W.P.Nos.5978 and 5983 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 22.11.2024
Pronounced on 09.05.2025
CORAM :
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
and
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.Nos.5978 and 5983 of 2020
W.P.No.5978 of 2020
M/s.L & T Geostructure LLP,
Represented by its Chief Financial Officer
Mr.S.Vaidyanathan ... Petitioner
Vs.
1.The Union of India,
Through its Revenue Secretary,
Department of Revenue,
Ministry of Finance,
128-A / North Block,
New Delhi.
2.The Government of Tamil Nadu,
Through its Secretary,
Department of Commercial Taxes,
Fort St. George, Chennai – 600 006.
3.The Commissioner of Commercial Taxes,
Ezhilagam, Chepauk,
Chennai – 600 005.
1/56
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W.P.Nos.5978 and 5983 of 2020
4.The Assistant Commissioner (ST),
Nandambakkam State Tax Office,
17, 2nd Street, Loganathan Nagar,
Choolaimedu,
Chennai – 600 094. ... Respondents
Prayer in W.P.No.5978 of 2020: Writ Petition filed under Article 226 of the
Constitution of India, for issuance of a Writ of Declaration, to declare Sub-Rule
(4) of Rule 36 of the Central Goods and Services Tax Rules, 2017 as ultra vires
the Central Goods and Services Tax Act, 2017 as well as violative of Article 14
of Constitution of India.
W.P.No.5983 of 2020
M/s.L & T Geostructure LLP,
Represented by its Chief Financial Officer
Mr.S.Vaidyanathan ... Petitioner
Vs.
1.The Government of Tamil Nadu,
Through its Secretary,
Department of Commercial Taxes,
Fort St. George, Chennai – 600 006.
2.The Union of India,
Through its Revenue Secretary,
Department of Revenue,
Ministry of Finance,
128-A / North Block, New Delhi.
3.The Commissioner of Commercial Taxes,
Ezhilagam, Chepauk,
Chennai – 600 005.
4.Office of the Assistant Commissioner (ST),
2/56
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W.P.Nos.5978 and 5983 of 2020
Nandambakkam State Tax Office,
17, 2nd Street, Loganathan Nagar,
Choolaimedu, Chennai – 600 094. ... Respondents
Prayer in W.P.No.5983 of 2020: Writ Petition filed under Article 226 of the
Constitution of India, for issuance of a Writ of Declaration, to declare Sub-Rule
(4) of Rule 36 of the Tamil Nadu Goods and Services Tax Rules, 2017 as ultra
vires the Tamil Nadu Goods and Services Tax Act, 2017 as well as violative of
Article 14 of Constitution of India.
W.P.No.5978 of 2020
For Petitioner : Mr.Raghavan Ramabadran
for M/s.Lakshmi Kumaran and
Sridharan Attorneys
For Respondents :
For R1 : Mr.Rajnish Pathiyil
Senior Standing Counsel
For R2 to R4 : Mr.T.N.C.Kaushik
Additional Government Pleader
W.P.No.5983 of 2020
For Petitioner : Mr.Raghavan Ramabadran
for M/s.Lakshmi Kumaran and
Sridharan Attorneys
For Respondents :
For R1, R3 and R4 : Mr.T.N.C.Kaushik
Additional Government Pleader
For R2 : Mr.Rajnish Pathiyil
Senior Standing Counsel
COMMON ORDER
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W.P.Nos.5978 and 5983 of 2020
(Order of the Court was made by C. SARAVANAN, J.)
In these Writ Petitions, the Petitioner has challenged the vires of Rule
36(4) of both Central Goods and Services Tax (CGST) Rules, 2017 (hereinafter
referred to as 'CGST Rules') and Tamil Nadu Goods and Services Tax (TNGST)
Rules, 2017 (hereinafter referred to as 'TNGST Rules'). Rule 36(4) of the
respective GST Rules read identically.
2. These Writ Petitions are of the year 2020. When these Writ Petitions
were filed, Rule 36(4) of the respective GST Rules read differently from how it
read after its amendment with effect from 01.01.2022.
3. Rule 36(4) of the CGST Rules as it stood at the time when these Writ
Petitions were filed and at the time of passing of this Order are reproduced
below for the sake of clarity:-
Table-I
Rule 36(4) of CGST Rules with Rule 36(4) of CGST Rules with
effect from 09.10.2019 effect from 01.01.2022
36. Documentary requirements and conditions for claiming Input
Tax Credit:
(1) ..... (1) .....
(2) ..... (2) .....
(3) ..... (3) .....
(4) Input tax credit to be availed (4) No Input Tax Credit shall be
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Rule 36(4) of CGST Rules with Rule 36(4) of CGST Rules with
effect from 09.10.2019 effect from 01.01.2022
by a registered person in availed by a registered person
respect of invoices or debit in respect of invoices or debit
notes, the details of which notes the details of which are
have not been uploaded by the required to be furnished under
suppliers under sub-section (1) sub-section (1) of section 37
of section 37, shall not exceed unless,-
20 per cent of the eligible (a) the details of such invoices
credit available in respect of or debit notes have been
invoices or debit notes the furnished by the supplier in
details of which have been the statement of outward
uploaded by the suppliers supplies in FORM GSTR-1
under sub-section (1) of or using the invoice
section 37. furnishing facility; and
(b) the details of input tax
credit in respect of such
invoices or debit notes have
been communicated to the
registered person in FORM
GSTR-2B under sub-rule
(7) of rule 60.
4. During the period between 01.01.2017 and 08.10.2019, the impugned
Rule in these Writ Petitions, i.e., Rule 36(4) were not there in the respective
GST Rules. The above provision was inserted by CGST (6th Amendment) Rules
2019 with effect from 09.10.2019. Later, the aforesaid Rule was further
amended on various occasions. Finally, vide CGST (10th Amendment) Rules,
2021 with effect from 01.01.2022, Rule 36(4) of the respective GST Rules
stands as extracted above in Column 2 in Table I of this Order.
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5. As far as TNGST Rules are concerned, Rule 36(4) of the Rules was
first inserted by Notification No. SRO A-39(a)/2019 dated 11.10.2019 with
effect from 09.10.2019 vide TNGST (6th Amendment) Rules, 2019. The
impugned amendment to Rule 36(4) of the TNGST Rules was later substituted
by Notification No. SRO A-48(a)/2020 dated 23.12.2020 with effect from
01.01.2021 vide TNGST (14th Amendment) Rules, 2020.
6. At the time of inception of Rule 36(4) of the respective GST Rules,
with effect from 09.10.2019, a registered person was entitled to avail restricted
Input Tax Credit (ITC) equivalent to the 20% of the eligible credit if the details
of invoices or debit notes had not been uploaded by the supplier under Section
37(1) of the respective GST Acts.
7. The restrictions in the sub-clause (4) to Rule 36 of the respective GST
Rules that was initially fixed at 20% with effect from 09.10.2019 was reduced
over a period to 10% and thereafter to 5% and eventually to 'Nil' Input Tax
Credit (ITC), if the details, required under Section 37(1) of the respective GST
Acts were not uploaded by the supplier. Similar amendments were also made to
the provisions of the TNGST Rules which are not reproduced as the provisions
read mutatis mutandis.
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8. The details of the percentage of eligible Input Tax Credit (ITC) that
could be availed as per Rule 36(4) of the respective GST Rules under Section
37(1) of the GST Acts, if necessary documents were not uploaded as per Rule
36(4) of the respective GST Rules are as under:-
Table-II
Sl. Period/ Nature of Amendment to Amendment to
No. Date Registration CGST vide TNGST vide
Notification No. Notification No.
1 01.01.2017 Sub-rule 4 to --- ---
to Rule 36 not in
08.10.2019 the respective
GST Rules
2 09.10.2019 20% Notification. Notification. No.
to No.49/2019- SRO A-39(a)/2019,
31.12.2019 Central Tax (CT) dated 11.10.2019/6th
dated Amendment Rules,
09.10.2019/6 th
Amendment Rules,
3 01.01.2020 10% Notfn.No.75/2019- Notification No.SRO
to Central Tax (CT) A-46(a-1)/2019
31.12.2020 dated 26.12.2019 dated 30.12.2019/9th
Amendment Rules,
4 01.01.2021 5% Notification No. Notification No.
to 94/2020 Central SRO.A48(a)/2020
31.12.2021 Tax (CT) dated dated 23.12.2020/14th
22.12.2020 Amendment Rules,
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Sl. Period/ Nature of Amendment to Amendment to
No. Date Registration CGST vide TNGST vide
Notification No. Notification No.
