Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 7TH DAY OF MARCH 2024 / 17TH PHALGUNA, 1945 WP(C) NO. 8913 OF 2024 PETITIONER:
1 SANTHOSH PAUL MALIEKKAL AGED 52 YEARS PROPRIETOR SANTHOSH TRADERS XXV/1894, THANJAN LANE, JAI HIND MARKET, THRISSUR, PIN - 680001 BY ADVS.
R.JAIKRISHNA NARAYANI HARIKRISHNAN GANESAN M.
C.S.ARUN SHANKAR ANISH P.
RESPONDENTS:
1 UNION OF INDIA MINISTRY OF FINANCE, GOVERNMENT OF INDIA NORTH BLOCK, NEW DELHI P.O , NEW DELHI REPRESENTED BY ITS SECRETARY, PIN - 110001 2 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TAX DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM G.P.O., THIRUVANANTHAPURAM, PIN - 695001 3 STATE TAX OFFICER OFFICE OF STATE TAX OFFICER TAXPAYER SERVICES CIRCLE, THRISSUR CITY STATE GOODS AND SERVICES TAX DEPARTMENT FIRST FLOOR, SGST COMPLEX, POOTHOLE, THRISSUR, PIN - 680004 4 DEPUTY COMMISSIONER (ARREAR RECOVERY) TAX PAYER SERVICE CIRCLE, OFFICE OF JOINT COMMISSIONER STATE GOODS AND SERVICES TAX DEPARTMENT, POOTHOLE, THRISSUR, PIN – 680004 SMT. JASMINE M. M., GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C.)NO.8913 OF 2024 2 JUDGMENT Dated this the 07th day of March, 2024 The petitioner is a registered dealer under the Kerala State Goods and Services Tax Act, 2017 (hereinafter referred to as the ‘GST Act’). The petitioner is aggrieved by the fact that, for the assessment year 2017-18, the petitioner has been denied Input Tax Credit, on the ground that tax has not been discharged by the dealers from whom the petitioner has purchased the goods in question.
2. Though this writ petition is filed challenging the constitutional validity of Section 16(2)(c) of the GST Act, the learned counsel appearing for the petitioner would submit that the petitioner is presently in a position to show that he is entitled to the Input Tax Credit, as the dealers from whom the petitioner had purchased the goods have now discharged the liability towards GST. It is also pointed out that, the petitioner would be satisfied, if the matter is
W.P.(C.)NO.8913 OF 2024 3 remanded to the Assessing Authority for fresh consideration also taking into consideration the terms of Ext.P4 Circular.
3. Heard the learned Government Pleader also.
4. Having heard the learned Counsel appearing for the petitioner, learned Government Pleader and having regard to the limited nature of relief sought for by the petitioner and having regard to the terms of paragraph No.4 of Ext.P4 Circular, Ext.P1 order of assessment for the assessment year 2017-18 will stand set aside. The assessment of the petitioner for the year 2017-18 will stand restored to the files of the 3rd respondent. The 3rd respondent shall consider the claim of the petitioner for Input Tax Credit, also taking into consideration the terms of Ext.P4 Circular and in accordance with the law, within a period of two months from the date of receipt of a certified copy of this judgment. The petitioner shall appear before the 3rd respondent at 11.am. on 20.03.2024 along with a certified copy of this judgment and a copy of the writ
W.P.(C.)NO.8913 OF 2024 4 petition. The matter shall thereafter be considered by the 3rd respondent, as directed above.
The writ petition is disposed of as above.
Sd/- GOPINATH P.
JUDGE NB/7-3
W.P.(C.)NO.8913 OF 2024 5 APPENDIX OF WP(C) 8913/2024 PETITIONER’S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 14.08.2023 EXHIBIT P2 TRUE COPY OF THE SUMMARY ORDER IN FORM GST DRC- 07 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 14.08.2023 EXHIBIT P3 TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 4TH RESPONDENT ALONG WITH THE ENGLISH TRANSLATION OF THE SAME DATED 05.02.2024 EXHIBIT P4 TRUE COPY OF THE CIRCULAR NO: 183/15/2022-GST ISSUED BY THE GST POLICY WING OF THE 1ST RESPONDENT DATED 27.12.2022 EXHIBIT P5 TRUE COPY OF THE RELEVANT EXTRACT OF THE DISCHARGE SUMMARY ISSUED BY ASTER MEDICITY HOSPITAL FOR THE PERIOD 23.4.2023 TO 29.4.2023 DATED NIL EXHIBIT P6 TRUE COPY OF THE RELEVANT EXTRACT OF THE DISCHARGE SUMMARY ISSUED BY ASTER MEDICITY HOSPITAL FOR THE PERIOD 21.7.2023 TO 22.7.2023 DATED NIL EXHIBIT P7 TRUE COPY OF THE CERTIFICATE ISSUED BY DREAM PULSE COMMUNICATION DATED 15.2.2024 EXHIBIT P8 TRUE COPY OF THE CERTIFICATE ISSUED BY A P KAKKU ASSOCIATES DATED 24.2.2024 EXHIBIT P9 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN AND WP(C) 38964/2022 DATED 5.12.2022 EXHIBIT P10 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN AND WP(C) 19913/2023 DATED 20.6.2023 EXHIBIT P11 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN AND WP(C) 21921 OF 2023 DATED 10.7.2023 RESPONDENT EXHIBITS:
NIL TRUE COPY P.A. TO JUDGE