Madras High Court
M/S.Cholan Super Market vs The Superintendent Of Gst & Central ... on 6 September, 2024
Bench: R.Suresh Kumar, C.Saravanan
W.A.No.2644 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.09.2024
CORAM :
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
AND
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.A.No.2644 of 2021
and C.M.P.No.17214 of 2021
M/s.Cholan Super Market,
Rep. by its Managing Director, S.Hajanajubudeen,
No.92/1, Thiruvarur Main Road, Lakshmangudi,
Thiruvarur 614 102. .. Appellant
-vs-
The Superintendent of GST & Central Excise,
Thiruvarur Range, No.12-A, Kumaran
Kovil Street, Thiruvarur - 610 002. .. Respondent
Prayer: Appeal filed under Clause 15 of the Letters patent against the order
dated 14.09.2021 passed in W.P.No.19189 of 2021 on the file of this Court.
For the Appellant : Mr.A.Chandrasekaran
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W.A.No.2644 of 2021
For the Respondents : Mr.Rajendran Raghavan
Sr. Standing Counsel
*****
JUDGMENT
(Judgment of the Court was made by C.Saravanan, J.)
This intra-court appeal is against the impugned order dated
14.09.2021 passed by the learned Single Judge in W.P.No.19189 of 2021.
2. By the aforesaid order, the learned Single Judge has dismissed the
writ petition filed by the appellant herein challenging the correctness of the
Order-in-original No.1/2021-GST dated 18.06.2021. The relevant portion of
the impugned order reads as under:-
"19. If the writ petitioner is so advised and if the writ
petitioner chooses to file Statutory appeal, the same shall be
heard by the Appellate Authority on its own merits and in
accordance with law, uninfluenced by any tertiary or traces of
opinion or view on merits that may appear to have been
expressed in this order. The above draws the curtains on the
captioned writ petition."
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3. A Order-in-original was passed after issuance of appropriate notice
under the Central Goods and Services Act, 2017 (in short 'the CGST Act') to
the appellant herein. It was passed during the time when Section 42 of the
CGST Act was in the statute book. Taking note of the difficulties in
implementing Section 42, under the Finance Act, 2022, the said Section was
omitted with effect from 01.10.2022. As a matter of fact, the Central Board
of Indirect Taxes and Customs, GST Policy Wing has now issued a circular
post facto vide Circular No.183/15/2022-GST dated 27.12.2022. Para 4.1.1
and 4.1.2 of the said circular are relevant and are reproduced below:
"4.1.1 In case, where difference between the ITC
claimed in FORM GSTR-3B and that available in FORM
GSTR 2A of the registered person in respect of a supplier for
the said financial year exceeds Rs.5 lakh, the proper officer
shall ask the registered person to produce a certificate for the
concerned supplier from the Chartered Accountant (CA) or
the Cost Accountant (CMA), certifying that supplies in respect
of the said invoices of supplier have actually been made by
the supplier to the said registered person and the tax on such
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supplies has been paid by the said supplier in his return in
FORM GSTR 3B. Certificate issued by CA or CMA shall
contain UDIN. UDIN of the certificate issued by CAs can be
verified from ICAI website https://udin.icai.org/search-udin and
that issued by CMAs can be verified from ICMAI website
https://eicmai.in/udin/VerifyUDIN.aspx.
4.1.2 In cases, where difference between the ITC claimed in
FORM GSTR-3B and that available in FORM GSTR 2A of the
registered person in respect of a supplier for the said
financial year is upto Rs.5 lakh, the proper officer shall ask
the claimant to produce a certificate from the concerned
supplier to the effect that said supplies have actually been
made by him to the said registered person and the tax on said
supplies has been paid by the said supplier in his return in
FORM GSTR 3B."
4. In light of the above, we are inclined to interfere with the order
passed by the learned Single Judge. Accordingly, we quash the impugned
order and remit the case back to the respondent for passing fresh orders in
terms of the circular dated 27.12.2022. The appellant is required to comply
with the requirements of the aforesaid circular by producing the required
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certificate within the time to be stipulated by the assessing authority.
5. Accordingly, this writ appeal stands allowed. However, there is no
order as to costs. Consequently, connected miscellaneous petition is also
closed.
(R.S.K., J.) (C.S.N., J.)
06.09.2024
Index : Yes/No
NC : Yes/No
sra
To
The Superintendent of GST & Central Excise,
Thiruvarur Range, No.12-A, Kumaran
Kovil Street, Thiruvarur - 610 002.
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R.SURESH KUMAR, J.
AND
C.SARAVANAN,J.
(sra)
06.09.2024
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