Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH TUESDAY, THE 17TH DAY OF OCTOBER 2023 / 25TH ASWINA, 1945 WP(C) NO. 34308 OF 2023 PETITIONER:
CHATTANCHAL SUPER MARKET, HAVING THEIR REGISTERED OFFICE AT IV-95,96 234 B, CHATTANCHAL P. O., THEKKIL, KASARAGOD, KERALA, PIN – 671541, REPRESENTED BY ITS MANAGING PARTNER MOHAMMED KUNHI ABDUL NISAR.
BY ADVS.
SRI. ATHUL M. V.
SRI. AKHIL SURESH RESPONDENTS:
1 UNION OF INDIA, REPRESENTED BY REVENUE SECRETARY, NORTH BLOCK, NEW DELHI, PIN – 110001.
2 CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NEW DELHI, PIN – 110001.
3 STATE OF KERALA, REPRESENTED BY SECRETARY, TAXES DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.
4 JOINT COMMISSIONER OF STATE TAX APPEALS, STATE GOODS AND SERVICES TAX DEPARTMENT, KOZHIKODE, PIN – 673006.
5 STATE TAX OFFICER, TAX PAYER CIRCLE, MANJEWASAR, KASARAGOD, PIN – 671323.
BY ADV.
SMT. RESHMITA RAMACHANDRAN – GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 34308 OF 2023 2 DINESH KUMAR SINGH, J.
-------------------------- W.P.(C) No.34308 of 2023 ------------------------- Dated this the 17th day of October, 2023 JUDGMENT 1.
The present writ petition has been filed impugning the order in Exhibit P-5 passed by the 4th respondent dismissing appeal filed by the petitioner against the order passed in Exhibit P-4 disallowing the claim of the petitioner to the input tax credit. The appeal has been dismissed on the ground of delay as the appellate authority does not have any jurisdiction to condone the delay under Section 107 of the GST Act, 2017.
2.
The order passed by the assessing authority is dated 04.07.2022. The appeal was filed only on 25.05.2023. The said order was uploaded on GST portal and therefore the present petitioner had notice of the impugned order on the said date.
3.
If the statute does not confer the power on an appellate authority under the statute to condone the delay in filing the appeal, this Court in exercise of the writ jurisdiction can not extend the limitation prescribed for filing an appeal under Section 107 (5)
WP(C) NO. 34308 OF 2023 3 of the GST Act.
4.
When the assessing authority noticed that there was excess payment of ITC to the tune of Rs. 58,978/- (Rupees Fifty eight thousand nine hundred and seventy eight only) under CGST and SGST, and Rs.58/- (Rupees fifty eight only) ,the petitioner was issued notice. The petitioner did not give any reply to the said notice nor he filed reply to the notice in Form GST DRC-01A, and, thereafter, in Form GST DRC 01 was issued. The assessing authority, while concluding the proceedings in respect of the excess claim of the petitioner has noticed as under;
“Conclusion 1.
ITC can be availed by a normal tax payer as a recipient of goods or services or both on which tax is paid only if all the conditions prescribed under sub-Section 2 of Section 16 of the Act as mentioned above are fulfilled. Here in this case the supplier(s) of the taxpayer has not paid the tax charged to the tune of Rs.58978/- under CGST and SGST each and Rs.58/- under IGST and hence the condition prescribed under clause (c) to sub-section 2 of Section 16 of the Act is not satisfied. As such, the ITC availed by the taxpayer for the F.Y. 2017-18 to the tune of Rs.58978/- under CGST and SGST each
WP(C) NO. 34308 OF 2023 4 and Rs.58/- under IGST are ineligible.
Contravention of legal provisions and demand of interest and penalty In the circumstances stated above, it is clear that the taxpayer had contravened the following provisions of the Acts and Rules;
As per the sub-Section 2 to Section 16 of the Acts, the registered person, being registered as a normal taxpayer, can avail ITC on his inward supply of goods or services or both only by complying with all the provisions laid down in the Acts and the Rules. Here, the taxpayer being a registered person availed ITC to the tune Rs.58978/- under CGST under Clause (c) of sub-Section 2 of Section 16 of the Acts.
As per Section 155 of the Act, the burden to prove the eligibility of ITC lies upon the registered person who availed ITC. Here the noticee shall prove his eligibility of ITC to the tune of Rs.58978/- under CGST and SGST each and Rs.58/- under IGST.
The matter has already been intimated to the tax payer through FORM GST ASMT-10, FORM GST DRC-01A and there after in Form GST DRC 01. In all the cases no response from the taxpayer to prove his claim.”
WP(C) NO. 34308 OF 2023 5 5.
From the perusal of Exhibit P-1 order, it is evident that the assessing authority after noticing the difference between GSTR 3B and GSTR 2A put the petitioner on notice to discharge the burden under Section 155 of the Act regarding the petitioner's liability of ITC. However, the petitioner did not respond to the said notice.
When the petitioner himself did not bring into notice of the assessing authority, the relevant material documents and evidence in support of his claim for ITC, the assessing authority has no option but to proceed with on the basis of the GSTR 3B and GSTR 2A. I, therefore, find no error committed by the assessing authority or the appellate authority. The petitioner’s appeal was admittedly barred by limitation and there is no provision for condoning the delay in filing the appeal, the appellate authority has no option but to dismiss the appeal on the ground of delay.
6.
In the above circumstances, I find no error of jurisdiction of law committed by the two authorities in passing the impugned orders. Hence, the writ petition is devoid of any merits and the same is hereby dismissed.
Sd/-
DINESH KUMAR SINGH JUDGE Svn
WP(C) NO. 34308 OF 2023 6 APPENDIX OF WP(C) 34308/2023 PETITIONER’S EXHIBITS EXHIBIT P1 A TRUE COPY OF THE FORM GST ASMT-10 DATED 30.6.2020 EXHIBIT P2 A TRUE COPY OF THE REPLY DATED 08.01.2021 EXHIBIT P3 A TRUE COPY OF THE ORDER WITH REFERENCE NO.
32AAIFC2162PIZD/SCN/2017-18 DATED 04.07.2022 EXHIBIT P4 A TRUE COPY OF THE GROUNDS OF APPEAL DATED 20.05.2023 EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 08.09.2023 BY THE 4TH RESPONDENT EXHIBIT P6 A TRUE COPY OF THE NOTIFICATION NO. 49/2019 - CENTRAL TAX DATED 09.10.2019 EXHIBIT P7 A TRUE COPY OF THE NOTIFICATION NO. 75/2019 - CENTRAL TAX DATED 26.12.2019 EXHIBIT P8 A TRUE COPY OF THE JUDGMENT DATED 12.09.2023 IN WP.(C) NO. 29769 OF 2023