Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 23RD DAY OF JULY 2024 / 1ST SRAVANA, 1946 WP(C) NO. 16814 OF 2024 PETITIONER/S:
ANOOP P DIVAKARAN, LEGAL HEIR OF DECEASED A.DIVAKARAN, AGED 39 YEARS, M/S.A-ONE BUILDERS, PUTHENPURAYIL HOUSE, VADATTUPARA, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686681 BY ADVS.
P.N.DAMODARAN NAMBOODIRI HRITHWIK D. NAMBOOTHIRI RESPONDENT/S:
1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE, (DEPARTMENT OF REVENUE), NORTH BLOCK, NEWDELHI, PIN - 110001 2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 3 COMMISSIONER, CENTRAL GOODS AND SERVICES TAX AND C.E.DEPARTMENT, CENTRAL TAX AND CENTRAL EXCISE, C.R.BUILDING , I.S.PRESS ROAD, COCHIN, PIN - 682018 4 SUPERINDENT, CENTRAL TAX AND CENTRAL EXCISE, KOTHAMANGALAM RANGE, K.P.C.TOWERS, T.B.JUNCTION, MUVATTUPUZHA, PIN - 686661 BY ADV DENNIS VARGHESE SRI. SREELAL N. WARRIER- SC SRI. T.C. KRISHNA, DSGI-IN-CHARGE SMT. THUSHARA JAMES, SR. GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 16814 OF 2024 2 JUDGMENT
The petitioner is the son of one A. Divakaran, who expired on 28.10.2021. The late A. Divakaran was an assessee under the CGST/SGST Acts. He suffered Ext.P5 order of assessment for the year 2018-19. Petitioner has approached this Court, being aggrieved by the fact that the input tax credit has been denied on account of the provisions contained in Section 16(4) of the CGST/SGST Acts.
2. A challenge has been raised to the constitutional validity of Section 16(4) of the CGST/SGST Acts. This issue appears to be covered against the petitioner by the judgment of this Court in M. Trade Links V. Union of India (2024 KLT Online 1624).
3.
Heard both sides.
4.
Having heard the learned counsel appearing for the petitioner, the learned Government Pleader and the learned Standing Counsel appearing for the Central Tax and Central Excise, I am of the view that, in the above facts and circumstances and taking into consideration the directions issued by this Court in M. Trade Links (supra), this writ
WP(C) NO. 16814 OF 2024 3 petition can be disposed of, setting aside Ext. P5 assessment order to the extent that it denied input tax credit on account of the provisions contained in Section 16(4) of the CGST/SGST Acts and directing that the claim of the petitioner be considered in terms of the directions issued by this Court in M. Trade Links (supra). The challenge raised to the constitutional validity of Section 16(4) of the Acts is repelled in the light of the findings of this Court in M. Trade Links .
In the light of the above, Exts.P5 order is set aside to the extent that it denies input tax credit on account of the provisions contained in Section 16(4) of the CGST/SGST Act and it is directed that benefit of the directions contained in the judgment in M.Trade Links (supra) shall also be extended to the petitioner. The competent among the respondents shall consider the directions contained in the judgment of this Court in M.Trade Links (supra) and pass orders considering the factual situation in this case, after affording an opportunity of hearing to the petitioner, within three months from the date of receipt of a certified copy of this judgment. The coercive proceedings (to the extent of input tax, which was denied to the petitioner on
WP(C) NO. 16814 OF 2024 4 account of the provisions contained in Section 16(4) of the CGST/SGST Acts) shall stand suspended till a decision is taken by the respondent, as directed above.
The writ petition is ordered accordingly.
Sd/- GOPINATH P.
JUDGE ajt
WP(C) NO. 16814 OF 2024 5 APPENDIX OF WP(C) 16814/2024 PETITIONER EXHIBITS Exhibit -P1 TRUE COPY OF THE DEATH CERTIFICATE OF A.DIVAKARAN DATED 02.11.2021.
Exhibit -P2 TRUE COPY OF THE REGISTRATION CANCELLATION ORDER REF. NO. ZA320422019509T DATED 20.04.2022 WAS ISSUED BY THE 4TH RESPONDENT .
Exhibit -P3 TRUE COPY OF THE SHOW CAUSE NOTICE HAVING NO.18/2023-24 GST DATED 21.11.2023 WAS ISSUED U/S.73(1) OF THE ACT, 2017 BY THE 4TH RESPONDENT .
Exhibit - P4 . TRUE COPY OF THE PERSONAL HEARING NOTICE O.C.NO.221/2023 DATED 28.12.2023 ISSUED BY THE 4TH RESPONDENT .
Exhibit - P5 TRUE COPY OF THE ORDER UNDER SECTION 73 OF THE ACT HAVING NO.03/2024/GST DATED 15.04.2024 FOR THE MONTH OF MARCH 2019 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.
Exhibit - P6 TRUE COPY OF THE INTERIM ORDER DATED 23.04.2024 IN W.P.(C).NO. 16250/2024.