Kerala High Court
Muhammed Abdul Saini vs State Tax Officer on 6 November, 2024
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2024:KER:82522
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024/15TH KARTHIKA,
1946
WA NO. 1739 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.4495
OF 2023 OF HIGH COURT OF KERALA
APPELLANT:
MUHAMMED ABDUL SAINI,
AGED 40 YEARS,
PROPRIETOR, M/S. SALEEMS SUPER MARKET,
MURIKKASSERY, IDDUKKI, PIN - 685 604.
BY ADV K.KRISHNA
RESPONDENTS:
1 STATE TAX OFFICER,
STATE GST DEPARTMENT, CHERUTHONI AT IDDUKKI,
PIN - 685 609.
2 UNION OF INDIA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
MINISTRY OF FINANCE (DEPARTMENT OF REVENUE),
WA.No.1739 of 2024
2024:KER:82522
-2-
NORTH BLOCK, NEW DELHI, PIN - 110 001.
3 CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS
GST POLICY WING, NORTH BLOCK, NEW DELHI ,
REPRESENTED BY PRINCIPAL COMMISSIONER (GST).,
PIN - 110 001.
4 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
TAXES DEPT., GOVT. SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695 001.
GP RESMITHA RAMACHANDRAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
06.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WA.No.1739 of 2024
2024:KER:82522
-3-
JUDGMENT
Dr. A.K. Jayasankaran Nambiar, J.
This Writ Appeal impugns the judgment dated
12.06.2024 of a learned Single Judge in W.P.(C).No.4495 of
2023. The Writ Petition itself was preferred inter alia
challenging the provisions of Section 16(2)(c) of the
CGST/SGST Act to the extent it insisted that the assessee
availing input tax credit had to ensure that the supplier of the
inputs of the assessee had actually paid his output tax to the
government. The learned Single Judge had rejected the
challenge to the statutory provision in a batch of Writ
Petitions, and a Division Bench comprised of one of us
(Hon'ble Dr..Justice A.K. Jayasankaran Nambiar) had also
affirmed the said judgment in Nahasshukoor v. Assistant
Commissioner II Circle, Alappuzha and Others [2024
123 GSTR 44 (KER)]. Under the circumstances, we find that
the principal issue decided by the learned Single Judge has
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received the approval of the Division Bench and the Writ
Appeal to the extent it impugns the judgment of the learned
Single Judge on the said issue has necessarily to fail.
2. We take note however of the submission of
the learned counsel for the appellant that at the time of filing
the Writ Petition, the mistake occasioned by the assessee
while entering figures in Form GSTR-3B could not be brought
to the notice of the learned Single Judge, and was not
therefore urged at the time of hearing of the Writ Petition.
However, the learned Single Judge while disposing the Writ
Petition has granted liberty to the petitioner to claim the
benefit of two circulars namely, Circular No.183/15/2022-GST
dated 27.12.2022 and Circular No. 193/5/2023- GST dated
17.07.2023 by making that claim within one month from the
date of the judgment before the appropriate authority. A
direction has also been issued to the said authority to examine
the claim of the appellant and process the claim. It is the
submission of the learned counsel for the appellant that he
may be given an opportunity to bring to the notice of the
assessing authority the mistakes that were occasioned while
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claiming input tax credit so that the authority concerned can
look into these aspects also along with the claims based on
the circulars aforementioned.
We are inclined to accede to the prayers of the
learned counsel for the appellant and accordingly, while
dismissing the Writ Appeal in its challenge against the
statutory provisions, we extend by one month from today, the
time limit granted by the learned Single Judge to the
appellant herein for claiming the benefit of the two circulars
aforementioned as also for raising the additional issue
projected by them with regard to the errors that crept into the
Form GSTR-3B, before the adjudicating authority.
Accordingly, if the appellant herein approaches the assessing
authority concerned within a month from today pointing out
the irregularities aforementioned, then the said assessing
authority shall consider the application of the appellant as one
that is preferred pursuant to the liberty granted by the
learned Single Judge and proceed to adjudicate the same
expeditiously. Save for this limited modification, the rest of
the findings of the learned Single Judge are upheld and the
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Writ Appeal disposed accordingly.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
ADS/06.11.24
2024:KER:82522
PETITIONER ANNEXURES
ANNEXURE A COPY OF NOTICE IN FORM GST ASMT-10
ISSUED BY THE 1ST RESPONDENT DATED
23-06-2020.
ANNEXURE B COPY OF REPLY FILED BY THE APPELLANT
DATED 05-08-2020.
ANNEXURE C COPY OF REPLY FILED BY THE APPELLANT
DATED 28-08-2021.
