for any of the previous tax periods has not been
furnished by him:
Provided that the Government may, on the recommendations of the
Council, by notification, subject to such conditions and restrictions as may
be specified therein, allow a registered person or a class of registered
persons to furnish the details of outward supplies under sub-section (1),
even if he has not furnished the details of outward supplies for one or
more previous tax periods.
(5) A registered person shall not be allowed to furnish the details of
outward supplies under sub-section (1) for a tax period after the expiry of
a period of three years from the due date of furnishing the said details:
Provided that the Government may, on the recommendations of the
Council, by notification, subject to such conditions and restrictions as may
be specified therein, allow a registered person or a class of registered
persons to furnish the details of outward supplies for a tax period under
sub-section (1), even after the expiry of the said period of three years from
the due date of furnishing the said details.
Explanation.--For the purposes of this Chapter, the expression "details of
outward supplies" shall include details of invoices, debit notes, credit
notes and revised invoices issued in relation to outward supplies made
during any tax period.
9. Mr. Ankit Kanodia, Sr. counsel for the petitioner-Firm referred
to the decision in "M/s Mahalaxmi Infra Contract Ltd. Vs. Goods and
Services Tax Council & Ors., in W.P.(T) No.2478 of 2021", to submit that
the grievance raised by the petitioner-Firm is squarely cover by the decision
of this Court. It is submitted that the rectification exercise shall not entail
any tax liability and, therefore, the Revenue cannot refuse to permit
rectification by the petitioner-Firm.
10. In "M/s Mahalaxmi Infra Contract Ltd. Vs. Goods and Services
Tax Council & Ors., in W.P.(T) No.2478 of 2021", this Court has held as
under:-
"12. In the instant case it appears that on account of an inadvertent error,
the entry relating to Tax Invoice No. 01/2018- 19 dated 17th January 2019
could not be reflected in the GSTR-1 filed by the petitioner against the
GSTIN of Eastern Coalfields Limited (GSTIN No.
20AAACE7590E3ZX). Instead it was quoted in the GSTIN of Respondent
No.6 MIPL-NKAS (JV) [GSTIN No.20AAEAM0162G1Z9] which was
not the recipient of such supplies. Though, Respondent No.5 availed of
such input tax credit bona fide believing that it had paid the taxes against
such invoices, but on realizing the same reversed the entries in May 2022
as the same we are not reflected in his GSTR-2A return for the said period.
The said entries, though reflected in the GSTR-2A of Respondent No. 6
inadvertently, were not availed by Respondent No.6 and rightly so, as it
had not received any such supplies against the tax invoice in question. It
further appears that the mechanism conceived under substituted Rule 59
specifically, sub rule (3) and (4) and Rule 60 (1) having not put into place
by notification of form GSTR-2 and GSTR1A the petitioner could not
discover such error in the absence of GSTR-2 being available to be filed
by the recipient Respondent No.5. In the absence of notification of such
forms GSTR-2 and GSTR-1A the Respondent No.6 could also not submit
the relevant form GSTR-2 indicating such incorrect entries in its GSTR-
2A due to incorrect entries in GSTR-1 by the petitioner. Since the
mechanism provided for matching of details of inward supply furnished
by a registered person or outward supply not being rightly declared by the
supplier in his returns GSTR-1, not being place, such discrepancy could
not be communicated to petitioner. The relevant form GST-MIS 1 and
GST-MIS 2 as conceived under section 70 and 71 read with section 42
(prior to its omission under notification no.19/2022 and 18/2022 vide
notification dated 28.09.2022 of CBIC) also having not been prescribed,
the online mechanisms for discovery and correction of such mistake either
by the supplier or by the recipient or both, could not take place. Petitioner
therefore, appears to have a valid reason in not being able to rectify the
entries in the GSTR-1 23 returns of March 2019 in the returns of
September 2019 to be filed by 20th of October 2019 or the date of filing of
the annual return, whichever is earlier. The error apparently came to the
notice of the petitioner only during finalization of the accounts with
respondent no.5 who had also by that time detected availment of ITC in
lieu of the Tax Invoice No. 1/2018- 19 dated 17th January 2019, though
not reflected in its GSTR-2. Petitioner approached this court immediately
thereafter on 9th July 2022 seeking a direction upon the respondent GSTN
to allow it to rectify returns. The detailed structured mechanism conceived
under the JGST Act and the rules framed thereunder having not been put
into place, the online portal did not permit such correction by any
aggrieved registered person on its own. Therefore, the necessity for such
an aggrieved registered person to approach this court under Article 226 of
the Constitution of India. It is not in dispute that such incorrect entries in
GSTR-1by Petitioner for the period January 2019 filed in March 2019
were not going to entail any additional tax impact. The rectification
exercise would remain revenue neutral. Such TRAN I forms have been
allowed to be filed online or manually in cases where TRAN-1 forms were
not filed within the time prescribed by certain registered persons/
assessees. The judgment relied upon by the learned counsel for the
petitioner are to that effect.
13. Having gone through the decisions cited in support by learned counsel
for the petitioner and that the instant case does not present any additional
tax impact, or loss of revenue for the State Exchequer and, in fact, such
correction of relevant returns in case of the petitioner i.e.,GSTR-1, GSTR-
2A in case of the respondent no. 5 and 6 would allow the respondent no.5
to rightly avail the ITC against the tax paid under Tax Invoice number 1/
2018-19 dated 17th January 2019 issued by the petitioner, we are of the
considered view that interest of justice would be served if the petitioner is
allowed to make the necessary correction in GSTR-1 form for January
2019. Such correction, if does not entail technical difficulties by the
GSTN, may be allowed to be made online by GSTN by opening the portal
for a limited period upon due communication to the petitioner and
respondent no.5 and 6 as it would reflect corresponding correction in their
GSTR-2A form for the relevant period. If such a course is not possible to
be done online for technical reasons, the GSTN could allow the petitioner
to make such corrections through manual mode. Let such correction be
allowed to be made within 24 a period of 8 weeks from the date of receipt
of this order."
