Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 29TH DAY OF JANUARY 2024 / 9TH MAGHA, 1945 WP(C) NO. 17809 OF 2023 PETITIONER:
SHIJU GEORGE, AGED 51 YEARS S/O A.V.GEORGE, PROPRIETOR, ATHANICKAL AGRO AGENCIES, VII/253C, IX/168, TRIVENI ROAD, EDACKATTUVAYAL, ERNAKULAM, PIN 682313 RESIDING AT ATHANICKAL HOUSE, KARICODE, MULANTHURUTHY, PIN – 682314 BY ADVS.
LAL K.JOSEPH SURESH SUKUMAR ANZIL SALIM T.A.LUXY P.MURALEEDHARAN (THURAVOOR) RESPONDENTS:
1 THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001 2 THE COMMISSIONER OF STATE TAX SGST DEPARTMENT, SGST DEPARTMENT TAX COMPLEX, KARAMANA, THIRUVANANTHAPURAM-695002., PIN – 695002 3 THE GOVERNMENT OF INDIA, REPRESENTED BY SECRETARY MINISTRY OF FINANCE, DEPARTMENT OF REVENUE , CENTRAL BOARD OF INDIRECT TAX AND CUSTOMS ,GST POLICY WING, NEW DELHI - 110 001., PIN – 110001 4 THE STATE TAX OFFICER, TAX PAYER SERVICE CIRCLE, SGST DEPARTMENT, MINI CIVIL STATION, THRIPUNITHURA, PIN - 682301., PIN - 682301 BY ADV.
JASMINE M.M., GOVERNMENT PLEADER
WP(C) NO. 17809 OF 2023 -2- THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 17809 OF 2023 -3- JUDGMENT Petitioner is a registered dealer under the provisions of Kerala State Goods and Service Tax Act, 2017. The petitioner filed returns for the period of July, 2017 to March, 2018. The returns were verified by respondent No.4. Petitioner’s claim for input tax credit amounting to Rs.6,00,964/- (Rupees Six lakh nine hundred and sixty four only) was disallowed on the ground that the said amount of tax was not reflected in Form No.GSTR-2A.
2.
Learned counsel for the petitioner submits that it was initial period of implementation of GST regime, and the amount paid by the petitioner as tax for taking inward supplies was not reflected in GSTR- 2A because of several technical issues. The Central Board of Indirect Taxes and Customs took note of the difficulties faced by the dealers in claiming the input tax credit, and is provide relief to the dealers in such
WP(C) NO. 17809 OF 2023 -4- cases, the CBIC came out with circular dated 27.12.2022. The said circular has been placed on record vide Ext.P3 of the writ petition.
3.
Paragraph 4.1.1 of the said circular reads as under:
“4.1.1 In case, where difference between the ITC claimed in FORM GSTR-3B and that available in FORM GSTR 2A of the registered person in respect of a supplier for the said financial year exceeds Rs 5 lakh, the proper officer shall ask the registered person to produce a certificate for the concerned supplier from the Chartered Accountant (CA) or the Cost Accountant (CMA), certifying that supplies in respect of the said invoices of supplier have actually been made by the supplier to the said registered person and the tax on such supplies has been paid by the said supplier in his return in FORM GSTR 3B.
Certificate issued by CA or CMA shall contain UDIN. UDIN of the certificate issued by CAs can be
verified
from
ICAI
website https://udin.icai.org/search-udin and that issued by CMAs can be verified from ICMAI website https://eicmai.in/udin/VerifyUDIN.aspx” 4.
The petitioner has obtained the certificate
WP(C) NO. 17809 OF 2023 -5- from the supplier i.e., Mangalore Chemicals and Fertilizers Limited regarding the inward supplies received by the petitioner and the tax paid by him to the said supplier. The petitioner has also obtained the certificate from the Chartered Accountant of Mangalore Chemicals and Fertilizers Limited, the same is placed on record as Ext.P5. Learned counsel for the petitioner submits that the petitioner is being denied the benefit of the circular dated 27.12.2022 in Ext.P3 only on the ground that the petitioner’s case got concluded before the date of issuance of the said circular. Learned counsel for the petitioner submits that the petitioner should not be punished for being the tax complainant and filing its returns on time. The dealers who did not file their returns or their assessment orders were not finalised on the date of issuance of the circular are being given the benefit of the circular, however, the petitioner is denied the same benefit. He, therefore, submits that the impugned
WP(C) NO. 17809 OF 2023 -6- order in Ext.P2 may be set aside and the matter be remanded back to the assessing authority to apply the circular and pass a fresh order.
5.
On the other hand Adv.Jasmine M.M., learned Government Pleader submits that the petitioner has remedy of filing appeal against the impugned order Ext.P2. The time for filing the appeal has been extended upto 31.01.2024, and if the petitioner files the appeal, the appellate authority will apply the circular, and if the petitioner is entitled to the claim of the input tax credit denied to him, he may be given the said benefit of the credit.
Considering the said submissions, the petitioner is permitted to file appeal against the impugned order dated 23.02.2022 in Ext.P2 by 31.01.2024. If the petitioner files the appeal, under Section 107 of CGST/ SGST Act, 2017, the petitioner’s appeal shall be decided after taking note of the circular dated 27.12.2022 in Ext.P3. If the petitioner files the appeal
WP(C) NO. 17809 OF 2023 -7- on or before 31.01.2024, till the disposal of the appeal by the appellate authority no coercive measures to be taken against the petitioner for realization of the amount as per the Ext.P2 order.
The writ petition stands disposed off.
Sd/- DINESH KUMAR SINGH JUDGE VV
WP(C) NO. 17809 OF 2023 -8- APPENDIX OF WP(C) 17809/2023 PETITIONER EXHIBITS EXHIBIT- P1 TRUE COPY OF THE NOTICE DATED 21/12/2021 UNDER S.73 OF THE KGST ACT FOR THE YEAR 2017-2018 EXHIBIT P2 TRUE COPY OF THE PROCEEDING DATED 23/02/2022 UNDER S.73(9) R/W RULE 142 OF THE CGST/KSGST ACT 2017 AND CGST/SGST RULES, 2017 EXHIBIT-P3 TRUE COPY OF THE CIRCULAR NO 183/15/2022 DATED 27-12-2022 ISSUED BY THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE EXHIBIT-P4 COPY OF THE CERTIFICATE CONFIRMING THE ISSUANCE /UPLOADING OF TAX INVOICES FOR THE TAXABLE SUPPLIES TO PETITIONERS EXHIBIT-P5 CERTIFICATES DATED 5/4/2023 ISSUED BY THE CHARTERED ACCOUNTANTS DRAK & ASSOCIATES