5 01.01.2022 Notification. Notification. No.
to No.40/2021- SRO A/24(d)/2021
31.12.2022 NIL Central Tax (CT) dated
dated 30.12.2021/10th
th
01.01.2022/10 (Amendment) Rules,
(Amendment) 2021
Rules, 2021
9. Presently, under the respective GST Rules, no Input Tax Credit (ITC)
can be availed if details are not furnished by the supplier of service or goods as
is required under Section 37(1) of the CGST Act and unless, the details referred
to in Rule 36(4)(a) and (b) of the respective GST Rules are available, namely:-
(a). the details of such invoices or debit notes have been
furnished by the supplier in the statement of outward supplies in
FORM GSTR-1 or using the invoice furnishing facility; and
(b). the details of input tax credit in respect of such invoices or
debit notes have been communicated to the registered person in
FORM GSTR-2B under sub-rule (7) of rule 60.
10. Section 37(1) of the respective GST Acts read identically. However,
Section 37(1) of the respective GST Acts read differently at the time when these
Writ Petitions were filed. Section 37(1) of the respective GST Acts after its
amendment vide Finance Act, 2022 (Act 6 of 2022) in the year 2022 with effect
from 01.10.2022 vide S.O. 4569(E) dated 28.09.2022 reads differently. They
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are not material for the present dispute i.e., to decide whether the restriction
placed was justified or not.
11. Section 37(1) of the respective GST Acts as it stood at the time when
these Writ Petitions were filed and how they read when this Order is being
passed are reproduced below. For the sake of clarity, Section 37(1) of the CGST
Act are extracted below:-
Table-III
Section 37(1) of the CGST Act Section 37(1) of the CGST Act
with effect from 01.07.2017 with effect from 01.10.2022
37. Furnishing details of outward 37. Furnishing details of outward
supplies.— supplies.—
(1) Every registered person, other (1) Every registered person, other
than an Input Service Distributor, a than an Input Service Distributor, a
non-resident taxable person and a non-resident taxable person and a
person paying tax under the person paying tax under the
provisions of section 10 or section 51 provisions of section 10 or section 51
or section 52, shall furnish, or section 52, shall furnish,
electronically, in such form and electronically, subject to such
manner as may be prescribed, the conditions and restrictions and in
details of outward supplies of goods such form and manner as may be
or services or both effected during a prescribed, the details of outward
tax period on or before the tenth day supplies of goods or services or both
of the month succeeding the said tax effected during a tax period on or
period and such details shall be before the tenth day of the month
communicated to the recipient of the succeeding the said tax period and
said supplies within such time and in such details shall subject to such
such manner as may be prescribed: conditions and restrictions, within
Provided that the registered person such time and in such manner as may
shall not be allowed to furnish the be prescribed, be communicated to
details of outward supplies during the the recipient of the said supplies.
period from the eleventh day to the Provided that the Commissioner may,
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Section 37(1) of the CGST Act Section 37(1) of the CGST Act
with effect from 01.07.2017 with effect from 01.10.2022
fifteenth day of the month succeeding for reasons to be recorded in writing,
the tax period: by notification, extend the time limit
Provided further that the for furnishing such details for such
Commissioner may, for reasons to be class of taxable persons as may be
recorded in writing, by notification, specified therein:
extend the time limit for furnishing Provided further that any extension of
such details for such class of taxable time limit notified by the
persons as may be specified therein: Commissioner of State tax or
Provided also that any extension of Commissioner of Union territory tax
time limit notified by the shall be deemed to be notified by the
Commissioner of State tax or Commissioner.
Commissioner of Union territory tax
shall be deemed to be notified by the
Commissioner.
SUBMISSIONS MADE ON BEHALF OF THE PETITIONER:-
12. The principle ground of attack of the Petitioner to Sub-Rule 4 to Rule
36 of the respective GST Rules is that there are no restrictions under Section 16
of both the respective GST Acts and therefore the restrictions in the form of
restricted credit equivalent to the eligible credit on the percentage of eligible
credit was arbitrary and ultra vires to the provisions and the Rules of the
respective GST enactments.
13. Learned counsel for the Petitioner would submit that sub-rule 4 to
Rule 36 of the respective GST Rules are ultra vires the respective GST Acts
since it prescribes restrictions with regard to availment of Input Tax Credit
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(ITC). Even though, Section 43 of the CGST Act empowers the Central
Government to make Rules restricting availment of Input Tax Credit (ITC) on
supplies not declared by the suppliers in Form GSTR-1, the same has not been
notified by the Central Government.
14. It is submitted by the learned counsel for the Petitioner that Rule
36(4) of the respective GST Rules inserted vide Notification No.49/2019-
Central Tax (CT) dated 09.10.2019 whereby the sub-rule 4 to Rule 36 of the
GST enactments was incorporated. It is submitted that the sub-rule (4) to Rule
36 of the GST enactments could have been brought into the respective Rules
only after Section 43A of the respective GST enactments were implemented. It
is submitted that although Section 43A of the respective GST enactments were
incorporated, it is never been notified. A reference was made to sub-section 4 to
Section 43A of the respective GST enactments to substantiate the case.
15. It is therefore submitted by the learned counsel for the Petitioner that
although Section 43A of the respective GST enactments were inserted by the
Central Goods and Services Tax (Amendment) Act, 2018 and Goods and
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Services Tax (Compensation to States) Amendment Act, 2018, it has not been
notified. Therefore, in the absence of implementation of Section 43A of the
respective GST enactments during the period in dispute, there was no scope for
imposing restriction in availing the Input Tax Credit (ITC) under Rule 36(4) of
the respective GST Rules by a registered person like the Petitioner.
16. That apart, it is submitted by the learned counsel for the Petitioner
that once a registered person satisfies the requirements of Section 16(2) of the
respective GST enactments, the Input Tax Credit (ITC) availed by such
registered person as specified in the provision are to be allowed.
17. Further, it is submitted by the learned counsel for the Petitioner that if
the tax charged in respect of supply which was actually being paid to the
Government by the supplier either in cash or through utilization of Input Tax
Credit (ITC), the credit availed by such a registered person has to be allowed.
18. It is further submitted by the learned counsel for the Petitioner that
merely because there is an omission on the part of the supplier to file the returns
correctly under Section 37 of the respective GST enactments read with Rule 36
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of the respective GST Rules, the Input Tax Credit (ITC) that is available for the
Petitioner under Section 16 of the respective GST enactments cannot be
restricted. Therefore, it is submitted that Rule 36(4) of the respective GST Rules
are ultra vires and therefore these Writ Petitions deserves to be allowed.
19. The learned counsel for the Petitioner would further submit that Rule
36(4) of the respective GST Rules are arbitrary, irrational and violative of
Articles 14, 19 and 21 of the Constitution of India. It is further submitted that
the amended provision is ultra vires Section 16 of the respective GST
enactments which is the plenary legislation which governs the availment of
Input Tax Credit (ITC).
20. It is stated that Section 16(1) of the respective GST enactments allows
Input Tax Credit (ITC) to be availed by a registered person subject to such
restrictions and limitations as may be prescribed under the respective provision.
21. It is further stated that Section 16(2) of the respective GST Acts is the
non-obstante clause that contains certain conditions with regard to availing
Input Tax Credit (ITC) unless the registered person is in possession of tax
invoices or debit notes issues by a supplier registered under the CGST Act and
TNGST Act and / or such other tax, both the documents as may be prescribed
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W.P.Nos.5978 and 5983 of 2020
and that such registered person has received the goods or services or both.
22. Therefore, the learned counsel for the Petitioner would submit that the
conditions or restrictions should be only as prescribed in the statute. The
impugned conditions for availing Input Tax Credit (ITC) are specifically
covered under Section 43 or Section 43A of the respective GST Acts, therefore
it is submitted that the source of power to insert Rule 36(4) of the respective
GST Rules cannot be found in Section 16(1) of the respective GST Acts. It is
further submitted that such requirements and restrictions on availing Input Tax
Credit (ITC) have been sustained due to technical difficulties in implementing
the same. Therefore, the said procedures cannot be implemented.
23. The learned counsel for the Petitioner would also submit that in fact
Section 43A of the respective GST enactments has been inserted to provide the
procedure for furnishing the return and / or availing the Input Tax Credit (ITC)
and a specific provision to that effect is contained in Sub-Section (4) of Section
43A of the respective GST Acts. However, the Section itself has not been
implemented and therefore the Rule which could have been traced to this
Section cannot be enforced de hors the Section being implemented.
