M/S. Vishwanath Iron Store vs The Union Of India To The Secretary
2023 Latest Caselaw 5108 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.1384 of 2021
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M/s. Vishwanath Iron Store, a partnership firm having its place of business at Allahabad Bank Side, Pani Tanki Road, Dehri-on-Sone through its partner namely Arvind Kumar Sharma male aged about 35 years son of Jagarnath Sharma resident of Allahabad Bank side, Pani Tanki Road, Dehri-on-Sone, Rohtas- 821307.

... ... Petitioner/s Versus

1. The Union of India to the Secretary, Ministry of Railways, Government of India New Delhi.

2. The General Manager, East Central Railway, Hazipur.

3. The Principal Chief Materials Manager, East Central Railway, Hazipur.

4. The Deputy Chief Material Manager (Depot), East Central Railway, Samastipur.

5. The Financial Advisor and Chief Accounts Officer, East Central Railway, Hazipur.

6. The State of Bihar through the Principal Secretary cum Commissioner, Department of State Taxes, Government of Bihar, Patna.

7. The Joint Commissioner of State Taxes, Sasaram Circle, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Gautam Kumar Kejriwal, Advocate For the Respondent/s : Dr. K. N. Singh, ASG Mr. Anshuman Singh, CGC.

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE RAJIV ROY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date: 06-10-2023

The petitioner, who is an assessee under the

goods and services tax regime, seeks for correction of an

invoice for the purpose of availing input tax credit.

2. The petitioner is a partnership firm having its

place of business at Sasaram within the State of Bihar. The Patna High Court CWJC No.1384 of 2021 dt. 06-10-2023

partnership firm is engaged in the business of sale and purchase

of scrap materials and is registered under the Bihar State Goods

and Services Tax Act, 2017. The petitioner applied pursuant to a

tender issued by the East Central Railways, for sale of scrap and

other such materials by way of an e-auction. The petitioner

turned out successful and on the basis of a sale invoice,

produced at Annexure-2, the materials auctioned having a total

worth of Rs. 17 lakhs, was taken possession of by the petitioner.

The invoice at Annexure-2 levied CGST and SGST at 9% each.

The petitioner on the basis of the invoice paid the amounts and

obtained possession of the materials.

3. It is the submission of the petitioner that the

partners of the petitioner were not aware of the requirements

and only later, when the tax consultant was apprised of the

delivery/sale invoice, it was pointed out that since the goods

were taken possession of in Jharkhand and moved to outside the

State, what was to be levied was IGST and not CGST and

SGST. In the above circumstances, the petitioner is denied the

input tax credit, is the claim raised.

4. The petitioner also points out to the various

notifications issued by the Railways, which speak of the invoice

having been issued only by reason of a mistake and the tax Patna High Court CWJC No.1384 of 2021 dt. 06-10-2023

collected having been deemed to be collected as IGST and not

as CGST and SGST. The learned counsel for the petitioner

seeks a writ of mandamus to the authorities of the Railways for

issuing of a fresh invoice; for the purpose of availing input tax

credit.

5. Admittedly, the goods were delivered at

Jharkhand and the sale is shown to be a local sale, as evidenced

from delivery/sale release order itself. The petitioner received

the goods at Jharkhand. If the petitioner had intended to move

the material out of the State, the petitioner should have specified

it and also insisted that the sale be treated as an Inter-State one.

The auction though conducted in Samastipur, the sale was to be

effected from Jharkhand and unless the sale occasions the

movement of goods outside the State, it cannot be termed as an

Inter-State sale.

6. In the present case, the petitioner is a dealer

registered under the BGST Act and the sale was effected from

the State of Jharkhand. However, there is absolutely nothing to

prove the movement of goods to the State of Bihar. The mere

statement of the Railways that the invoice issued should be

deemed to have been issued under the IGST Act, cannot enable

the petitioner to seek input tax credit. The transaction between Patna High Court CWJC No.1384 of 2021 dt. 06-10-2023

the Railways and the petitioner would not regulate the tax

liability and in any event, the tax levied and collected as CGST

and SGST would have been credited to the respective head of

account. There can be no understanding between the parties to

the transaction that what has been paid as SGST and CGST is to

be deemed to be paid as IGST without due compliance of th

provisions of the taxation enactment. Such understanding

cannot also regulate an input tax credit without such credit being

shown in the ledger account maintained by the assessee with the

Department.

7. In this context, we have to reiterate that even

in the writ petition there is nothing produced to prove that the

goods had, in fact, moved outside the State of Jharkhand.

8. We also have to notice that the invoice is one

issued in assessment year 2017-18. The petitioner has filed the

above writ petition in the year 2021 when the enabling provision

for claiming input tax credit would not have been available in

any event. Section 16(4) of the BGST Act, enables the input tax

credit to be taken in respect of any invoice or debit note, in the

case of a supplier, goods or services or both, after the due date

of furnishing of the return under Section 39, in the month of

September following the end of financial year to which such Patna High Court CWJC No.1384 of 2021 dt. 06-10-2023

invoice relating to such debit note pertains or furnishing of the

relevant annual return, whichever is earlier. The present invoice

is dated 23.10.2017 and hence, the input tax credit has to be

claimed before 28.11.2017 or furnishing of the annual return for

the assessment year 2017-18, whichever is earlier. There is

absolutely no possibility of the input tax credit being availed of

at this point.

9. We find absolutely no reason to direct the

Railways to issue a revised invoice nor can the same be

permitted.

10. Writ petition stands dismissed.

11. Interlocutory application, if any, shall stand

disposed of.

(K. Vinod Chandran, CJ)

( Rajiv Roy, J) Sujit/-

AFR/NAFR                NAFR
CAV DATE
Uploading Date          10.10.2023
Transmission Date