Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH FRIDAY, THE 22ND DAY OF MARCH 2024 / 2ND CHAITHRA, 1946 WP(C) NO. 10560 OF 2024 PETITIONER:
M/S. P C THOMAS & COMPANY, PUTHUSSERY HOUSE, MAMANGALAM, PALARIVATTOM P. O., ERNAKULAM, REPRESENTED BY ITS PARTNER, SRI. PAUL THOMAS, PIN – 682025.
BY ADV.
SRI. TOMSON T. EMMANUEL RESPONDENTS:
1 SUPERINTENDENT, CENTRAL TAX & CENTRAL EXCISE, ERNAKULAM RANGE-4, 4TH FLOOR, CENTRAL EXCISE BHAVAN, KATHRIKADAVU, COCHIN, PIN – 682017.
2 CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI, REPRESENTED BY ITS UNDER SECRETARY, PIN – 110023.
BY ADV.
SRI. RAJESH K. RAJU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 10560 OF 2024 2 DINESH KUMAR SINGH, J.
-------------------------- W.P.(C) No. 10560 of 2024 ------------------------- Dated this the 22nd day of March, 2024 JUDGMENT 1.
Heard Mr. Tomson T. Emmanuel, learned Counsel for the petitioner and Mr. Rajesh K. Raju, learned Standing Counsel for the respondents. The petitioner is a registered dealer under the provisions of the CGST/KGST Act, 2017.
2.
The petitioner is a partnership firm and is engaged in providing works contract with Central Public Works Department and other Government Departments. The petitioner filed GSTR – 1 and GSTR – 3B returns for the financial year 2017-18 to 2020-21 in GSTIN online portal. The petitioner claimed input tax credit on the basis of the tax invoices issued by the suppliers in respect of the aforesaid financial years.
3.
The petitioner was issued show cause notice dated 18.09.2023 for the years 2017-18 to 2019-20 on the ground that the petitioner has availed excess ITC while comparing with GSTR – 2A for the year 2017-18 and 2019-20.
4.
The petitioner filed reply to the said show cause notice.
However, according to the learned Counsel for the petitioner, the
WP(C) NO. 10560 OF 2024 3 impugned order would show that no consideration has been given to the reply submitted by the petitioner to the show cause notice and the impugned order has been passed.
5.
Admittedly, the impugned order passed by the 1st respondent is appealable under Section 107 of the CGST/KGST Act, 2017. Sub- Section (11) of Section 107 of the Act provides wide power to the appellate authority to make further enquiries and consider further pleas while deciding the appeal. An assessee may take before the appellate authority while deciding the appeal. In view thereof I find no ground to entertain this writ petition and the same is dispose of with liberty to the petitioner to file appeal against the impugned order under Section 107 of the Act within a period fifteen days from today and, if the petitioner files such an appeal within fifteen days from today, the appellate authority shall consider the appeal on merit and will pass decent and speaking order expeditiously, preferably within period of two months.
DINESH KUMAR SINGH JUDGE Svn
WP(C) NO. 10560 OF 2024 4 APPENDIX OF WP(C) 10560/2024 PETITIONER’S EXHIBITS EXHIBIT P1 TRUE COPY OF GSTR 1 AND GSTR-3B MONTHLY ONLINE RETURNS SUBMITTED FOR THE MONTHS JULY 2017 TO MARCH 2020 EXHIBIT P2 TRUE COPY OF ONLINE SHOW CAUSE NOTICE DATED 18.09.2023 ISSUED FOR THE YEARS 2017-18 TO 2019-20 ALLEGING TO HAVE AVAILED EXCESS ITC IN COMPARING WITH GSTR-2A FOR 2017-18 AND 2018-19 EXHIBIT P3 TRUE COPY OF REPLY DATED 13.10.2023 SUBMITTED BEFORE 1ST RESPONDENT AGAINST EXT P2 SHOW CAUSE NOTICE ISSUED FOR 2017-18 TO 2019-20, GENERATED WITH REPLY TO SHOW CAUSE NOTICE DATED 17.10.2023 EXHIBIT P4 TRUE COPY OF ONLINE ORDER DATED 30.11.2023 ALONG WITH DRC-07 DATED 08.12.2023, AS AMENDED BY CORRIGENDUM DATED 07.02.2024, PASSED BY 1ST RESPONDENT FOR 2017-18 EXHIBIT P5 TRUE COPY OF THE PRESS RELEASE DATED 04.05.2018 ISSUED BY THE CBIC EXHIBIT P6 TRUE COPY OF THE PRESS RELEASE DATED 18.10.2018 ISSUED BY THE CBIC EXHIBIT P7 TRUE COPY OF THE CIRCULAR BEARING NO.123/42/2019-GST DATED 11.11.2019 ISSUED BY THE MINISTRY OF FINANCE, GOVERNMENT OF INDIA EXHIBIT P8 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 P9 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 P10 TRUE COPY OF INTERIM ORDER DATED 04.07.2022
WP(C) NO. 10560 OF 2024 5 IN WP(C) NO. 21545 OF 2022, PASSED BY THIS HON'BLE COURT IN SIMILAR SET OF FACT EXHIBIT P11 TRUE COPY OF JUDGMENT DATED 07.03.2024 IN WP(C) NO. 9312 OF 2024, PASSED BY THIS HON'BLE COURT ON SQUARELY APPLICABLE CIRCUMSTANCE