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24. Therefore, the learned counsel for the Petitioner would contend that
Rule 36(4) of the respective GST Rules is beyond the scope, mandate and
concern of the provisions of the parent Act. It is also submitted that it is a settled
law that every Rule must satisfy the touchstone of a parent statute's provision
and failure to do so renders the Rule ultra vires the provisions of the parent
statute. In this regard, the learned counsel for the Petitioner would rely upon the
decision of the Hon'ble Supreme Court in “General Officer Commander-in-
Chief Vs. Subhas Chandra Yadav”, AIR (1988) SC 876.
25. Learned counsel for the Petitioner would also submit that sub-rule 4
to Rule 36 of the respective GST Rules have been inserted by invoking the
powers conferred under Section 164 of the respective GST Acts and the said
provision cannot be invoked for introducing Rule 36(4) for two reasons viz.,
firstly, the introduction of Rule 36(4) to the respective GST Rules were not
recommended by the GST Council.
26. Thus, it is submitted that the introduction of Rule 36(4) vide
Notification No.49/2019-Central Tax (CT) dated 09.10.2019 is violative of
Section 164 of the GST enactments inasmuch as the requirement of
recommendation of GST Council, prescribed under Section 164(1) is not
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satisfied.
27. Secondly, it is submitted by the learned counsel for the Petitioner that
Section 164 of the CGST Act empowers the Central Government to make Rules
only to carry out the provisions of the CGST Act. The only provision which
corresponds to Rule 36(4) of the respective GST Rules is Section 43A of the
respective GST enactements which have not been implemented.
28. That being so, the learned counsel for the Petitioner submits that
Section 164 of the CGST Act cannot be invoked for introducing Rule 36(4) of
the CGST Rules. In this regard, the learned counsel for the Petitioner has also
relied upon the decision of the Hon'ble Supreme Court in “Kunj Behari Lal
Butail and others Vs. State of Himachal Pradesh and others”, (2000) 3 SCC
40 / 2000 SCC OnLine SC 428.
29. With these contentions, the learned counsel for the Petitioner would
urge this Court to declare sub-rule 4 to Rule 36 of the respective GST Rules as
ultra vires the respective GST Acts as well as violative of Article 14 of
Constitution of India.
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30. In support of above contention, the learned counsel for the Petitioner
placed reliance on the following decisions of the Hon'ble Supreme Court and
that of various High Courts:-
i. Union of India Vs. Bharti Airtel Limited and others, 2021
VIL 87 SC.
ii. Suncraft Energy Private Limited and another Vs. The
Assistant Commissioner, State Tax, Ballygunge Charge and
others, 2023 VIL 487 CAL.
iii. The Assistant Commissioner of State Tax, Ballygunge
Charge and others Vs. Suncraft Energy Private Limited
and others, 2023 VIL 99 SC.
iv. On Quest Merchandising India Private Limited Vs.
Government of NCT of Delhi and others, 2017 VIL 544
DEL.
v. Commissioner of Trade and Taxes, Delhi Vs. Arise India
Limited, 2018 VIL 01 SC.
vi. M/s.Mahalaxmi Cotton Ginning Pressing and Oil
Industries, Kolhapur Vs. The State of Maharashtra and
others, 2012 VIL 37 BOM.
vii. Gheru Lal Bal Chand Vs. State of Haryana and another,
2011 VIL 120 P & H.
viii. Diya Agencies Vs. The State Tax Officer and others, 2023
VIL 629 KER.
ix. Praveen Bhaskaran (Proprietor) M/s. Galaxy Traders Vs.
Union of India, Represented by its Secretary, Ministry of
Finance, New Delhi and others, 2023 VIL 676 KER.
x. M/s.JKM Graphics Solutions Private Limited Vs. The
Commercial Tax Officer, Chennai, 2017 VIL 123 MAD.
xi. The Assistant Commissioner (CT), Chennai Vs. Sri.
Vinayaga Agencies, 2020 (4) TMI 141.
xii. The Assistant Commissioner (CT), Chennai and another
Vs. Sri Vinayaga Agencies, 2021 (2) TMI 1037.
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xiii. Chunni Lal Parshadi Lal Vs. Commissioner of Sales Tax,
Uttar Pradesh, Lucknow, 1986 VIL 05 SC.
xiv. M/s.D.Y.Beathel Enterprises Vs. The State Tax Officer
(Data Cell), Tirunelveli, 2021 VIL 308 MAD.
xv. Society for Tax Analysis and Research Vs. Union of India
and others, TS 1151 HC 2019 (GUJ) NT.
xvi. Sales Tax Bar Association (Regd.) and another Vs. Union
of India and others, TS 1152 HC 2019 (DEL) NT.
xvii. Himanshu Mohta and Associates Vs. Union of India and
others, TS 1153 HC 2019 (DEL) NT.
xviii. Myres Tyre Supply (India) Limited Vs. The Assistant
Commissioner (ST), Madurai and others in W.A.(MD)
No.345 of 2019 dated 26.02.2020.
xix. Myres Tyre Supply (India) Limited Vs. The Assistant
Commissioner (ST), Madurai and others in W.P.(MD)
Nos.18723 and 18724 of 2018 dated 26.02.2020.
xx. General Officer Commander-in-Chief Vs. Subhas Chandra
Yadav, AIR (1988) SC 876.
xxi. Kunj Behari Lal Butail and others Vs. State of Himachal
Pradesh and others, (2000) 3 SCC 40 / 2000 SCC OnLine SC
SUBMISSIONS MADE ON BEHALF OF THE RESPONDENT:-
31. On the other hand, the learned Senior Standing Counsel for the 1st
Respondent in W.P.No.5978 of 2020 and the 2nd Respondent in W.P.No.5983 of
2020 submits that there are no merits in the challenge to the impugned
amendment to Rule 36 of the respective GST Rules.
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32. It is submitted by the learned Senior Standing Counsel for the
Respondents that irrespective of Section 43A of the respective GST enactments,
the restrictions can be placed under the Rules in terms of Section 41 of the
respective GST enactments.
33. It is submitted by the learned Senior Standing Counsel for the
Respondents that as per Section 41(1) of the respective GST enactments, the
right to claim Input Tax Credit (ITC) is subject to such conditions and
restrictions as may be prescribed and therefore it is submitted that the
restrictions in Rule 36(4) of the respective GST Rules is well within the ambit
of Section 41 of the respective GST enactments.
34. It is submitted by the Respondents that Rule 36(4) of the respective
GST Rules is a benevolent provision in the nature of a concession as it allows
credit even in respect of supplies where the invoices or debit notes have not
been furnished by the suppliers under Section 37(1) of the respective GST Acts
and tax not deposited with the Government.
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35. It is submitted by the Respondents that if not for the impugned Rule
36(4) of the respective GST Rules, in view of the prohibition under Section
16(2)(c) of the respective GST Acts, the recipient of the supply shall not be
entitled to take any credit. The allowance of 20%, 10%, and presently 5% of
the eligible credit available in respect of invoices or debit notes which have
neither been furnished in the returns by the supplier nor the tax deposited with
the Government lessens the rigor of the prohibition imposed under Section
16(2)(c) read with Sections 16(1), 41 and 42 of the Central Goods and Services
Tax (CGST) Act, 2017.
36. It is submitted by the Respondents that the legal position under the
respective GST Acts read with the CGST Rules regarding the recipient's
entitlement to take Input Tax Credit (ITC) on inward supplies, the details of
which the supplier neither furnished in his returns nor deposited the
corresponding tax charged with the Government can be summarized thus:
(a) Input Tax Credit (ITC) is a concession extended by the
legislature. It is subject to conditions, restrictions and
prohibitions stipulated in the Act and prescribed in the Rules.
An assessee does not have an absolute right to Input Tax
Credit, it is circumscribed and contingent upon the satisfaction
of the restrictions and conditions imposed by law.
(b) It is completely within the prerogative of the Government to
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grant a concession and the degree of concession. The
recipient of such concessions does not have any legally
enforceable right to demand the degree of concession granted,
except to enjoy the benefits of the concession during the
period of grant. In this regard, he rely on the decision of the
Hon'ble Supreme Court in State of Rajasthan and others Vs.
J.K.Udaipur Udyog Limited and others, 2004 (7) SCC 67.
