Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH THURSDAY, THE 21ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945 WP(C) NO. 42429 OF 2023 PETITIONER/S:
UNITY OOH MEDIA SOLUTIONS PVT. LTD;
AGED 57 YEARS UNITY OOH MEDIA SOLUTIONS PVT. LTD; 32/1175F, UNITY ENCLAVE, CIVIL LINE ROAD, PALARIVATTOM, COCHIN, REPRESENTED BY ITS MANAGING DIRECTOR, SRI. UMMER REFEEQUE., PIN - 682025 BY ADV TOMSON T.EMMANUEL RESPONDENT/S:
1 DEPUTY STATE TAX OFFICER (ADDL. CHARGE), DEPUTY STATE TAX OFFICER (ADDL. CHARGE), STATE GST DEPARTMENT, TAX PAYER SERVICES CIRCLE PALARIVATTOM AT ERNAKULAM, COCHIN, PIN - 682015 2 CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS , CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI-110023, REPRESENTED BY ITS UNDER SECRETARY.
3 STATE OF KERALA, STATE OF KERALA, REPRESENTED BY ITS SECRETARY,DEPARTMENT OF TAXES, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 4 COMMISSIONER OF STATE TAX, COMMISSIONER OF STATE TAX, STATE GOODS AND SERVICE TAX DEPARTMENT, 9TH FLOOR, TAX TOWER, KILLIPALAM, KARAMANA P O; THIRUVANANTHAPURAM, PIN - 695022 JASMINE M.M.-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 42429 OF 2023 2 JUDGMENT Dated this the 21st day of December,2023 The present writ petition has been filed impugning Ext.P2 assessment order. The petitioner, an assessee under the provisions of the GST / CGST Act, 2017 (the Act for short) had filed GSTR -1 and GSTR - 3B returns for the period July 2017 to March 2018 till the financial year 2017-2018 and had claimed input tax credit for the tax period on purchase of goods, effected from registered dealers, in accordance with law, through the GSTIN online portal. The petitioner was issued notices from the GSTIN portal. The petitioner could not file a reply to the notices issued. In the absence of reply to the show cause notices issued and personal hearing, the 1st respondent passed assessment order in Ext.P2, allowing certain amount of input tax credit as claimed in Ext.P1 return by the petitioner for the assessment year 2017-2018. The only reason for denying the input tax credit in Ext.P2 order is that though the petitioner had filed GSTR 1 and GSTR 3B within the enlarged time, since certain suppliers had not filed GSTR- 1 before the due date ie 30.04.2019, the entire ITC claim had been rejected under Section 16(4)of the Act.
2. Learned counsel for the petitioner submits that petitioner did not have the opportunity of representing this case before the 1st respondent in absence of the notices and initial difficulties in understanding in implementation of the GST, an all together new tax
WP(C) NO. 42429 OF 2023 3 regime. Many like the petitioner did not get access to the GST portal, as a result, the petitioner could not file reply and without hearing him the impugned order has been passed, whereby certain claim for input tax credit has been denied.
3.Learned counsel for the petitioner also placed reliance on judgment of this court in WP(C) No. 30660 of 2023 [M/s Henna Medicals Bus Stand Road vs State Tax Officer] in which relying on paragraph 8 of Diya Agencies v. The State Tax Officer dated 12.09.2023 in WP(C) No. 29769/203, the writ petition was allowed.
Paragraph 8 of Diya Agencies (supra) would be read as under:- “8. In view thereof, I find that the impugned Exhibit P-1 assessment order so far denial of the input tax credit to the petitioner is not sustainable, and the matter is remanded back to the Assessing Officer to give opportunity to the petitioner for his claim for input tax credit. If on examination of the evidence submitted by the petitioner, the assessing officer is satisfied that the claim is bonafide and genuine, the petitioner should be given input tax credit. Merely on the ground that in Form GSTR-2A the said tax is not reflected should not be a sufficient ground to deny the assessee the claim of the input tax credit. The assessing authority is therefore, directed to give an opportunity to the petitioner to give evidence in respect of his claim for input tax credit. The petitioner is directed to appear before the assessing authority within fifteen days with all evidence in his possession to prove his claim for higher claim of input tax credit. After examination of the evidence placed by the petitioner/assessee, the assessing authority will pass a fresh order in accordance with law.” 4. Considering the aforesaid fact, the matter is remitting back to the file of the assessing authority, 1st respondent to consider the issue afresh in the light of judgment in Diya Agencies (supra) and pass a fresh order after hearing the petitioner. The petitioner is directed to
WP(C) NO. 42429 OF 2023 4 appear before the Assessing officer on 05.01.2024, with all evidence and report denying the input tax credit, which is evident in Ext.P1 order.
For the aforesaid direction, the writ petition stands finally allowed and the impugned of Ext.P2 is here by set aside.
Sd/- DINESH KUMAR SINGH JUDGE SJ
WP(C) NO. 42429 OF 2023 5 APPENDIX OF WP(C) 42429/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF GSTR 3B MONTHLY ONLINE RETURNS SUBMITTED FOR THE MONTHS JULY 2017 TO MARCH 2018 Exhibit P2 TRUE COPY OF ONLINE PROCEEDINGS DATED 07.12.2023 ISSUED U/S.73(9) OF GST ACT, BY 1ST RESPONDENT, IN DISALLOWING CERTAIN AMOUNT OF INPUT TAX CREDIT MADE IN EXT-P1 RETURNS FOR 2017-18, STATING THE REASON, THAT 'SUPPLIERS HAVE NOT FILED GSTR-1 BEFORE THE DUE DATE, 30.04.2019' Exhibit P3 TRUE COPY OF THE PRESS RELEASE DATED 04.05.2018 ISSUED BY THE CBIC Exhibit P4 TRUE COPY OF THE PRESS RELEASE DATED 18.10.2018 ISSUED BY THE CBIC Exhibit P5 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 P6 TRUE COPY OF THE 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).
Exhibit P7 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 P8 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.