Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 17TH DAY OF JULY 2024 / 26TH ASHADHA, 1946 WP(C) NO. 25264 OF 2024 PETITIONER/S:
NEETHU RAJAN, AGED 70 YEARS PROPRIETOR, ' ST. NICHOLAS CASHEW EXPORTS' KC - X- 944, CHEKKOTTT THEKKETHIL, ASRAMAM P.O, KOLLAM DISTRICT, PIN - 691002 BY ADVS.
BOBBY JOHN S.AJAYGHOSH KUMAR SANGEETHA S.KAMATH RESPONDENT/S:
1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, RAJPATH MARG, CENTRAL SECRETARIAT, NEW DELHI, PIN - 110001 2 THE DEPUTY COMMISSIONER, TAX PAYER SERVICE DIVISION, KOLLAM TAX COMPLEX, ASRAMAM P.O., KOLAM, PIN - 691002 3 THE COMMISSIONER, CENTRAL TAX & CENTRAL EXCISE, THIRUVANANTHAPURAM,P.B.NO.13, GST BHAVAN, PRESS CLUB ROAD, THIRUVANANTHAPURAM, PIN - 695001 4 THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS REPRESENTED BY THE PRINCIPAL COMMISSIONER GST, GST POLICY WING, NO.503, B WING, 5TH FLOOR, CBIC, HUDCO VISHALA BUILDING, BHIKAJI CAMA PLACE, R. K. PURAM, NEW DELHI, PIN - 110066 5 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 682031 6 THE COMMISSIONER, KERALA STATE GOODS AND SERVICE TAX DEPARTMENT,, 9TH FLOOR, TAX TOWER, KILLIPPALAM, KARAMANA P.O., THIRUVANANTHAPURAM, PIN - 695002 SMT. THUSHARA JAMES (SR GP) SRI, SREELAL N. WARRIER, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 25264 OF 2024 2 JUDGMENT
This writ petition has been filed, challenging Ext.P2 order issued by the 2nd respondent under Section 73 of the CGST/SGST Acts.
2.
Learned counsel appearing for the petitioner submits that a substantial portion of the demand in Ext.P2 is on account of the finding that excess input tax credit of Rs.4705308.74 has been availed by the petitioner. It is submitted that Ext.P1 (which is the auto-populated form GSTR-9) will indicate that the amount of Rs.4705308.74 had been paid by the petitioner as IGST on import of goods. It is submitted that the officer failed to take note of Ext.P1 while finalising the demand as per Ext.P2.
3.
Learned Senior Government Pleader would submit that the issue can be considered by the 2nd respondent, if this Court were to so direct. It is pointed out that no objections were filed by the petitioner to the notices issued by the 2nd respondent as is evident from a reading of Ext.P2 order itself.
4.
Having heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader and having regard to the facts and circumstances of the case and taking note
WP(C) NO. 25264 OF 2024 3 of the contents of Ext.P1, I am of the opinion that the question as to whether the petitioner had paid IGST of Rs.4705308.74 in respect of which credit was claimed by him has to be considered by the 2nd respondent. As rightly contended by the learned counsel appearing for the petitioner, the major portion of the demand in Ext.P2 arises out of the finding that the petitioner had wrongly claimed input tax credit of Rs.4705308.74. Further it does not appear from Ext.P2 that the 2nd respondent had taken note of Ext.P1. Though it was for the petitioner to have filed his objections to the notice, I am of the view that interest of justice demands that Ext.P2 be set aside and the matter be remanded to the files of the 2nd respondent, who shall pass fresh orders in the matter, after affording an opportunity of hearing to the petitioner.
Accordingly, the writ petition is allowed by setting aside Ext.P2 and remanding the matter of assessment of the petitioner under the CGST/SGST Acts for the year 2018-19 to the files of the 2nd respondent. The 2nd respondent shall pass fresh orders as directed above, within an outer limit of two months from the date of receipt of a certified copy of this judgment.
Sd/- GOPINATH P., JUDGE ajt
WP(C) NO. 25264 OF 2024 4 APPENDIX OF WP(C) 25264/2024 PETITIONER EXHIBITS Exhibit P 1 TRUE COPY OF THE GSTR 9 OF THE PETITIONER FOR THE YEAR 20118-19 Exhibit P2 . TRUE COPY OF THE SAID ORDER DATED 20.02.2024 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER, FOR THE YEAR 2018-19 Exhibit P3 TRUE COPY OF THE STATEMENT SHOWING IGST PAID ON IMPORT OF GOODS MADE BY THE PETITIONER DURING 2018-19 WITH CORRESPONDING BILL OF ENTRIES Exhibit P4 TRUE COPY OF THE NOTIFICATION 9/2023 - CENTRAL TAX, DATED 31.03.2023 ISSUED BY THE CENTRAL GOVERNMENT Exhibit P5 TRUE COPY OF THE INTERIM ORDER DATED 18.01.2024, PASSED BY THE PUNJAB & HARYANA HIGH COURT IN CWP 1138 & 1140 OF 2024