(c) The very entitlement of a registered person to take credit of
input tax per se is subject to such conditions and restrictions
as may be prescribed. Thus, the power to prescribe conditions
and restrictions, including the power to prescribe limitation on
the amount of credit that a registered person is entitled to has
been conferred on the Government.
(d) A registered person shall not be entitled to take credit if the
tax charged on the inward supply of goods or services or both
has not been actually paid to the Government. This prohibition
is absolute in its character and is made subject only to the
provisions of Section 41 of the Act.
(e) A registered person may be entitled to take credit of eligible
input tax, as self-assessed, in his return; the credit of such
Input Tax Credit (ITC) in the electronic credit ledger of the
registered person is provisional.
(f) The entitlement of the registered person to take Input Tax
Credit (ITC), as self-assessed in his return, is also subject to
such conditions and restrictions as may be prescribed.
(g) Where the Input Tax Credit claimed by a recipient has a
discrepancy with regard to the outward supplies furnished by
the supplier or the tax actually paid to the Government, and if
such discrepancy is not resolved even after an intimation to
the supplier and recipient, such duplication of Input Tax
Credit (ITC) shall be added to the output tax liability of the
recipient.
(h) However, as a measure of concession to lessen the rigor to
Section 16(2)(c), Rule 36(4) of the respective GST Rules
permits a registered person even in those cases where the
supplier has neither furnished the details of his outward
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supplies nor deposited the tax with the Government, to avail
credit not exceeding 20% / 10% / 5% of the eligible credit
available in respect of invoices or debit notes the details of
which have been furnished by the suppliers.
(i) The power to make Rule 36(4) under the CGST Rules can be
traced to both Section 16(1) and Section 41 read with Section
164 of the CGST Act.
(j) If not for Rule 36(4), a registered person would be entitled to
0% of the credit in relation to supplies received by him due to
the prohibition under Section 16(2)(c). If the prayer of the
petitioner is granted, it would deprive the petitioner and other
assessees of Input Tax Credit in toto.
37. Learned Senior Standing Counsel would also submit that merely
because Rule 36(4) of the respective GST Rules could also be traced to Section
43A of the respective GST Acts when it is notified, it cannot be construed to
mean that it could not be traced to Sections 41(1) and 16(1) of the respective
GST Acts. Therefore, it is submitted that the impugned Rule 36(4) is intra vires
the respective GST Acts.
38. Therefore, with these contentions, the learned Senior Standing
Counsel for the Respondents in both the Writ Petitions sought for dismissal of
these Writ Petitions and would urge this Court to uphold the validity of the
impugned Rule 36(4) of the respective GST Rules.
39. In support of his contention, the learned Senior Standing Counsel for
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the Respondent has placed reliance on the following decisions of the Hon'ble
Supreme Court and that of this Court:-
i. State of Rajasthan and others Vs. J.K.Udaipur Udyog
Limited and others, 2004 (7) SCC 67.
ii. M/s.P.R.Mani Electronics Vs. Union of India,
MANU/TN/3610/2020.
40. We have heard the learned counsel for the Petitioner, the learned
Senior Standing Counsel and the learned Additional Government Pleader for the
Respondents.
41. GST enactments were implemented with effect from 01.07.2017. The
implementation of GST enactment was an ambitious attempt to integrate
various indirect taxes and modernize the tax collection. These enactments
subsumed various Central and State Indirect Tax enactments which were in
force till then. These GST enactments were enacted to bring an end to the
uncertainty in the tax rates that prevailed till then in various States for the same
commodity.
42. The implementation of the GST enactments though were made in a
hurry with effect from 01.07.2017 without it being implemented in a phased
manner. Therefore, the GST enactments did encounter several difficulties on
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account of the gap between the expectation and fulfilling the object behind the
implantation of GST enactments and the difficulty in implementing the GST
regime on the electronic platform.
43. Thus, the GST council constituted under Article 279A of the
Constitution of India had after much deliberation approved the Rules and the
notification was issued for successful roll out and implementation of GST
enactments pan India.
44. The incidence of tax borne by the recipient of goods and / or services
which was to be paid by the suppliers of goods and / or services was made
uniform pan India. A single return at each stage of supply both under the
Central and the State GST enactments was contemplated and to facilitate the
recipient of goods and / or servies to avail Input Tax Credit (ITC) seamlessly.
45. GST which was conceived and implemented in the back ground of
rich experience gained earlier from the early 1980’s with the successful
implementation of PROFORMA CREDIT / MODVAT Credit under the Central
Excise and Salt Rules, 1944 (later Central Excise Rules, 1944) which allowed
various tax paid under the Central Excise Act, 1944, Central Excise Tariff Act,
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1975 and cess levied and collected under various enactments as Input Tax Credit
(ITC) for being set-off against final duty payable on final product.
46. They were inspired from the Canadian Model of Income Tax. Later,
in 2000, MODVAT Credit transformed itself into CENVAT Credit Rules under
the provisions of the Central Excise Rules, 1944.
47. Still later the CENVAT Credit Rules under the provisions of the
Central Excise Rules, 1944 transformed itself into a standalone Rule under the
CENVAT Credit Rules, 2001. It was later substituted with CENVAT Credit
Rules, 2002 and eventually as CENVAT Credit Rules, 2004 with effect from
10.09.2004. CENVAT Credit Rules, 2004 was in force till 30.06.2017.
48. In the same spirit, the GST enactments were implemented to allow the
recipient of goods and / or service liable to pay tax on the out supply on the tax
paid on the supply of input goods and service.
49. During the interregnum, Input Tax Credit (ITC) was also allowed on
capital goods from 1994 under the provisions of the Central Excise Rules, 1944.
Further, liberalization was made with the implementation of the Service Tax
Credit Rules, 2002 by allowing a provider of taxable service to avail Input Tax
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Credit (ITC) on service tax paid on input services.
50. With effect from 10.09.2004, Input Tax Credit (ITC) was made
available on both Service Tax and Central Excise Duty including Additional
Duty of Customs payable under the provisions of the Central Excise Tariff Act,
1975 and various cess that were being levied under various Finance Acts for
being set off against Service Tax liability, Central Excise Duty and Cess liability
under CENVAT Credit Rules, 2004.
51. The above experience led to enactment of various State Value Added
Tax enactments by each of the States and Union Territory from the year 2004,
2005 and 2006. However, VAT enactments were abused by several
unscrupulous dealers leading to huge leakage State Revenue in each of the
States.
52. However, when GST enactments were implemented, the Government
thought it fit to allow the credit in a calibrated manner so that revenue leakages
can be minimised and contained. This was also discussed in the meeting of
GST Council.
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53. Therefore, for a successful implementation of the GST laws, a system
was evolved to allow Input Tax Credit (ITC) electronically subject to statutory
compliances not only by the supplier of goods and / or service but also by the
recipient of such goods and service.
54. The respective GST enactments also allowed dealers and registered
persons under the previous regime to transition unutilized credit under the
previous regime / under the new regime. Therefore, provisions for transitioning
the unutilized credit under the previous regime were also incorporated under the
CGST and respective State GST enactments.
55. Thus, various Returns were contemplated which had to be filed
electronically by the assessee registered under the provisions of the respective
GSTenactments to not only enable them to pass on Input Tax Credit (ITC) but
also to avail credit.
56. This was to ensure that Input Tax Credit (ITC) was available in the
hands of such recipient of goods and / or service subject to proper filing of
Returns contemplated under the respective GST enactments and the GST Rules
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by each of the stake holders.
57. Restrictions were placed under the respective GST Rules as
experience under the previous regime had demonstrated that the facility of Input
Tax Credit (ITC) was abused by unscrupulous dealers by resorting to circular
trading and bill trading by either passing on ineligible Input Tax Credit (ITC) or
without actual payment of tax and supply of goods.
58. Since GST laws were to allow credits electronically in the Electronic
Credit Ledger contemplated under the CGST Act and the respective State GST
enactments and the Rules made thereunder, they had fair share of technical
glitch in the beginning.
59. They have been ironed out over a period of time and most of the
technical issues have been resolved to ensure that the object to allow credit is
fulfilled and tax paid by the supplier of goods and / or service is allowed as
Input Tax Credit (ITC) subject to proper statutory compliance by both supplier
of goods and / or service and recipient of goods and / or service under the
respective GST enactments and the Rules made thereunder.
