Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 19TH DAY OF JULY 2024 / 28TH ASHADHA, 1946 WP(C) NO. 20792 OF 2024 PETITIONER/S:
ABDUL VAHID,AGED 62 YEARS PROPRIETOR, M/S. NATIONAL TEA STORE, IKYA JUNCTION, KAYAMKULAM, ALAPPUZHA, PIN - 690502 BY ADVS.
R.SREEJITH K.KRISHNA ACHYUTH MENON PADMANATHAN K.V.
RESPONDENT/S:
1 STATE TAX OFFICER, STATE GST DEPARTMENT, MINI CIVIL STATION, KAYAMKULAM, ALAPPUZHA, PIN - 690502 2 THE JOINT COMMISSIONER (APPEALS), STATE GST DEPARTMENT, KOTTAYAM, PIN - 686002 3 UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), NORTH BLOCK, NEW DELHI, PIN - 110001 4 CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS, GST POLICY WING, NORTH BLOCK, NEW DELHI, REPRESENTED BY PRINCIPAL COMMISSIONER (GST)., PIN - 110001 5 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPT., GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001 DR. THUSHARA JAMES, SR. GP SRI. SREELAL N. WARRIER, SC, THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 20792 OF 2024 2 JUDGMENT
The petitioner is an assessee under the CGST/SGST Acts.
He suffered Ext.P2 order of assessment for the year 2017-18.
Petitioner has approached this Court, being aggrieved by the fact that the input tax credit has been denied to the petitioner on account of the provisions contained in Section 16(2)(c) of the CGST/SGST Acts.
2. A challenge was raised to the constitutional validity of Section 16(2)(c) 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). However, this Court permitted the assessees, to whom the credit had been denied on account of the provisions contained in Section 16(2)(c) of the CGST/SGST Acts, to claim the benefit of two Circulars dated 27.12.2022 and 17.07.2023.
Paragraph No.101 of the judgment of this Court in M. Trade Links (supra) reads as follows:-
‘’101. The liberty is granted to the petitioners, who can claim the benefit of the two Circulars, namely, Circular No. 183/15/2022- GST dated 27.12.2022 and Circular No.
193/05/2023- GST dated 17.07.2023 to make their claim within one month from today before the appropriate authority who shall examine the claim of the individual dealer and process the claim.’’
WP(C) NO. 20792 OF 2024 3
3. Though the petitioner filed an appeal against Ext.P2 order, the same has been dismissed by Ext.P4 order. The petitioner is unable to file any further appeal against Ext.P4 order on account of the fact that the Tribunal has not been constituted so far.
4.
Heard the learned Senior Government Pleader also.
5.
Having heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader, 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 petition can be disposed of setting aside Exts.P2 and P4 orders to the extent that they denied input tax credit on account of the provisions contained in Section 16(2)(c) 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) and on the basis of the stipulations contained in the Circulars dated 27.12.2022 and 17.07.2023 referred to above. The challenge raised to the constitutional validity of Section 16(2)(c) of the Acts is repelled in the light of the findings of this Court in M.
Trade Links .
WP(C) NO. 20792 OF 2024 4
Accordingly, Exts.P2 and P4 are set aside. The matter is remitted to the files of the 1st respondent to consider the claim in terms of the directions contained in the judgment of this Court in M. Trade Links (Supra) and also with reference to the provisions contained in Circulars dated 27.12.2022 and 17.07.2023 referred to above, after affording an opportunity of hearing to the petitioner. The 1st respondent shall pass necessary orders in this regard within a period of 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 account of the provisions contained in Section 16(2)(c) of the CGST/SGST Acts) shall stand suspended till a decision is taken by the 1st respondent, as directed above.
The writ petition is ordered accordingly.
Sd/- GOPINATH P.
JUDGE ajt
WP(C) NO. 20792 OF 2024 5 APPENDIX OF WP(C) 20792/2024 PETITIONER EXHIBITS Exhibit P1 COPY OF SHOW CAUSE NOTICE ISSUED BY THE 1ST RESPONDENT DTD. 28-06-2021 Exhibit P2 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2017-18 DTD. 21-05- 2022 Exhibit P3 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 31-08-2022 Exhibit P4 COPY OF APPEALLATE ORDER IN GSTA (ALPY) NO.
91/2023 ISSUED BY THE 2ND RESPONDENT DTD. 28- 02-2024 Exhibit P5 COPY OF ORDER IN WPC NO. 17202/24 OF THIS HON'BLE COURT DTD. 10-05-2024