11. After having considered the materials on record and the rival
submissions, we have come to a conclusion that no relief can be granted to
the petitioner-Firm. As to the prayers made under para 1(A) & 1(B) in the
writ petition, there shall be issues regarding limitation and implied
knowledge to the petitioner-Firm. In "Union of India Vs. Bharti Airtel Ltd.,
& Ors." (2022) 4 SCC 328" the Hon'ble Supreme Court held as under:
"48. As per the scheme of the 2017 Act, it is noticed that registered person
is obliged to do self-assessment of ITC, reckon its eligibility to ITC and of
OTL including the balance amount lying in cash or credit ledger primarily
on the basis of his office record and books of accounts required to be
statutorily preserved and updated from time to time. That he could do even
without the common electronic portal as was being done in the past till
recently pre-GST regime. As regards liability to pay OTL, that is on the
basis of the transactions effected during the relevant period giving rise to
taxable event. The supply of goods and services becomes taxable in
respect of which the registered person is obliged to maintain agreement,
invoices/challans and books of accounts, which can be maintained
manually/electronically. The common portal is only a facilitator to feed or
retrieve such information and need not be the primary source for doing
self-assessment. The primary source is in the form of agreements,
invoices/challans, receipts of the goods and services and books of
accounts which are maintained by the assessee manually/electronically.
These are not within the control of the tax authorities. This was the
arrangement even in the pre-GST regime whilst discharging the obligation
under the concerned legislation(s). The position is no different in the post-
GST regime, both in the matter of doing self-assessment and regarding
dealing with eligibility to ITC and OTL. Indeed, that self-assessment and
declarations would be any way subject to verification by the tax
authorities. The role of tax authorities would come at the time of
verification of the declarations and returns submitted/filed by the
registered person.
49. Section 16 of the 2017 Act deals with eligibility of the registered
person to take credit of input tax charged on any supply of goods or
services or both to him which are used or intended to be used in the course
or furtherance of his business. The input tax credit is additionally recorded
in the electronic credit ledger of such person under the Act. The
"electronic credit ledger" is defined in Section 2(46) and is referred to in
Section 49(2) of the 2017 Act, which provides for the manner in which
ITC may be availed. Section 41(1) envisages that every registered person
shall be entitled to take credit of eligible input tax, as self-assessed, in his
return and such amount shall be credited on a provisional basis to his
electronic credit ledger.
50. As aforesaid, every assessee is under obligation to self-assess the
eligible ITC under Sections 16(1) and 16(2) and "credit the same in the
electronic credit ledger" defined in Section 2(46) read with Section 49(2)
of the 2017 Act. Only thereafter, Section 59 steps in, whereunder the
registered person is obliged to self-assess the taxes payable under the Act
and furnish a return for each tax period as specified under Section 39 of
the Act. To put it differently, for submitting return under Section 59, it is
the registered person who has to undertake necessary measures including
of maintaining books of accounts for the relevant period either manually
or electronically. On the basis of such primary material, self-assessment
can be and ought to be done by the assessee about the eligibility and
availing of ITC and of OTL, which is reflected in the periodical return to
be filed under Section 59 of the Act."
12. According to Mr. Ankit Kanodia, the learned Sr. counsel for the
petitioner-Firm, a notification was issued under which the time for filing the
return was extended up to 7th February 2020, but then, there are further
periods of dispute starting from 2018-19, 2020-21 & 2021-2022. In "M/s
Mahalaxmi Infra Contract Ltd.", the mistake in the entries pertained to just
one Tax Invoice and there was no dispute on facts. M/s Mahalaxmi Infra
Contract Ltd. had made the entry in respect to the Tax Invoice dated 17 th
January 2019 in the GSTR-1 against the GSTIN of another entity which was
not the recipient of the supply. Therefore, the GSTR-2A return of the said
entity reflected the same but it did not avail the Input Tax Credit for that
entry. However, the ECL which was the recipient of the supply against tax
invoice dated 17th January 2019 availed the Input Tax Credit for such
transaction but reversed the entry on realizing the mistake. This was the
background in which the writ Court permitted M/s Mahalaxmi Infra
Contract Ltd. rectification in the return filed by it. Whereas, in the present
case, even payment of the entire liability was not made by the petitioner-
Firm. Mr. Ankit Kanodia, the learned Sr. counsel for the petitioner-Firm has
made a statement in the Court that now the entire liability has since been
paid, by the petitioner-Firm. May be that is the correct factual aspect but for
that reason the powers under Article 226 of the Constitution of India cannot
be exercised ignoring the statutory regime under the CGST.
13. The writ Court while exercising its jurisdiction and powers
under Article 226 of the Constitution of India shall remain alive to the
considerations whether the relief sought is barred by any law or the relief if
granted shall be in the public interest. The writ Court shall also remain
conscious that it has to adjudicate the prayer made in the main petition and
should not travel beyond that merely because some statement of fact has
been made or brought on record by filing supplementary affidavit. As we
glance through the writ pleadings, the petitioner-Firm did not provide
correct and sufficient informations, and this is not correct to say that the
petitioner-Firm could know about the mistake sometime in 2022.
14. For the aforesaid reasons, we are not inclined to entertain this
writ petition which is, accordingly, dismissed.
(Shree Chandrashekhar, A.C.J.)
D.S./S.Das (Navneet Kumar, J.)