60. If the supplier fails to furnish the details in the returns under Section
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37(1) of the CGST and respective State GST enactments, restricted credit was
allowed. Initially, it was allowed at 20%. Later, it was reduced to 10% and still
later it was reduced to 5%. Eventually, no Input Tax Credit (ITC) was to be
allowed if the details required under Section 37(1) of the respective GST
enactments were not furnished by the supplier of goods and / or service.
61. These restrictions were placed as the system i.e., Information and
Technology (IT) Platform that was developed by the IT wing of the Government
did not address to all the concern behind the object of the implementation of
respective GST enactments. Thus, restricted credit was allowed till details were
uploaded by the supplier.
62. It has to be borne in mind that the basic feature of the respective GST
enactments and the Rules made thereunder is to allow a recipient of such goods
and / or service or both who are themselves engaged in supply of taxable goods
and / or services or both or supply of zero rated supply of goods and / or service
or both (i.e., output supply) to avail Input Tax Credit (ITC) on the tax borne by
them on such inward supplies.
63. This object is traceable to the MODVAT Rules referred to supra.
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Trade Notice No.38/1999 dated 2nd April, 1991 issued by the Bombay
Collectorate in its clarification issued in the context of the MODVAT Scheme.
It clarified the object of MODVAT Scheme as below:-
“the basic aim of the Modvat Scheme is to avoid the cascading
effect of duties on a product. Therefore, the scheme permits
Modvat credit on all goods forming a part of the final product,
though the final product may be manufactured in several
stages, provided duty is paid at each stage of the
manufacturing chain.
64. This view was also echoed in the following passage by the Hon’ble
Supreme Court in “Collector of Central Excise, Pune Vs. Dai Ichi Karkaria
Limited”, [1999] 112 ELT 353:-
“18. It is clear from these Rules, as we read them, that a
manufacturer obtains credit for the excise duty paid on
raw material to be used by him in the production of an
excisable product immediately it makes the requisite
declaration and obtains an acknowledgement thereof.
It is entitled to use the credit at any time thereafter
when making payment of excise duty on the excisable
product. There is no provision in the Rules which
provides for a reversal of the credit by the excise
authorities except where it has been illegally or
irregularly taken, in which event it stands cancelled or,
if utilised, has to be paid for. We are here really
concerned with credit that has been validly taken, and
its benefit is available to the manufacturer without any
limitation in time or otherwise unless the manufacturer
itself chooses not to use the raw material in its
excisable product. The credit is, therefore, indefeasible.
It should also be noted that there is no co-relation of
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the raw material and the final product; that is to say, it
is not as if credit can be taken only on a final product
that is manufactured out of the particular raw material
to which the credit is related. The credit may be taken
against the excise duty on a final product
manufactured on the very day that it becomes
available.
19. It is, therefore, that in the case of Eicher Motors Ltd.
Vs. Union of India., [1999(106) ELT 3] this Court
said that a credit under the MODVAT scheme was as
good as tax paid.”
65. Recently also, the Hon’ble Supreme Court in “Union of India Vs.
Cosmo Films Limited”, 2023 (385) E.L.T. 66 (S.C.) reiterated the above
position in the context of the respective GST enactments wherein it was
observed as under:-
“The GST regime is based on the idea of removing
cascading effect of the taxes. The cascading effect of taxes
mean levy of tax on tax. The GST is levied on the net value
added portion and not on the entire transaction value as
the taxpayer would enjoy input tax credit. Barring few
indirect taxes, all the major indirect taxes levied by the
Central and State Governments are subsumed into the GST.
Consequently, taxpayers and suppliers are untroubled
about paying multiple indirect taxes under different laws.
In the GST framework, simple rules have been prescribed
to utilize the cross-sectional credit of input taxes. A trader
who could not claim credit of tax paid on services, can seek
and get credit on goods as well as services. This framework
of seamless credit was introduced to safeguard that taxes
on supplies are paid to the extent of value additions and net
liability - and to avoid double taxation.”
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66. It has to be borne in mind that the GST Council as also the
Government were aware of the bitter experience under the VAT regime due to
ineligible Input Tax Credit (ITC) being passed on and availed on the strength of
either fake and / or fictitious invoices.
67. They were also aware of the huge leakage of revenue under the VAT
regime where without actual supply of goods and corresponding payment of tax,
ineligible Input Tax Credit (ITC) had been passed on leading to leakage of
colossal amount of revenue. Thus, it is with this objective in mind, restrictions
were placed under the Rules.
68. The GST council which consists of the elite body of Finance
Ministers of the respective States is duly assisted by the Officers of Union
Finance Ministry with their rich experience and knew the pitfalls and dangers
which they were to face when they rolled out the GST enactments with effect
from 01.07.2017.
69. The system that prevailed under the previous regime did not provide
adequate disclosure by the supplier of goods resulting in availing of ineligible
and bogus Input Tax Credit (ITC) without corresponding / payment of tax or
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duty thereby defeating the very benevolent of object under the scheme.
70. As far as Input Tax Credit (ITC) is concerned, the substantive
provision that is relevant in the GST enactments is Section 16 of the CGST Act
and the respective State GST Acts, TNGST Act for the state of Tamil Nadu.
71. The language in Section 16(1) of the respective GST Acts is that
every registered person shall be entitled to take credit of Input Tax charged on
any supply of goods or service 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.
72. The rider to avail the Input Tax Credit (ITC) in Section 16 of the
respective is subject to such conditions and restrictions as may be prescribed
and in the manner specified in Section 49 of the GST Acts. The further
requirement for availing Input Tax Credit (ITC) validly under Section 16 are
contained in sub-clause (2) to Section 16 of the respective GST Acts. At the
time of initial incorporation of Section 16 in the respective GST Acts with effect
from 01.07.2017, in sub-clause (2)(a) to Section 16, there was no reference to
Section 37 of the respective GST Acts.
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73. For the sake of clarity, Section 49 of the CGST Act reads as under:-
“49. Payment of tax, interest, penalty and other amounts.—
(1) Every deposit made towards tax, interest, penalty, fee or any
other amount by a person by internet banking or by using credit
or debit cards or National Electronic Fund Transfer or Real Time
Gross Settlement or by such other mode and subject to such
conditions and restrictions as may be prescribed, shall be credited
to the electronic cash ledger of such person to be maintained in
such manner as may be prescribed.
(2) The input tax credit as self-assessed in the return of a
registered person shall be credited to his electronic credit ledger,
in accordance with section 41, to be maintained in such manner
as may be prescribed.
(3) The amount available in the electronic cash ledger may be
used for making any payment towards tax, interest, penalty, fees
or any other amount payable under the provisions of this Act or
the rules made thereunder in such manner and subject to such
conditions and within such time as may be prescribed.
(4) The amount available in the electronic credit ledger may be
used for making any payment towards output tax under this Act
or under the Integrated Goods and Services Tax Act in such
manner and subject to such conditions and within such time as
may be prescribed.
(5) The amount of input tax credit available in the electronic
credit ledger of the registered person on account of––
(a) integrated tax shall first be utilised towards payment of
integrated tax and the amount remaining, if any, may be utilised
towards the payment of central tax and State tax, or as the case
may be, Union territory tax, in that order;
(b) the central tax shall first be utilised towards payment of
central tax and the amount remaining, if any, may be utilised
towards the payment of integrated tax;
(c) the State tax shall first be utilised towards payment of State
tax and the amount remaining, if any, may be utilised towards
payment of integrated tax [Provided that the input tax credit on
account of State tax shall be utilised towards payment of
integrated tax only where the balance of the input tax credit on
account of central tax is not available for payment of integrated
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tax;];
(d) the Union territory tax shall first be utilised towards payment
of Union territory tax and the amount remaining, if any, may be
utilised towards payment of integrated tax: [Provided that the
input tax credit on account of Union territory tax shall be utilised
towards payment of integrated tax only where the balance of the
input tax credit on account of central tax is not available for
payment of integrated tax;]
(e) the central tax shall not be utilised towards payment of State
tax or Union territory tax; and
(f) the State tax or Union territory tax shall not be utilised
towards payment of central tax.
(6) The balance in the electronic cash ledger or electronic credit
ledger after payment of tax, interest, penalty, fee or any other
amount payable under this Act or the rules made thereunder may
be refunded in accordance with the provisions of section 54.
(7) All liabilities of a taxable person under this Act shall be
recorded and maintained in an electronic liability register in such
manner as may be prescribed.
