Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 1ST DAY OF APRIL 2024 / 12TH CHAITHRA, 1946 WP(C) NO. 10949 OF 2024 PETITIONER/S:
M/S.M J GOLD T C NO. X/1095, COPPEN LANE, NEAR NEW CHURCH ROAD, THRISSUR, REPRESENTED BY ITS MANAGING PARTNER, SRI. M K ANTOCHAN., PIN - 680001 BY ADV TOMSON T.EMMANUEL RESPONDENT/S:
1 STATE TAX OFFICER TAX PAYER SERVICES CIRCLE, THRISSUR CITY, STATE GST COMPLEX, POOTHOLE, THRISSUR, PIN - 680004 2 CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI, REPRESENTED BY ITS UNDER SECRETARY, PIN - 110023 3 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF TAXES, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 4 COMMISSIONER OF STATE TAX STATE GOODS AND SERVICE TAX DEPARTMENT, 9TH FLOOR, TAX TOWER, KILLIPALAM, KARAMANA P O; THIRUVANANTHAPURAM, PIN - 695022 OTHER PRESENT:
SMT. JASMIN M.M.- GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 10949 OF 2024 2 JUDGMENT Dated this the 1st day of April, 2024 The present writ petition has been filed by the petitioner, who is a registered dealer under the provision of CGST / SGST Act, 2017 and rules made there under, challenging Ext.P5 assessment order, whereby the petitioner’s claim for input tax credit for an amount of Rs.8,18,160/- and same amount as SGST has been disallowed and total demand has been raised for Rs. 34, 74, 860/- which would include the interest and penalty as per Ext.P5 order.
2. Petitioner had filed annual return for GST online for the financial year 2017-2018. Some discrepancies were noticed in the return filed by the petitioner. Petitioner was served electronically with notice in GST ASMT 10. Further information in GST DRC 01A was issued to the petitioner on their email id, in order to intimate the discrepancy noticed in its GSTR-9. The petitioner filed reply on 01.10.2020 to the said notice dated 23.09.2020, submitting that the detailed reply and relevant documents shall be submitted on 27.10.2020.
3. Despite this undertaking that the detailed reply and relevant documents in support of their claim would be submitted by 27.10.2020, no reply was filed by the petitioner. Therefore, the case
WP(C) NO. 10949 OF 2024 3 was recommended for further proceedings under Section 73 of the CGST/SGST Act, 2017 and a show cause notice under Section 73(1) of the CGST/SGST Act, 2017 was issued to the petitioner along with the annexure detailing the violations noticed during the scrutiny.
Summary in FORM DRC-01 was issued electronically to the petitioner as per Rule 142(1)(a) of the GST Rules. No reply was filed to the said show cause notice. A reminder notice was issued on 12.09.2022. However no reply was filed to the reminder notice as well. The 2nd reminder notice was issued to the petitioner in accordance with State Circular No. 07/2023 dated 12.01.2023.
However, no reply was given to the 2nd reminder notice as well. The petitioner was also given an opportunity to submit his reply/objections/proof at the time of personal hearing which was scheduled on 20.06.2023. The authorised person of the petitioner appeared for personal hearing on 20.06.2023 and submitted a request asking more time for filing detailed reply and producing evidence in proof of their claims. Thereafter, no detailed reply was filed and no document was produced. Further notices were issued to the petitioner on 29.07.2023 and 210.10.2023, however, no reply was filed by the petitioner herein.
4. The aforesaid facts would show the conduct of the petitioner. There had been ample opportunities given to the
WP(C) NO. 10949 OF 2024 4 petitioner to prove his claim by submitting documentary evidence regarding their claim for ITC claimed in their return. The petitioner had never come forward to submit any reply as it is evident from the assessment order itself, and now the petitioner is making a prayer for the matter to be remanded back. When the petitioner themselves have failed to avail the opportunities, one after another given to them, since September 2020 to October 2023, this court cannot entertain the request made by the petitioner as their has been no procedural impropriety and infarction of any provision by the assessing authority.
In view thereof, I find no substance in this writ petition ,which is hereby dismissed.
Sd/- DINESH KUMAR SINGH JUDGE SJ
WP(C) NO. 10949 OF 2024 5 APPENDIX OF WP(C) 10949/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF GSTR-3B ONLINE RETURNS SUBMITTED FOR THE MONTH JULY 2017 TO MARCH 2018, UNDER THE GST ACT DURING THE YEAR 2017-18.
Exhibit P2 TRUE COPY OF GSTR-3B RETURN DATED 29.10.2018 SUBMITTED FOR SEPTEMBER 2018, WHEREIN THE INTERCHANGE WITH SGST/CGST AND IGST CLAIMED IN THE RETURN SUBMITTED FOR 2017-18 ADJUSTED WITH.
Exhibit P3 TRUE COPY OF GSTR-9 ANNUAL RETURN DATED 06.02.2020 SUBMITTED FOR THE PERIOD JULY 2017 TO MARCH 2018.
Exhibit P4 TRUE COPY OF SHOW CAUSE NOTICE DATED 19.07.2022 ISSUED BY 1ST RESPONDENT, FOR THE PERIOD JULY 2017 TO MARCH 2018, IN PROPOSING TO COMPLETE ASSESSMENT U/S.73(1) OF GST ACT, IN COMPARING EXT P1 RETURN WITH GSTR-2A INTRODUCED IN SEPTEMBER 2018.
Exhibit P5 TRUE COPY OF MECHANICAL ORDER DATED 21.11.2023 COMPLETED FOR 2017-18 BY 1ST RESPONDENT ALLEGING MISMATCH WITH TAX CLAIMED IN GSTR-9 AND GSTR-2A, WITHOUT PROVIDING DETAILS OF MISMATCH U/S.73(3) OF THE GST ACT.
Exhibit P6 TRUE COPY OF THE COPY OF THE PRESS RELEASE DATED 04.05.2018 ISSUED BY THE CBIC.
Exhibit P7 TRUE COPY OF THE PRESS RELEASE DATED 18.10.2018 ISSUED BY THE CBIC.
Exhibit P8 TRUE COPY OF THE CIRCULAR BEARING NO.123/42/2019-GST DATED 11.11.2019 ISSUED BY 2ND RESPONDENT.
Exhibit P9 TRUE COPY OF THE CIRCULAR BEARING NO.183/15/2022-GST DATED 27.12.2022 ISSUED BY 2ND RESPONDENT IN CLARIFYING TO DEAL WITH DIFFERENCE IN ITC AVAILED IN GSTR-3B COMPARING WITH GSTR-2A.
Exhibit P10 TRUE COPY OF JUDGMENT OF THE HON'BLE MADRAS HIGH COURT IN W.P(MD). 2127/2021 (M/S. D.Y. BEATHEL ENTERPRISES VERSUS THE STATE
TAX
OFFICER
(DATA
CELL), (INVESTIGATION WING) COMMERCIAL TAX BUILDINGS, TIRUNELVELI).
Exhibit P11 TRUE COPY OF INTERIM ORDER DATED
WP(C) NO. 10949 OF 2024 6 04.07.2022 IN WP(C) NO. 21545 OF 2022, PASSED BY THIS HON'BLE COURT IN SIMILAR SET OF FACT.
Exhibit P12 TRUE COPY OF JUDGMENT DATED 12.09.2023 IN WP(C) NO. 29769 OF 2023, PASSED BY THIS HON'BLE COURT IN SIMILAR SET OF FACT.