Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH TUESDAY, THE 27TH DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 WP(C) NO. 3527 OF 2024 PETITIONER:
M/S. AVIATION AERO SERVICES PVT. LTD., 34/1414B, DEEPA, CHUTTUPADUKARA, EDAPPALLY P. O., ERNAKULAM DISTRICT, REPRESENTED BY PRASANNAKUMAR P., ZONAL HEAD, PIN – 682024.
BY ADVS.
SRI. HARISANKAR V. MENON SMT. MEERA V. MENON SRI. R. SREEJITH SMT. K. KRISHNA SMT. PARVATHY MENON RESPONDENTS:
1 THE ASSISTANT STATE TAX OFFICER, TAX PAYER SERVICES CIRCLE, STATE GOODS & SERVICES TAX DEPARTMENT, KALOOR AT ERNAKULAM, NORTH DIVISION, PERUMANOOR P. O., THEVARA, KOCHI, PIN – 682015.
2 THE SUPERINTENDENT, CENTRAL TAX & CENTRAL EXCISE, ERNAKULAM RANGE-1, ERNAKULAM DIVISION, C. R. BUILDING, I. S. PRESS ROAD, KOCHI, PIN – 682018.
3 THE COMMISSIONER OF STATE TAX, STATE GST DEPARTMENT, TAX TOWERS, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM, PIN – 695002.
BY ADV.
SRI. SREEJITH P. R. - SC - GSTN SRI. JASMINE M. M. - GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 3527 OF 2024 2 DINESH KUMAR SINGH, J.
-------------------------- W.P.(C) No. 3527 of 2024 ------------------------- Dated this the 27th day of February, 2024 JUDGMENT 1.
The present writ petition has been filed impugning Exhibit P-3 Order passed under Section 79(3) and 73(1) read with Rule 100(1), 100(2), 100(3) and 142 (5) of KGST/CGST Act, 2017. The petitioner’s claim for transitional credit in TRAN -1 and TRAN – 2 has been denied in the impugned order and the tax to that extent, penalty and interest has been levied.
2.
The stand of the petitioner that the petitioner has filed the application claiming the transitional credit to an extent of Rs.
1,40,559/- . This was availed by the petitioner in the return filed under the GST statute for the financial year 2017-18.
3.
The Show Cause Notice came to be issued on 23.09.2023 under Section 73(1) of the KGST/CGST Act, 2017 proposing to disallow the transitional credit and demand the tax, interest and penalty. The petitioner on receipt of the above submitted reply on 13.11.2023. According to the petitioner, he had produced the relevant documents in support his claim for transitional credit. In the Statement, the stand on behalf of the 1st respondent is that the
WP(C) NO. 3527 OF 2024 3 petitioner has been denied the transitional credit as the petitioner could not produce the supporting documents such as stock details and, the invoices produced by the petitioner are not in agreement with the actual claim. The petitioner also failed to prove that those invoices were received within a period of twelve months immediately preceding the appointed day of 1st July, 2017. It is also stated in the Statement that; in order to claim TRAN – 2 credit, the benefit of such credit is to be passed on to the recipient by way of reduced prices. On verification of the documents produced by the petitioner, it appears that the petitioner has not passed on the benefit of credit to the recipients. Further, the petitioner failed to prove with substantiating documents that they had paid GST on such goods and credit has been taken only on reduced rate.
4.
Learned Counsel for the petitioner submits that the petitioner was never put to notice to produce these documents. Otherwise he had all the documents in support of its claim for transitional credit.
5.
It was the initial year of ruling out of the GST and the petitioner might not be aware of the documents which were required to have been produced in support of its claim for transitional credit. In view thereof, I am of the opinion that the petitioner should be afforded one more opportunity to produce all
WP(C) NO. 3527 OF 2024 4 the documents before the Assessing Officer in support of his claim regarding transitional credit.
6.
Thus, the present writ petition is allowed. The impugned order is set aside. The petitioner is directed to appear before the 1st respondent on 05.03.2024 with all the relevant documents in support of his claim for transitional credit. If the petitioner fails to appear on 05.03.2024 and is unable to substantiate his claim by documentary evidence, the Assessing Officer would be free to pass the order. It is also made clear that no further opportunity shall be afforded to the petitioner for appearance before the Assessing Officer to produce the documents and make submissions for claiming transitional credit. If the petitioner fails to appear before the Assessing Officer on 05.03.2024 as directed by this Court, the Assessing Officer should pass fresh order expeditiously in accordance with the law.
Sd/- DINESH KUMAR SINGH JUDGE Svn
WP(C) NO. 3527 OF 2024 5 APPENDIX OF WP(C) 3527/2024 PETITIONER’S EXHIBITS EXHIBIT P1 COPY OF SHOW CAUSE NOTICE ISSUED BY THE 1ST RESPONDENT DTD. 23-09-2023 EXHIBIT P2 COPY OF REPLY FILED BY THE PETITIONER DTD.
13-11-2023 EXHIBIT P3 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2017-18 DTD. 18-12-2023 EXHIBIT P4 COPY OF CIRCULAR NO. 10/17 ISSUED BY THE 3RD RESPONDENT DTD. 22-06-2017 EXHIBIT P5 COPY OF INVOICE NO. 0119/17-18 FROM CALICUT DIESELS PVT. LTD., THRISSUR DTD.29-06-2017 EXHIBIT P5 (A) COPY OF INVOICE NO. 0122/17-18 FROM CALICUT DIESELS PVT. LTD., THRISSUR DTD.
30-06-2017 EXHIBIT P5 (B) COPY OF INVOICE NO. 0123/17-18 FROM CALICUT DIESELS PVT. LTD., THRISSUR DTD.
30-06-2017 EXHIBIT P5 (C) COPY OF INVOICE NO. 0063/17-18 FROM CALICUT DIESELS PVT. LTD., THRISSUR DTD.
25-05-2017 EXHIBIT P5 (D) COPY OF INVOICE NO. 50 FROM IMPERIAL SILICONS & TAPES COCHIN-28 DTD. 31-05-2017 EXHIBIT P5 (E) COPY OF INVOICE NO. 59 FROM IMPERIAL SILICONS & TAPES COCHIN-28 DTD. 12-06-2017 EXHIBIT P5 (F) COPY OF INVOICE NO. 68 FROM IMPERIAL SILICONS & TAPES COCHIN-28 DTD. 20-06-2017 EXHIBIT P5 (G) COPY OF INVOICE NO. KE-8/61/17-18 FROM KAVANAL ENTERPRISES , KOCHI-17 DTD. 01-06- 2017
WP(C) NO. 3527 OF 2024 6 EXHIBIT P5 (H) COPY OF INVOICE NO. KE-8/74/17-18 FROM KAVANAL ENTERPRISES , KOCHI-17 DTD. 13-06- 2017 EXHIBIT P5 (I) COPY OF INVOICE NO. 11185 FROM SENTHIL MURUGAN ELECTRICALS, COIMBATORE DTD. 06- 06-2017 EXHIBIT P5 (J) COPY OF INVOICE NO. 11203 FROM SENTHIL MURUGAN ELECTRICALS, COIMBATORE DTD. 21- 06-2017