(8) Every taxable person shall discharge his tax and other dues
under this Act or the rules made thereunder in the following
order, namely:–– (a) self-assessed tax, and other dues related to
returns of previous tax periods;
(b) self-assessed tax, and other duesrelated to the return of the
current tax period;
(c) any other amount payable under this Act or the rules made
thereunder including the demand determined under section 73 or
section 74.
(9) Every person who has paid the tax on goods or services or
both under this Act shall, unless the contrary is proved by him, be
deemed to have passed on the full incidence of such tax to the
recipient of such goods or services or both.
Explanation.––For the purposes of this section,— (a) the date of
credit to the account of the Government in the authorised bank
shall be deemed to be the date of deposit in the electronic cash
ledger; (b) the expression,— (i) -tax dues? means the tax payable
under this Act and does not include interest, fee and penalty; and
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(ii) -other dues? means interest, penalty, fee or any other amount
payable under this Act or the rules made thereunder.
(10) [A registered person may, on the common portal, transfer
any amount of tax, interest, penalty, fee or any other amount
available in the electronic cash ledger under this Act, to the
electronic cash ledger for integrated tax, central tax, State tax,
Union territory tax or cess, in such form and manner and subject
to such conditions and restrictions as may be prescribed and such
transfer shall be deemed to be a refund from the electronic cash
ledger under this Act.
(11) Where any amount has been transferred to the electronic
cash ledger under this Act, the same shall be deemed to be
deposited in the said ledger as provided in subsection (1).
74. Reference was made to Section 37 of the respective GST Acts in
Section 16 of the respective GST Acts for the first time only vide amendment to
Section 16(2)(a) of the Act vide Finance Act, 2021 with effect from
01.01.2022. Section 16(1) and (2) of the respective GST Acts as it stood at the
time of implementation in the year 2017 and immediately thereof its
implementation in the year 2017 and as it stands now is captured below:-
Section 16 of the CGST Act with effect Section 16 of the CGST Act with
from 01.07.2017 effect from 01.10.2023
16. Eligibility and conditions for 16. Eligibility and conditions for
taking Input Tax Credit. taking Input Tax Credit.
(1) Every registered person shall, subject (1) Every registered person shall,
to such conditions and restrictions as subject to such conditions and
may be prescribed and in the manner restrictions as may be prescribed and
specified in Section 49, be entitled to in the manner specified in Section 49,
take credit of input tax charged on any be entitled to take credit of input tax
supply of goods or services or both to charged on any supply of goods or
him which are used or intended to be services or both to him which are
used in the course of furtherance of his used or intended to be used in the
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Section 16 of the CGST Act with effect Section 16 of the CGST Act with
from 01.07.2017 effect from 01.10.2023
business and the said amount shall be course or furtherance of his business
credited to the electronic credit ledger of and the said amount shall be credited
such person. to the electronic credit ledger of such
(2) Notwithstanding anything contained person.
in this Section, no registered person shall (2) Notwithstanding anything
be entitled to the credit of any input tax contained in this Section, no
in respect of any supply of goods or registered person shall be entitled to
services or both to him unless,- the credit of any input tax in respect
(a) he is in possession of a tax invoice or of any supply of goods or services or
debit note issued by a supplier registered both to him unless,-
under this Act, or such other tax paying (a) he is in possession of a tax invoice
documents as may be prescribed; or debit note issued by a supplier
(b) he has received the goods or services registered under this Act, or such
or both. other tax paying documents as may be
prescribed; [(aa) the details of the
Explanation.- For the purposes of this invoice or debit note referred to in
clause, it shall be deemed that the clause (a) has been furnished by the
registered person has received the goods supplier in the statement of outward
or, as the case may be, services- supplies and such details have been
(i) where the goods are delivered by the communicated to the recipient of such
supplier to a recipient or any other invoice or debit note in the manner
person on the direction of such registered specified under Section 37.
person, whether acting as an agent or (b) he has received the goods or
otherwise, before or during movement of services or both.
goods, either by way of transfer of
documents of title to goods or otherwise; Explanation.- For the purposes of
(ii) where the services are provided by this clause, it shall be deemed that the
the supplier to any person on the registered person has received the
direction of and on account of such goods or, as the case may be,
registered person. services-
(c) subject to the provisions of Section (i) where the goods are delivered by
41, the tax charged in respect of such the supplier to a recipient or any other
supply has been actually paid to the person on the direction of such
Government, either in cash or through registered person, whether acting as
utilisation of input tax credit admissible an agent or otherwise, before or
in respect of the said supply; and during movement of goods, either by
(d) he has furnished the return under way of transfer of documents of title
Section 39. of goods or otherwise.
(ii) where the services are provided by
Provided that where the goods against the supplier to any person on the
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Section 16 of the CGST Act with effect Section 16 of the CGST Act with
from 01.07.2017 effect from 01.10.2023
an invoice are received in lots or direction of and an account of such
instalments, the registered person shall registered person.
be entitled to take credit upon receipt of (ba) the details of input tax credit in
the last lot or instalment. respect of the said supply
communicated to such registered
Provided further that where a recipient person under Section 38 has not been
fails to pay to the supplier of goods or restricted.
services or both, other than the supplies (c) subject to the provisions of
on which tax is payable on reverse Section 41, the tax charged in respect
charge basis, the amount towards the of such supply has been actually paid
value of supply along with tax payable to the Government, either in cash or
thereon within a period of one hundred through utilisation of input tax credit
and eighty days from the date of issue of admissible in respect of the said
invoice by the supplier, an amount equal supply; and
to the input tax credit availed by the (d) he has furnished the return under
recipient shall be added to his output tax Section 39.
liability, along with interest thereon, in
such manner as may be prescribed. Provided that where the goods
against an invoice are received in lots
Provided also that the recipient shall be or instalments, the registered person
entitled to avail of the credit of input tax shall be entitled to take credit upon
on payment made by him of the amount recipient of the last lot or instalment.
towards the value of supply of goods or
services or both along with tax payable Provided further that where a
thereon. 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
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Section 16 of the CGST Act with effect Section 16 of the CGST Act with
from 01.07.2017 effect from 01.10.2023
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.
75. Thus, under the substantive provision for availing Input Tax Credit
(ITC) is Section 16 of the GST Act, conditions or restrictions in availing
Input Tax Credit (ITC) could be imposed in the manner specified in Section
49 of the GST Acts which gives the power to the Central Government.
76. Thus it is evident that the conditions and restrictions can be
prescribed. The expression in Section 16(1) of the respective GST Acts i.e.,
subject to such conditions and restrictions as may be prescribed in the manner
specified in Section 49 of the respective GST Acts must be read conjunctively
with Section 37 of the respective GST enactments.
77. It is for this reason, Rule 36(4) of the respective GST Rules was
incorporated in 2019 vide amendments to the respective GST Rules to ensure
that full credit could be availed subject to the supplier also additionally
complying with the requirements under Section 37(1) of the respective GST
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enactments.
78. Apart from the above, the experience gained under the initial
experiments made under the provisions of the Central Excise Rules, 1944 from
the days of implementation of PROFORMA CREDIT to MODVAT CREDIT to
CENVAT CREDIT [from mid 1980s to 2004] and under the VAT regime under
the various VAT enactments of the States and the experience gained
immediately after the implementation and roll out of the GST laws, led the
Government to allow restricted credit if there was no compliance by the supplier
of the requirement of Section 37(1) of the respective GST enactments.
79. These restrictions were placed to ensure that unscrupulous persons
who were indulging in Circular Trading / Bill Trading by generating invoices
without actual supply of goods or services or both could not continue with their
nefarious activities leading to the loss to Exchequer and leakage of revenue of
the State and Centre.
80. These restrictions were placed to ensure that mere obtaining
registrations under the respective GST enactments and filing of few Returns
alone were not sufficient to allow 100% credit by a recipient of goods or service
or both under the new regime under the respective GST enactments.
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81. The system which had inherent weakness and allowed exploitation to
the hilt by the unscrupulous persons by masquerading as registered dealers on
paper to facilitate passing of ineligible Input Tax Credit (ITC) for discharging
the tax liability was thus regulated with the insertion of Rule 36(4) into the
respective GST Rules in 2019 with effect from 09.10.2019.
82. Insertion of Rule 36(4) into the respective GST Rules in the year 2019
was intended to not only protect the interests of the Government but also the
dealers / registered tax payers under the respective GST enactments so that they
are not later exposed to recovery proceedings if the tax was not indeed paid by
the supplier of goods and / or service.
