Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 12TH DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 WP(C) NO. 9715 OF 2024 PETITIONER(S):
M/S. AVG MOTORS PVT. LTD., AGED 71 YEARS 396, ANCHERIL BUILDING, BAKERY JUNCTION, KOTTAYAM, KERALA, REPRESENTED BY ITS DIRECTOR, SRI.A V GEORGE, PIN – 686001 BY ADV. TOMSON T.EMMANUEL RESPONDENT(S):
1 DEPUTY COMMISSIONER, STATE GST DEPARTMENT, TAX PAYER SERVICES DIVISION, CIVIL STATION, 2ND FLOOR, KOTTAYAM, PIN - 686002 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:
ADV. THUSHARA JAMES - SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:0
W.P.(C.)NO.9715 OF 2024 2 JUDGMENT Dated this the 12th day of March, 2024 The petitioner has approached this Court being aggrieved by the fact that he has been denied Input Tax Credit in the assessment of the Goods and Services Tax Act, for the year 2017-18.
2. The learned counsel appearing for the petitioner would submit that, the denial of Input Tax Credit was on account of mismatch between GSTR-2A and GSTR- 3B. It is submitted that GSTR-2A was introduced only in the month of September 2018 and therefore, the Input Tax Credit could not have been denied on account of such mismatch. It is also pointed out that, in terms of Section 73(3) of the Goods and Services Tax Act, 2017, the statement of mismatch should have been provided to the assessee and this has not been done. It is submitted that, if such a statement had been provided, the petitioner
W.P.(C.)NO.9715 OF 2024 3 would have been able to substantiate its claim for Input Tax Credit in terms of Circular No183/15/2022- ST dated 27.12.2022.
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, I am of the view that the claim of the petitioner can be directed to be reconsidered by the Assessing Authority also having regard to the provisions of the Circular dated 27.12.2022 referred to above. If the petitioner requests for a statement in terms of the provisions contained in Section 73(3) of the Goods and Services Tax Act, the same should also be provided to him.
Therefore, this writ petition is disposed of setting aside Ext.P6 order of assessment of the petitioner for the year 2017-18 and remitting the matter for a fresh consideration of the first respondent. The first respondent shall consider the claim of the petitioner
W.P.(C.)NO.9715 OF 2024 4 as directed above, also keeping in mind in terms of the Circular dated 27.12.2022 and after affording an opportunity of hearing to the petitioner. The petitioner shall appear before the first respondent at 11.00 a.m. on 20.03.2024 and thereafter, the matter shall be reconsidered as directed above. I make it clear that I have not expressed any opinion on the merits of the matter.
Sd/- GOPINATH P.
JUDGE NB/12-3
W.P.(C.)NO.9715 OF 2024 5 APPENDIX OF WP(C) 9715/2024 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF GSTR-1 AND GSTR-3B ONLINE RETURNS SUBMITTED FOR THE MONTHS JULY 2017 TO MARCH 2018.
EXHIBIT P2 TRUE COPY OF CASE PROCEEDING - SCRUTINY OF RETURNS DATED 19.11.2022 ISSUED TO PETITIONER, BY 1ST RESPONDENT IN ALLEGING TO HAVE AVAILED EXCESS ITC IN IGST & CESS FOR 2017-18 IN COMPARING WITH GSTR-2A.
EXHIBIT P3 TRUE COPY OF FORMAL REPLY DATED 02.12.2022 SUBMITTED AGAINST EXT P2, ALONG WITH PROOF OF VOLUNTARY PAYMENT OF IGST FOR 2017-18.
EXHIBIT P4 TRUE COPY OF SHOW CAUSE NOTICE DATED 30.09.2023 ISSUED BY 1ST RESPONDENT, FOR JULY 2017 TO MARCH 2018, IN PROPOSING TO COMPLETE ASSESSMENT U/S.73(1) OF GST ACT, IN COMPARING EXT P1 RETURNS WITH GSTR-2A INTRODUCED IN SEPTEMBER 2018.
EXHIBIT P5 TRUE COPY OF REPLY DATED 10.11.2023 SUBMITTED UNDER ONLINE ALONG WITH PROOF OF VOLUNTARY PAYMENTS OF TAX AND INTEREST UNDER IGST, SGST AND CGST WITH CERTIFICATE ISSUED BY AUDITOR, AGAINST EXT P4 SHOW CAUSE NOTICE.
EXHIBIT P6 TRUE COPY OF MECHANICAL ORDER DATED 29.12.2023 PASSED U/S.73 OF THE GST ACT, FOR 2017-18 PASSED BY 1ST RESPONDENT, WITHOUT PROPER CONSIDERATION OF EXT P3 AND EXT P5 REPLIES SUBMITTED BY THE PETITIONER.
EXHIBIT P7 TRUE COPY OF THE COPY OF THE PRESS RELEASE DATED 04.05.2018 ISSUED BY THE CBIC EXHIBIT P8 TRUE COPY OF THE PRESS RELEASE DATED 18.10.2018 ISSUED BY THE CBIC.
EXHIBIT P9 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 P10 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 P11 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).
W.P.(C.)NO.9715 OF 2024 6 EXHIBIT P12 TRUE COPY OF INTERIM ORDER DATED 04.07.2022 IN WP(C) NO. 21545 OF 2022, PASSED BY THIS HON'BLE COURT IN SIMILAR SET OF FACT.
EXHIBIT 13 TRUE COPY OF JUDGMENT DATED 01.11.2023 IN WP(C) NO. 36029 OF 2023, PASSED BY THIS HON'BLE COURT IN SIMILAR SET OF FACT.
RESPONDENTS’ EXHIBITS: NIL TRUE COPY P.A. TO JUDGE