Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 24TH DAY OF JULY 2024 / 2ND SRAVANA, 1946 WP(C) NO. 16259 OF 2024 PETITIONER:
TIRUPATI BALAJI TRADERS, REPRESENTED THROUGH ITS MANAGING PARTNER, MAHESH KUMAR CHANGOIWALA 66/2321, GROUND FLOOR, ARANGATH ROAD, ERNAKULAM, COCHIN, PIN – 682 018.
BY ADVS.
NITISH SATHESH SHENOY SHERRY SAMUEL OOMMEN SUKUMAR NAINAN OOMMEN RESPONDENTS:
1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), NO 137, NORTH BLOCK, NEW DELHI, PIN – 110 001.
2 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE SECRETARIAT, KERALA, PIN – 695 001.
3 THE ADDITIONAL COMMISSIONER, OFFICE OF THE COMMISSIONER, CENTRAL TAX & CENTRAL EXCISE, CENTRAL REVENUE BUILDING, IS PRESS ROAD, KOCHI, PIN – 682 018.
4 THE DEPUTY COMMISSIONER, TAX PAYER SERVICES, CENTRAL TAX & CENTRAL EXCISE, 4TH FLOOR, GST BHAVAN, KATHRIKADAVU, KALOOR, KOCHI, PIN – 682 017.
5 THE ASSISTANT COMMISSIONER, CENTRAL TAX & CENTRAL EXCISE, CENTRAL REVENUE BUILDING, IS PRESS ROAD, KOCHI, PIN – 682 018.
WP(C) NO. 16259 OF 2024 2 6 THE SUPERINTENDENT, RANGE - 6, 4TH FLOOR, GST BHAVAN, KATHRIKADAVU, KALOOR, KOCHI, PIN – 682 017.
7 THE SUPERINTENDENT, RANGE - 2, 4TH FLOOR, GST BHAVAN, KATHRIKADAVU, KALOOR, KOCHI, PIN – 682 017.
8 THE ASSISTANT COMMISSIONER - ASSESSMENT, SPECIAL CIRCLE - II / DEPUTY COMMISSIONER, SGST THEVARA, PIN – 682 015.
9 MR VICHITRA NARAYAN PATHAK, RESOLUTION PROFESSIONAL, GOLDEN TOBACCO LIMITED, 120, JHARNESHWAR COLONY, MADHUBAN VIHAR, NEAR INTERNATIONAL SCHOOL HOSHANGABAD ROAD, BHOPAL, PIN – 462 047.
BY ADVS A.K.PREETHA (S.C)(FOR R3 TO R7) T C KRISHNA (SR PANEL COUNSEL) JASMINE M M (GP) ( THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 16259 OF 2024 3 JUDGMENT The issues raised in this writ petition are substantially covered against the petitioner by a judgment of a learned Single Judge of this Court in M.Trade Links v. Union of India [2024 KLT OnLine 1624]. I am in respectful agreement with the view taken by this Court in M.Trade Links (Supra).
2.
Though the learned counsel appearing for the petitioner has extensively argued that if an interpretation is placed on the provisions of Section 16(2)(c) of the Central Goods and Services Tax/State Goods and Services Tax Act, 2017 (CGST/SGST Act) that would deny input tax credit to a purchasing dealer who has paid the entire amount of tax to the supplying dealer, the same would render otiose the provisions of Sections 75(12), 76, 79, 82, 83 and 88 of the CGST/SGST Act and in the facts and circumstances of this case the Insolvency and Bankruptcy Code, 2016, I find that since the right to avail input tax
WP(C) NO. 16259 OF 2024 4 credit is a conditional right, the petitioner cannot be given the benefit of input tax credit unless the amount of tax collected from the petitioner has actually been paid to the exchequer. I am fortified in taking the above view in the light of the observations of a Division Bench of this Court in Nahasshukoor v. Assistant Commissioner and Others; 2023 SCC OnLine Ker 11369, where this Court held as follows:
“ xxxx xxxx xxxx As stated already, the input tax credit is in the nature of a benefit or concession conferred under the statute. The impugned provisions prescribe certain conditions for the purchasing dealers to avail of the benefit. It is up to the purchasing dealer to avail of the said benefit/concession following those conditions.
xxxx xxxx xxxx”
In the light of the above, the writ petition fails and it is accordingly dismissed.
