Madras High Court
Alagu Kannan vs The Assistant Commissioner ... on 4 July, 2023
W.P.(MD).No.16102 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.07.2023
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No. 16102 of 2023
and
W.M.P(MD)Nos. 13491 & 13492 of 2023
Alagu Kannan ... Petitioner
Vs.
The Assistant Commissioner (ST)(FAC),
Tenkasi Circle,
Tenkasi – 627 811. ... Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorari, calling for the records leading to
the issuance of order bearing reference GSTIN
33ARTPA7004Q1ZH/2017-18, dated 09.03.2023 passed by the
respondent and quash the same.
For Petitioner : M/s.J.Adithya Reddy
For Respondent : Mr.B.Saravanan,
Additional Government Pleader
ORDER
By consent of both parties, this writ petition is taken up for
final disposal at the stage of admission itself.
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W.P.(MD).No.16102 of 2023
2. This writ petition is filed challenging the impugned
Assessment order, dated 09.03.2023.
3. The contention of the petitioner is under section 140 of
GST enactments the petitioner is entitled to transition of credits available
under the erstwhile indirect tax enactments, carried forward in the last
returns or inputs held in stock or inputs held in semi-finished goods held
in stock by filing Form TRAN-1 within stipulated time. However, while
recording the figures, inadvertently specified the CENVAT credit accrued
on purchase of inputs under TNVAT Act. The credit should have been
recorded in column 7 (a) of TRAN-1 Form, but inadvertently recorded in
column 5(c) Act. The respondent had issue notice dated 03.10.2019
stating that there was no ITC available in last returns filed under TNVAT
and hence the credit in TRAN-1 is ineligible. After receiving this notice
only then the petitioner came to know of the said mistake. Thereafter the
respondent confirmed the SCN vide order dated 06.01.2020. Further the
respondent has rectified the assessment order and passed a rectified order
dated 21.07.2020 to reduce the equal amount of penalty to Rs.10,000/- As
soon as the petitioner came to know about the assessment order, had filed
a rectification application under section 161 and the respondent without
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W.P.(MD).No.16102 of 2023
giving personal hearing for rectification application has passed the
impugned order. The respondents have rejected the same on the ground of
limitation and error is not self-evident.
4. Heard M/s.J.Adithya Reddy, the Learned Counsel for the
petitioner and Mr.B.Saravanan, Additional Government Pleader for the
respondents and perused the records.
5. The Learned Counsel appearing for the petitioner
submitted that the application is filed well within the time as per the order
of the Hon’ble Supreme Court in Suo Motu application No.21 of 2022 in
Misc.Appl.No.665 of 2021 in Suo Motu Writ Petition (Civil) No.3 of
2020 and as per this order the period from 15.03.2020 till 28.02.2022
ought to be excluded. It is seen from the records that the assessment order
was passed on 06.01.2020 and the rectification application ought to have
been filed on or before 06.04.2020. However, the period from 15.03.2020
to 06.04.2020 ought to be excluded based on the suo motu extension
order. Then the 90 days ought to be calculated from 01.03.2022, wherein
the time is available until 30.05.2022, but the petitioner had filed the
application on 02.09.2020 itself, which is within the period of limitation.
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W.P.(MD).No.16102 of 2023
Therefore, the impugned order stating that the rectification application is
filed beyond the period of limitation is incorrect.
6. The Learned counsel for the petitioner relied on the
judgment rendered by this Court in W.P.No.1847 of 2022, vide order
dated 10.02.2022 has held as under:
24. Insofar as the limitation point is concerned, it has
been made explicitly clear in the said orders referred to above.
It is brought to the notice of this Court by the learned counsel
for the petitioner in respect of the limitation, there could be no
much quarrel from respondent side also as these all are the
materials on records. Therefore, the limitation insofar as the
petitioner is concerned, is saved by the orders of the Hon'ble
Supreme Court of India, hence, on that ground mainly if the
rectification application is rejected through the impugned
order, the same shall not stand in the legal scrutiny. Insofar as
the other reasons given of course on merits according to the
respondent is concerned, the language used in Section 161 of
the Act is that “without prejudice to the provisions of Section
160 of the Act and notwithstanding anything contained in any
other provisions of this Act”. The words “notwithstanding
anything contained in any other provisions of this Act” covers
the entire provisions of the Act with the said non-abstante
clause thereby all other issues or all other mandates under
various provisions of the Act stand excluded when rectification
proceedings initiated either suo motu or at the instance of any
officer of the respondent/revenue or at the instance of an
application filed in this regard by the affected party within
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W.P.(MD).No.16102 of 2023
three months period. In view of the saving of the limitation,
since the application for rectification has been filed by the
petitioner, the same shall be independently considered
notwithstanding anything contained in any other provisions of
the Act. Therefore, the earlier show cause notices or notices for
personal hearing issued to the petitioner, for which, the
petitioner has not responded etc., cannot be cited as a reason
for rejecting the rectification application as has been done in
the impugned order.
25. Therefore, the said reason also in the considered
opinion of this Court in view of the language used in Section
161 will not stand.
26. Therefore, all these reasons cited in the impugned
order since cannot stand in the legal scrutiny, this Court has
no hesitation to hold that the impugned order is liable to be set
aside.
27. In the result, the impugned order is set aside. The
matter is remitted back to the respondent for reconsideration.
While reconsidering the same, the respondent shall borne in
mind the independent nature of the decision making process
with regard to the alleged rectification of error anything
apparently on the face of the record to be rectified on its own
merits, wherein after giving an opportunity of being heard to
the petitioner, the rectification application shall be accordingly
decided and disposed of within a period of six weeks.
7. Following the same, this Court is inclined to allow this
writ petition and the impugned order is quashed. Consequently, the
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W.P.(MD).No.16102 of 2023
respondent is directed to reconsider the case of the petitioner in the light
of the Section 161 of the GST Enactments and in the light of the
Judgment of the Hon'ble Supreme Court stated supra by granting
opportunity of personal hearing and the said exercise shall be completed
within a period of eight weeks from the date of receipt of the copy of the
order.
8. Accordingly, this Writ Petition is allowed in above terms.
The impugned order, dated 09.03.2023 is hereby quashed. No Costs.
Consequently, W.M.P(MD)No.13491 of 2023 is allowed and
W.M.P(MD)No.13492 of 2023 is closed.
Index : Yes / No 04.07.2023
Internet : Yes
ksa
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.16102 of 2023
To
The Assistant Commissioner (ST)(FAC),
Tenkasi Circle,
Tenkasi – 627 811.
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.16102 of 2023
S.SRIMATHY, J
ksa
Order made in
W.P.(MD)No.16102 of 2023
04.07.2023
https://www.mhc.tn.gov.in/judis