83. That apart, credit availed under the respective regimes were and are
provisional and could and can be called upon to be paid back or reversed. In
this connection, a reference is also made to the decision of the Hon’ble Supreme
Court in “The State of Karnataka Vs. M/s.Ecom Gill Coffee Trading”,
(2023) 18 SCC 809 : (2023) 111 GSTR 1 : 2023 SCC OnLine SC 248, wherein
it was held as under:-
“22. In view of the above and for the reasons stated above and
in absence of any further cogent material like furnishing the
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name and address of the selling dealer, details of the vehicle
which has delivered the goods, payment of freight charges,
acknowledgment of taking delivery of goods, tax invoices
and payment particulars, etc. and the actual physical
movement of the goods by producing the cogent materials,
the assessing officer was absolutely justified in denying
ITC, which was confirmed by the first appellate authority.
Both, the second appellate authority as well as the High
Court have materially erred in allowing ITC despite the
purchasing dealers concerned having failed to prove the
genuineness of the transactions and failed to discharge the
burden of proof as per Section 70 of the KVAT Act, 2003.
The impugned judgment(s) and order(s) passed by the High
Court [State of Karnataka v. Tallam Apparels, 2021 SCC
OnLine Kar 15785], [State of Karnataka v. Ecom Gill
Coffee Trading (P) Ltd., 2021 SCC OnLine Kar 15783],
[CCT v. Rajshree Impex, 2021 SCC OnLine Kar 15784],
[Transworld Star Manjushree v. CCT, 2021 SCC OnLine
Kar 15782] and the second appellate authority allowing
ITC are unsustainable and deserve to be quashed and set
aside and are hereby quashed and set aside. The orders
passed by the assessing officer denying ITC to the
purchasing dealers concerned, confirmed by the first
appellate authority are hereby restored.”
84. The above view was also followed by a Division Bench of this Court
in “Tvl. Sahyadri Industries Limited Vs. State of Tamil Nadu” in the context
of Input Tax Credit (ITC) on 18.04.2023 in T.C.Nos.19, 20 & 21 of 2022 and
W.A.Nos.2607 & 2618 of 2021 & 451 of 2022 etc., batch.
85. Both the aforesaid decisions have been rendered after the
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implementation of the respective GST enactments but in the context of VAT
regime. Former case dealt with the Karnataka VAT Act, 2005 while the latter
case dealt with TNVAT Act, 2006. They highlight the bitter experience faced by
the tax administration by the State in its attempt to modernize the tax
administration.
86. In “Calcutta Gujarati Education Society Vs. Calcutta Municipal
Corporation”, (2003) 10 SCC 533, the Hon’ble Supreme Court held that the
rule of reading down a provision of law is a rule of harmonious construction in a
different name. It is resorted to smoothen the crudities or ironing out the
creases found in a statue to make it workable. In the garb of “reading down”,
however, it is not open to read the words and expressions not found in it and to
venture into a kind of judicial legislation. The rule of reading down is to be
used for the limited purpose of making a particular provision workable and to
bring it in harmony with other provisions of the statute. It is to be used keeping
in view the scheme of the statute and to fulfill its purposes.
87. In “B.R.Enterprises Vs. State of U.P.”, (1999) 9 SCC 700, which
was followed by the Hon’ble Supreme Court in Calcutta Gujarati Education
Society (cited supra), the Court held as under:-
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“First attempt should be made by the courts to uphold the
charged provision and not to invalidate it merely because
one of the possible interpretations leads to such a result,
howsoever attractive it may be. Thus, where there are two
possible interpretations, one invalidating the law and the
other upholding, the latter should be adopted. For this, the
courts have been endeavouring, sometimes to give
restrictive or expansive meaning keeping in view the nature
of legislation, maye beneficial, penal or fiscal etc.
Cumulatively, it is to subserve the object of the legislation.
Old golden rule is of respecting the wisdom of legislature
that they are aware of the law and would never have
intended for an invalid legislation. This also keeps courts
within their track and checks individual zeal of going
wayward. Yet in spite of this, if the impugned legislation
cannot be saved the courts shall not hesitate to strike it
down. Similarly, for upholding any provision, if it could be
saved by reading it down, it should be done, unless plain
words are so clear to be in defiance of the Constitution.
These interpretations spring out because of concern of the
courts to salvage a legislation to achieve its objective and
not to let it fall merely because of a possible ingenious
interpretation. The words are not static but dynamic. This
infuses fertility in the field of interpretation. This equally
helps to save an Act but also the cause of attack on the Act.
Here the courts have to play a cautious role of weeding out
the wild from the crop, of course, without infringing the
Constitution. For doing this, the courts have taken help
from preamble, Objects, the scheme of the Act, its historical
background, the purpose for enacting such a provision, the
mischief, if any which existed, which is sought to be
eliminated. … This principle of reading down, however,
will not be available where the plain and literal meaning
from a bare reading of any impugned provisions clearly
shows that it confers arbitrary, uncanalised or unbridled
power.”
88. The Judgment of the Hon’ble Delhi High Court in “On Quest
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Merchandising India Private Limited Vs. Government of NCT of Delhi &
Others” in W.P. (C) 6093/2017, cited by the Petitioner in support of its
contentions would not be applicable to the facts of the present case.
89. In the aforesaid case, the constitutional validity of Section 9(2)(g) of
the Delhi Value Added Tax, 2004 was challenged. To be eligible for ITC, the
purchasing dealer who, apart from being registered under the DVAT Act, had to
verify that the selling dealer was also a registered dealer and was holding a valid
registration under the DVAT Act. Section 9(2)(g) of the Delhi Value Added Tax,
2004 reads as under:-
(2) No Tax credit can be allowed
1. …
2. …
3. …
4. …
5. …
6. …
7. To the dealers or class of dealers unless the tax paid
by the purchasing dealer has actually been deposited
by the selling dealer with the Government or has been
lawfully adjusted against output tax liability and
correctly reflected in the return filed for the respective
tax period.”
90. There, the Hon’ble Delhi High Court in the facts and circumstances
held as follows:-
“53. In the light of the above legal position, the Court hereby
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holds that the expression ‘dealer or class of dealers’ occurring
in Section 9(2)(g) of the DVAT Act should be interpreted as not
including a purchasing dealer who has bona fide entered into
purchase transactions with validly registered selling dealers
who have issued tax invoices in accordance with Section 50 of
the Act where there is no mismatch of the transaction in
Annexure 2A and 2B. Unless the expression ‘dealer or class of
dealers’ in Section 9(2)(g) is ‘read down’ in the above manner,
the entire provision would have to be held to be violative of
Article 14 of the Constitution.
54. The result of such reading down would be that the
Department is precluded from invoking Section 9(2)(g) of the
DVAT to deny ITC to a purchasing dealer who has bonafide
entered into a purchase transaction with a registered selling
dealer who has issued a tax invoice reflecting the TIN number.
In the event the selling dealer has failed to deposit the tax
collected by him from the purchasing dealer, the remedy for the
Department would be to proceed against the defaulting selling
dealer to recover such tax and not deny the purchasing dealer
the ITC. Where, however, the Department is able to come across
the material to show that the purchasing dealer and the selling
dealer acted in collusion then the Department can proceed
under Section 40A of the Act.”
91. The above view is not correct and in any event cannot be applied to
hold that Rule 36(4) of the respective GST Rules are arbitrary for the reasons
explained by us. We had also taken a contra stand in Tvl. Sahyadri Industries
Limited's case (cited supra).
92. Relevant portion of Tvl. Sahyadri Industries Limited's case (cited
supra) is extracted hereunder:-
“131. In our view, input tax credit can be denied only if
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the invoices issued to the petitioners/appellants by the
registered dealers were bogus invoices and/or invariance with
the office copy of the invoice maintained at the registered
dealers end who effected such sale to the petitioners/appellants
and where there was no movement of goods for the
corresponding value declared in the original copy of invoice
contemplated under Rule 10(2) of TN VAT Rules, 2007.
132. However, if the petitioners/appellants have paid for
value of goods reflected in the original copy of the invoice in
their custody and there is no dispute on the same, mere
mismatch in credit information gathered at the registered
dealers end who effected sale to petitioners/appellants is of no
consequence if there are collateral evidence to show the
movement of goods for the value to the petitioners/appellants or
their consignees directly. Under these circumstances, we are of
the view that credit cannot be denied to that extent and the only
option available for the authorities is to recover tax not paid by
such dealer by invoking the machinery under TN VAT Act, 2007.
