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. 25437 OF 2024 PETITIONER:
E.C.NAZER, AGED 68 YEARS PROPRIETOR, MPC HOSPITAL PHARMACY 21/834, WAYNAD ROAD, KODUVALLY, KOZHIKODE, PIN – 673 572.
BY ADVS.
R.JAIKRISHNA NARAYANI HARIKRISHNAN C.S.ARUN SHANKAR ANISH P.
RESPONDENTS:
1 STATE TAX OFFICER, TAXPAYER SERVICES CIRCLE THAMARASSERY, STATE GOODS AND SERVICES TAX DEPARTMENT, GST COMPLEX, JAWAHAR NAGAR, ERANHIPALAM P.O, KOZHIKODE, PIN – 673 006.
2 JOINT COMMISSIONER OF STATE TAX (APPEALS), STATE GOODS AND SERVICES TAX DEPARTMENT, NIRMAL ARCADE, ERANHIPALAM P.O, KOZHIKODE, PIN – 673 006.
3 DEPUTY COMMISSIONER (ARREAR RECOVERY), TAX-PAYER SERVICES STATE GOODS AND SERVICES TAX DEPARTMENT, JAWAHAR NAGAR COLONY, ERANHIPALAM P.O, KOZHIKODE, PIN – 673 006.
BY ADV. JASMINE MM (GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.25437/2024 2 JUDGMENT The claim of the petitioner for input tax credit for the year 2017-2018 was rejected on account of the provisions contained in Section 16(2)(c) of the Central Goods and Services Tax/State Goods and Services Tax Act, 2017 (CGST/SGST Act). A batch of writ petitions challenging the constitutional validity of Section 16(2)(c) of the CGST/SGST Act was disposed of by this Court by judgment in M.Trade Links v. Union of India; 2024 KLT OnLine 1624, rejecting the challenge to the constitutional validity of Section 16(2)(c) of the CGST/SGST Act. However, it was directed 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”.
W.P.(C)No.25437/2024 3 The petitioner suffered Ext.P5 order of assessment, against which the petitioner filed an appeal before the First Appellate Authority. The appeal was dismissed by Ext.P9 order on the ground of limitation.
2.
The learned counsel appearing for the petitioner submits that in the light of the directions issued by this Court in M.Trade Links (Supra), the petitioner may be permitted to approach the assessing authority claiming the benefit of the Circulars referred to in the judgment of this Court in M.Trade Links (Supra).
3.
Heard the learned Government Pleader also.
4.
Having heard the learned counsel for the petitioner and the learned Government Pleader and having regard to the facts and circumstances of the case and the directions issued by this Court in M.Trade Links (Supra), I am of the view that the petitioner can also be permitted to approach the assessing authority claiming the benefit of the Circulars referred to in the aforesaid judgment of this Court. In order to enable the petitioner to approach the
W.P.(C)No.25437/2024 4 assessing authority, Ext.P5 order of assessment and Ext.P9 order of the First Appellate Authority will stand set aside.
It is clarified that Ext.P5 order will stand set aside only to the extent of denial of input tax credit on account of the provisions contained in Section 16(2)(c) of the CGST/SGST Act and the petitioner will be granted the benefit of input tax credit only if the claim of the petitioner is covered by the instructions contained in the Circulars referred to in the judgment of this Court in M.Trade Links (Supra).
The assessing authority, namely the 1st respondent, shall pass fresh orders, as directed above, within a period of one month from the date of receipt of a certified copy of this judgment and after affording an opportunity of hearing to the petitioner.
Writ petition is disposed of as above.
Sd/- GOPINATH P.
JUDGE ats
W.P.(C)No.25437/2024 5 APPENDIX OF WP(C) 25437/2024 PETITIONER’S EXHIBITS Exhibit P1 A TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY STARCARE HOSPITAL, KOZHIKODE TO PETITIONER DATED 7.9.2023.
Exhibit P2 A TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY MPC HOSPITAL, KOZHIKODE DATED 18.12.2023 Exhibit P3 A TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED DR. SATHYAN OF MPC HOSPITAL DATED 27.2.2024.
Exhibit P4 A TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY STARCARE HOSPITAL, KOZHIKODE TO PETITIONER DATED 8.5.2024.
Exhibit P5 A TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR AY 2017-2018 DATED 13.10.2023.
Exhibit P6 A TRUE COPY OF THE ARREAR RECOVERY NOTICE ISSUED BY THE 3RD RESPONDENT DATED 16.3.2024.
Exhibit P7 A TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 2.4.2024.
Exhibit P8 A TRUE COPY THE STATEMENT OF DECLARATIONS OBTAINED BY THE PETITIONER ALONG WITH DECLARATIONS.
Exhibit P9 A TRUE OF THE APPELLATE ORDER ISSUED BY THE 2ND RESPONDENT DATED 7.6.2024.