Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM 12 ptPRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH FRIDAY, THE 19TH DAY OF JANUARY 2024 / 29TH POUSHA, 1945 WP(C) NO. 395 OF 2023 PETITIONER/S:
M/S. KERALA ELECTRICALS & ALLIED ENGINEERING CO.LTD., KEL ROAD, MULAVANA, KOLLAM -691501, REPRESENTED BY ITS SENIOR MANAGER (F&A), SUBRAMANIAN.R.R.
BY ADVS.
HARISANKAR V. MENON MEERA V.MENON R.SREEJITH K.KRISHNA RESPONDENT/S:
1 THE DEPUTY COMMISSIONER, SPECIAL CIRCLE, STATE GOODS & SERVICES TAX DEPARTMENT, TAX TOWERS, ASRAMAM, KOLLAM-691002.
2 THE COMMISSIONER OF COMMERCIAL TAXES, SGST DEPARTMENT, TAX TOWERS, KILLIPPALAM, KARAMANA, THIRUIVANANTHAPURAM, PIN - 695002 3 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 BY ADV PUBLIC PROSECUTOR OTHER PRESENT:
JASMINE M.M.-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C)No.395 of 2023 2 JUDGMENT Dated this the 19th day of January, 2024 Heard Ms. Parvathy Menon, a young and promising counsel of this Court for the petitioner and Ms.Jasmine M.M., learned, efficient Government Pleader for the respondents.
2.
The petitioner has filed this writ petition impugning the Ext.P6 order issued by the 1st respondent whereby petitioner’s claim for input tax credit for an amount of Rs.40,18,744/- has been denied and on short payment of the tax, interest has been levied along with penalty. Total demand as per the impugned Ext.P6 order is Rs.64,02,467/-.
3.
The learned counsel for the petitioner submits that the petitioner is a registered dealer under the provisions of CGST/KSGST Act. The petitioner is a Government undertaking. The petitioner is engaged in the manufacture and sale of various electric equipments. The Government of Kerala awarded the
WP(C)No.395 of 2023 3 contract to the petitioner for supplying and erection of street lights with high masts for various Panchayats and other local bodies.
4.
It is the case of the petitioner that instead of executing the work directly, the petitioner had entrusted the work to sub-contractors, and the petitioner had paid GST on the amount remitted to the sub-contractors. It is submitted that the petitioner is therefore, entitled to claim input tax credit of the tax paid by the petitioner to sub-contractors on the amount of work executed by sub-contractors. It is submitted that by denial of the input tax credit, the assessing authority has committed a manifest error of law and therefore, the petitioner has filed this writ petition instead approaching the First Appellate Authority against the order impugned under Section 107 of the CGST/SGST Act.
5.
The respondents have filed their counter affidavit. It has been submitted that the petitioner had
WP(C)No.395 of 2023 4 submitted documents in pursuance to the summons issued under Section 70 of the Act, regarding the inward supplies and same were examined. From the record made available to the assessing authority, it is evident that the supply effected by the two sub- contractors are nothing but the services received by various Panchayats and other local bodies in their capacity as end customers and therefore, the said supplies/services are not input supply of goods and services for further supply to be made by the petitioner.
Therefore, the petitioner’s claim for input tax credit has been rejected/denied.
6.
Whether the assessing authority’s view is correct or in accordance with law can be examined by the Appellate Authority. When there is a remedy of such statutory appeal provided under Section 107 of the CGST/SGST Act, this Court would not like to interfere with the assessment order. Thus, this writ petition is disposed of with liberty to the petitioner to file appeal
WP(C)No.395 of 2023 5 against the said assessment order in Ext.P6. The limitation for filing the appeal is extended up to 31.01.2024 and therefore, the petitioner must approach the Appellate Authority before 31.01.2024, in accordance with law.
With the afore said observation, this writ petition stands finally disposed of.
Sd/- DINESH KUMAR SINGH JUDGE AP
WP(C)No.395 of 2023 6 APPENDIX OF WP(C) 395/2023 PETITIONER EXHIBITS Exhibit P1 COPYOF INTIMATION IN FORM GST DRC-01A ISSUED BY 1ST RESPONDENT DTD. 06-07-2022 Exhibit P2 COPY OF REPLY FILED BY THE PETITIONER DTD. 18-07-2022 Exhibit P3 COPY OF SUMMONS ISSUED BY THE 1ST RESPONDENT DTD. 22-07-2022 Exhibit P4 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT DTD. 30-11-2022 Exhibit P5 COPY OF REPLY FILED BY THE PETITIONER DTD. 06-12-2022 Exhibit P6 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT DTD. 19-12-2022