Sd/- GOPINATH P.
JUDGE ats
WP(C) NO. 16259 OF 2024 5 APPENDIX OF WP(C) 16259/2024 PETITIONER’S EXHIBITS Exhibit P1 A TRUE COPY OF THE ORDER DATED 26.12.2023 PASSED BY THE 3RD RESPONDENT BEARING DIN "20231258T1000000ALAB".
Exhibit P2 A TRUE COPY OF THE FORM DRC - 07 DATED 29.12.2023.
Exhibit P3 A TRUE COPY OF THE SCN DATED 26.09.2023.
Exhibit P4 A TRUE COPY OF THE NOTICE IN FORM GST ASMT - 10 DATED 01.03.2023.
Exhibit P5 A TRUE COPY OF THE NOTICE OF DISCREPANCY DATED 13.04.2023.
Exhibit P6 A TRUE COPY OF THE REPLY DATED 27.04.2023 SUBMITTED BY THE PETITIONER.
Exhibit P7 A TRUE COPY OF THE LETTER DATED 05.05.2023 (WITH ANNEXURE 3, ORDER OF THE HON'BLE NCLT DATED 07.06.2022).
Exhibit P8 A TRUE COPY OF THE LETTER DATED 04.09.2023 (WITHOUT ANNEXURE 1).
Exhibit P9 A TRUE COPY OF THE INTIMATION IN FORM GST DRC - 01A DATED 05.09.2023 ISSUED BY THE 3RD RESPONDENT.
Exhibit P10 A TRUE COPY OF THE LETTER DATED 14.09.2023 ALONG WITH THE RELEVANT ANNEXURES.
Exhibit P11 A TRUE COPY OF THE LETTER DATED 04.12.2023 FILED BY THE PETITIONER.
WP(C) NO. 16259 OF 2024 6 Exhibit P12 A TRUE COPY OF THE RECORD OF PERSONAL HEARING DATED 05.12.2023.
Exhibit P13 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN DIYA AGENCIES VS STATE TAX OFFICER - 1 REPORTED IN (2023) 11 CENTAX 203.
Exhibit P14 A COPY OF THE LETTERS DATED 29.02.2023.
Exhibit P15 A COPY OF THE LETTER 07.03.2023.
Exhibit P16 A TRUE COPY OF THE REPLY DATED 15.03.2024.
Exhibit P17(A) A TRUE COPY OF NOTIFICATION NO 6/2020 DATED 03.02.2020.
Exhibit P17(B) A TRUE COPY OF NOTIFICATION NO 35/2020 DATED 03.04.2020 (AS DULY AMENDED) Exhibit P17(C) TRUE COPY OF NOTIFICATION 14/2021 DATED 01.05.2021 (AS DULY AMENDED) Exhibit P18 TRUE COPY OF NOTIFICATION NO 9/2023 DATED 31.03.2023.
Exhibit P19(A) TRUE COPY OF THE ORDER OF THE HON'BLE GUJARAT HIGH COURT IN SPECIAL CIVIL APPLICATION NO 21165 OF 2023 DATED 21.12.2023.
Exhibit P19(B) A TRUE COPY OF THE ORDER OF THE HON'BLE GUWAHATI HIGH COURT IN WPC 529 OF 2024 DATED 12.02.2024.
WP(C) NO. 16259 OF 2024 7 Exhibit P20(A) TRUE COPY OF THE RELEVANT EXTRACT OF THE 47TH MEETING OF THE GST COUNCIL HELD ON 28.06.2022 Exhibit P20(B) TRUE COPY OF THE RELEVANT EXTRACT OF THE 49TH MEETING OF THE GST COUNCIL HELD ON 18.02.2023