Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 18TH DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945 WP(C) NO. 29918 OF 2023 PETITIONER:
UNIVERSAL TRADING COMPANY UNIVERSAL PRINTERS, THOMBAKADAV JUNCTION, CHOWARA POST, ALUVA, ERNAKULAM DISTRICT, PIN 683 571 REPRESENTED BY ITS SOLE PROPRIETOR, VELUTHEDATHAKATHOOT MUHAMMED SHAMSUDEEN, AGED 52, S/O.MUHAMMED, RESIDING AT 1/496A1, THOMBAKADAV JUNCTION, S.S. BUILDING, CHOWARA POST, ALUVA, ERNAKULAM DISTRICT,, PIN – 683 571.
BY ADV P.M.POULOSE RESPONDENTS:
1 THE STATE TAX OFFICER ALUVA CIRCLE, SGST DEPARTMENT, KAP COMMERCIAL COMPLEX, PUMP JUNCTION, RAILWAY STATION ROAD, ALUVA, PIN – 683 101.
2 DEPUTY COMMISSIONER OF STATE TAX ARREAR RECOVERY, STATE GOODS & SERVICE TAX DEPARTMENT, MINI CIVIL STATION, ALUVA, ERNAKULAM DISTRICT, PIN – 683 101.
3 COMMISSIONER OF STATE GOODS & SERVICE TAX DEPARTMENT TAX TOWER, 9TH FLOOR, KILLIPPALAM, KARAMANA.P.O., THIRUVANANTHAPURAM,, PIN – 695 002.
4 STATE OF KERALA REPRESENTED BY ADDITIONAL CHIEF SECRETARY (TAXES), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001.
5 UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI,, PIN – 110 001.
WP(C) NO. 29918 OF 2023 2 6 CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS REPRESENTED BY ITS CHAIRMAN, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI, PIN – 110 001.
OTHER PRESENT:
RESHMITA RAMACHANDRAN-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 29918 OF 2023 3 DINESH KUMAR SINGH, J.
-------------------------------------------- WP(C) NO. 29918 of 2023 -------------------------------------------- Dated this the 18th day of September, 2023 J U D G M E N T 1.
The present Writ Petition has been filed by the petitioner, who is a registered dealer by the provisions of Central GST and State GST Acts, 2017.
2.
The petitioner had filed returns under the GST Act pertaining to the year 2017-2018. The assessing authority noticed that the petitioner had availed excess Input Tax Credit in respect of the supplies taken by him from the supplier dealers.
There was a difference between GSTR 1 and GSTR 3B as well as GSTR 2A. While comparing GSTR 2A and GSTR 3B, the assessing officer noticed that the petitioner had availed excess Input Tax Credit in extent of Rs.1,18,472/- (Rupees One Lakh Eighteen Thousand Four Hundred and Seventy Two only).
WP(C) NO. 29918 OF 2023 4 The petitioner was issued Ext.P3 Show Cause Notice. The petitioner was intimated that under section 155 of the GST Act, 2017, burden lies on the petitioner to prove the genuineness of input tax claim through ASMT 10. It was stated that the petitioner had not provided any evidence for his eligibility for availing the Input Tax Credit in respect of inward supplies nor he has produced GSTR-1 of the supplier dealers satisfying the payment under Section 16 (2) (c) of the CGST/ SGST Acts, 2017.
3.
Despite the said Show Cause Notice issued to the petitioner, the petitioner failed to provide necessary evidence for inward supplies and payment of the Tax to the supplier dealers.
Therefore, the assessing authority, by Ext.P4 impugned order dated 30.11.2022, disallowed the excess payment of the Input Tax Credit claimed by the petitioner of Rs.1,19,336/- and imposed with
WP(C) NO. 29918 OF 2023 5 interest and penalty, and a demand of Rs.2,38,472/- (Rupees Two Lakhs Thirty Eight Thousand Four Hundred and Seventy Two only) has been issued. The petitioner has not availed the statutory remedy till now and has filed this writ petition.
4.
When the petitioner had failed to prove by leading the evidence of his claim for Input Tax Credit, this Court could not examine the evidence here, since the petitioner failed to provide the same to the assessing authority. It is true that the claim of Input Tax Credit of the assessee cannot be denied on the ground of difference between GSTR 3B and GSTR 2A, if the dealer proves the genuineness of transactions by leading credible and congent evidence/documents to the satisfaction of the assessing authority.
5.
In the present case, despite the show cause notice, the petitioner had failed to
WP(C) NO. 29918 OF 2023 6 substantiate his claim for excess Input Tax Credit by providing cogent and credible evidence before the assessing authority.
6.
This Court is not an Appeal Court, but it is exercising the powers under Article 226 of the Constitution of India. It may enquire and examine whether there has been any violation of principles of natural justice for the petitioner.
7.
Considering the facts and circumstances, this Court does not find that there has been any violation of the principles of natural justice or the petitioner has not given sufficient opportunity to substantiate his claim for excess Input Tax Credit.
8.
In view there of, I find no reason to interfere this writ petition. Therefore, this Writ Petition is hereby dismissed.
Sd/- DINESH KUMAR SINGH JUDGE rpr
WP(C) NO. 29918 OF 2023 7 APPENDIX OF WP(C) 29918/2023 PETITIONER’S EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE IN FORM GST ASMT-10 NO. 32AWQPSO649RIZN 10/17-18 DATED 17.8.2020 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
Exhibit P2 TRUE COPY OF THE PETITIONER'S REPLY DATED 6.11.2020 SENT TO 1ST RESPONDENT.
Exhibit P3 TRUE COPY OF THE SHOW CAUSE NOTICE UNDER SECTION 73(1) OF KGST/CGST ACT 2017 BEARING REFERENCE NO.32AWQPS0649RIZN, DRC-01/2017-18 DATED 22.10.2022 ISSUED BY 1ST RESPONDENT TO THE PETITIONER.
Exhibit P4 TRUE COPY OF THE ASSESSMENT ORDER NO.32AWQPSO649RIZN/2017-18 DATED 30.11.2022 PASSED BY THE 1ST RESPONDENT.
Exhibit P5 TRUE COPY OF THE ORDER DATED 30.11.2022 IN FORM GST DRC-07 ISSUED BY 1ST RESPONDENT.
Exhibit P6 TRUE COPY OF THE NOTICE NO.32AWQPSO 649RIZN/23-24 DATED 10.8.2023 ISSUED BY 2ND RESPONDENT TO THE PETITIONER ALONG WITH TRUE ENGLISH TRANSLATION.
Exhibit P7 TRUE COPY OF THE INTERIM ORDER DATED 11.11.2022 IN W.P.(C) NO.32054/2022 OF THE HON'BLE HIGH COURT OF KERALA.
Exhibit P8 TRUE COPY OF THE INTERIM ORDER DATED 3.7.2023 IN W.P.(C) NO.21264/2023 OF THE HON'BLE HIGH COURT OF KERALA.