133. If a dealer claims input tax credit on purchases,
such dealer/purchaser will have to prove and establish the
actual physical movement of goods, genuineness of transactions
by furnishing the details referred above and mere production of
tax original invoices would not be sufficient to claim ITC in the
light of the decision of the Hon’ble Supreme Court in M/s.Ecom
Gill Coffee Trading Private Limited.
134. Therefore a dealer claiming ITC has to prove the
actual transaction of sale by furnishing the name and address of
the selling dealer, details of the vehicle which was/were used for
delivery of the goods, tax invoices and payment particulars etc.
The above information would be in addition to tax invoices,
particulars of payment etc., as held by the Hon’ble Supreme
Court in M/s.Ecom Gill Coffee Trading Private Limited.
135. In the light of the above decision of the Hon’ble
Supreme Court and in the light of the above discussion, we hold
that the challenge to the impugned orders in T.C.Nos.19 to 21 of
2022 has to fail. Considering the fact that there is no challenge
by the Commercial Tax Department insofar as the benefit of
decision of this Court in Jinsasan Distributors case referred to
supra has been conferred the rights that have already
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crystallized in favour of the assessees/petitioners in T.C.Nos.19
to 21 of 2022 alone are not disturbed. Since the cases have been
remitted back, these petitioners shall file their reply within 30
days. The authority shall pass orders in the light of the
observation contained herein.”
93. This view also cannot be applied in the changed circumstances under
the GST enactments. To allow Input Tax Credit (ITC) without any restrictions
is to encourage even ineligible credit being availed which are passed on by
unscrupulous persons by merely obtaining GST registration.
94. Similarly, the decision of the Hon’ble Punjab and Haryana High
Court in Gheru Lal Bal Chand's case (cited supra), relied by the Petitioner,
where the constitutional validity of a similar Section 8 of the Haryana VAT Act,
2003 was being considered, the Court held that law cannot envisage an almost
impossible eventuality and that law nowhere envisages imposing penalty either
directly or vicariously where a person is not connected with any such event or
an act. Thus, it is not the case in the present dispute.
95. The present Writ Petitions were filed in the month of February, 2020
after the implementation of the GST enactments. The GST enactments then
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were not as evolved as they are at present. However, after these Writ Petitions
were filed, the provisions have been strengthened to facilitate a legitimate
entrepreneur and / or a business entity to avail Input Tax Credit (ITC) with the
incorporation of Form GSTR – 2A under Rule 61 of the respective GST Rules
vide Notification No. 79/2020 Central Taxes (CT) dated 15.10.2020 with
effect from 15.10.2020.
96. With the incorporation of Form GSTR 2A, a dealer registered under
the provisions of the respective GST enactments is entitled to Input Tax Credit
(ITC) on the tax paid / borne on the tax paid by the supplier of goods or service
or both. It is auto-populated. It is available on the dashboard. Based on the
details of auto drafted inward supplies, the system now enables the recipient of
goods or service to avail Input Tax Credit (ITC) based on the stipulations in
Section 16 of the respective GST enactments and by drawing the information
from the system in FORM GSTR – 1, 5, 6, 7 and 8.
97. Thus, the system has evolved to allow a recipient to avail Input Tax
Credit (ITC) on the tax paid / borne on the tax paid by the supplier of goods or
service or both. Prior to that the Input Tax Credit (ITC) was being allowed
without the details being furnished at 20% , 10%, 5% as detailed in Table II of
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this Order has become irrelevant.
98. Once the details are captured, it enabled system and in the returns
filed by the supplier of goods or services. The recipient is entitled to avail full
Input Tax Credit (ITC). With effect from 15.10.2020 vide Notification
No.79/2020, Central Taxes (CT) dated 15.10.2020, the issue has been fully
resolved. Perhaps, it is for this reason why restricted Input Tax Credit (ITC)
was allowed at 20% which was later reduced to 10% and thereafter reduced to
5% was removed by amendment to Rule 36(4) vide Notification No.40/2021-
Central Tax (CT) dated 01.01.2022 / 10th (Amendment) Rules, 2021 under
CGST Rules and vide Notification No.SRO A/24(d)/2021 dated 30.12.2021 /
10th (Amendment) Rules, 2021 under TNGST Rules.
99. In our view, the amendment to Rule 36(4) starting from Notification
No.49/2019-Central Tax (CT) dated 09.10.2019 / 6th Amendment Rules, 2019 as
far as CGST Rules and Notification No.SRO A-39(a)/2019, dated 11.10.2019 /
6th Amendment Rules, 2019 as far as TNGST Rules allowing restricted
availment of Input Tax Credit (ITC) at 20%, thereafter at 10% and later at 5%
was intended to benefit the recipient to ensure that at least a portion of the Input
Tax Credit (ITC) was available pending furnishing of the documents with regard
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to return by the supplier of goods or service.
100. This restricted availment of Input Tax Credit (ITC) itself has been
now phased out in the IT system, since the IT system has been fully evolved
with the incorporation of Form GSTR 2A vide Notification No.79 dated
15.10.2020. Credit will be auto-populated. Therefore, the credit is available
which is auto-populated in Form GSTR 2A. Input Tax Credit (ITC) that is
availed is provisional. It can be asked to be paid back, if there are, any
violations either at the suppliers end or at the the recipient's end.
101. Restrictions imposed under Rule 36(4) of the respective GST Rules
to avail full credit of Input Tax in absence of the mandatory compliance by the
supplier of goods or service as is contemplated under Section 37(1) of the
respective GST Acts was a temporary measure to regulate the availing of Input
Tax Credit (ITC). Ipso facto, it cannot be held that Rule 36(4) of the respective
GST Rules is in violation of Article 14 of the Constitution of India.
102. We are not able to discern any violation of Article 14 of the
Constitution of India by virtue of the restrictions under Rule 36(4) of the
respective GST Rules. That apart, there is a presumption of constitutionality of
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GST enactments and Rules framed under the enactments. The restrictions were
placed with a view to implement the object of allowing legitimate Input Tax
Credit on the goods or service supplied by the supplier of goods or service as
the case may be by a recipient who was liable to pay tax on the output supply
was engaged in Zero Rated Supply within the meaning of the respective GST
enactments including Integrated Goods and Service Tax and the Rules made
thereunder.
103. That apart, the restrictions are reasonable and since they are intended
to implement the laudable object of allowing legitimate / eligible Input Tax
Credit (ITC). Therefore, the challenge to the restrictions imposed under Rule
36(4) of the respective GST Rules on the ground of it being arbitrary and
violative of Article 14 of the Constitution of India cannot be countenanced. As
such, these Writ Petitions are liable to be dismissed.
104. In any event, as mentioned above, the temporary deprivation of full
Input Tax Credit (ITC) has now been resolved with the implementation of Form
GSTR 2A vide Notification No. 79 dated 15.10.2020.
105. Thus, the issue had also become academic at this distant point of
time as the IT system has evolved. It enables the recipient to avail Input Tax
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Credit (ITC) on the strength of informations reflected in Form GSTR 2A
inserted vide Notification No.79 dated 15.10.2020.
106. However, the counsels argued the case as if the Petitioner was being
deprived of the Input Tax Credit (ITC) on account of insertion of Rule 36(4) of
the respective GST Rules. We are not impressed with the submission of the
Petitioner.
107. In the result, the challenge to Rule 36(4) of the respective GST Rules
as violative of Article 14 of the Constitution of India is not made out.
108. We are of the view that these Writ Petitions ought to have been
withdrawn. In any event, they are liable to be dismissed with cost. However,
we are refraining from imposing any cost.
109. These Writ Petitions are accordingly dismissed. No costs.
[R.S.K., J.] [C.S.N., J.]
09.05.2025
Neutral Citation : Yes / No
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arb
To:
1.The Revenue Secretary,
Union of India,
Department of Revenue,
Ministry of Finance,
128-A / North Block,
New Delhi.
2.The Secretary,
Government of Tamil Nadu,
Department of Commercial Taxes,
Fort St. George, Chennai – 600 006.
3.The Commissioner of Commercial Taxes,
Ezhilagam, Chepauk,
Chennai – 600 005.
4.The Assistant Commissioner (ST),
Nandambakkam State Tax Office,
17, 2nd Street, Loganathan Nagar,
Choolaimedu,
Chennai – 600 094.
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R.SURESH KUMAR, J.
and
C.SARAVANAN, J.
arb
Pre-Delivery Common Order in
W.P.Nos.5978 and 5983 of 2020
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W.P.Nos.5978 and 5983 of 2020
09.05.2025
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