Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI MONDAY, THE 30TH DAY OF JANUARY 2023 / 10TH MAGHA, 1944 WP(C) NO. 2411 OF 2023 PETITIONER:
1 GRACE TRADING COMPANY PPIV5/190, ATHAYAKUNNU NEAR VAYANASASLA KANNUR, PIN - 670005 REPRESENTED BY ITS MANAGING PARTNER, T P MUNEER BY ADVS.
R.JAIKRISHNA NARAYANI HARIKRISHNAN C.S.ARUN SHANKAR ANISH P.
RESPONDENTS:
1 UNION OF INDIA THROUGH ITS SECRETARY (REVENUE), MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI G.P.O., PIN - 110001 2 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM G.P.O., THIRUVANANTHAPURAM, PIN - 695001 3 GST COUNCIL THROUGH ITS CHAIRPERSON, DEPARTMENT OF FINANCE, NORTH BLOCK, DELHI G.P.O., PIN - 110001 4 GOODS AND SERVICES TAX NETWORK EAST WING 4TH FLOOR, WORLD MARK - I AERO CITY, NEW DELHI REPRESENTED BY ITS - CHAIRMAN, PIN - 110037 5 COMMISSIONER OFFICE OF THE COMMISSIONER STATE GOODS AND SERVICE TAX DEPARTMENT TAX TOWER, KARAMANA P.O THIRUVANANTHAPURAM, PIN - 673006 6 STATE TAX OFFICER OFFICE OF THE STATE TAX OFFICER 3RD CIRCLE, STATE GOODS AND SERVICE TAX DEPARTMENT 4TH FLOOR, BSNL BHAVAN KANNUR, PIN - 670002 BY ADVS.
WPC No.2411 of 2023 2 DR. THUSHARA JAMES, SR.GOVERNMENT PLEADER SRI. S. MANU DEPUTY SOLICITOR GENERAL OF INDIA SIR. SREELAL N. WARRIER, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC No.2411 of 2023 3 T.R. RAVI, J.
------------------------------------ W.P.(C.) No.2411 of 2023 ------------------------------------ Dated this the 30th day of January, 2023 JUDGMENT This writ petition has been filed seeking a direction to the 6th respondent to consider and pass orders on Ext.P13 refund application and to refund the amount payable or to set off the refund amount so payable against the head of CGST/SGST liability for the month of July, 2017 and for other periods. The basis of the prayer is that, the petitioner instead of claiming input tax credit for Integrated Tax, claimed credit under the head Central Tax and State Tax. The petitioner relies on the judgment of this Court in W.P.
(C.) No.27648 of 2022 which was rendered in similar circumstances.
2. The learned Senior Government Pleader raised an objection that an adjustment as such is not
WPC No.2411 of 2023 4 possible because the claims are under two different heads.
3. On going through the judgment and after hearing the learned Senior Government Pleader and the petitioner, I find that the submission made by the petitioner is justified. This Court had in Ext.P15 directed refund and also directed the Tax Officer to consider whether the amount can be adjusted towards the tax liability of the petitioner under CGST/SGST.
I do not find any reason to take a different view in this matter. In the above circumstances, this writ petition is disposed of directing the 6th respondent to consider and pass orders on Ext.P13 refund application. The 6th respondent may also consider whether the refund if permitted can be set off against the CGST/SGST liability for the month of July 2017.
Necessary orders shall be issued within three weeks from the date of receipt of a certified copy of this
WPC No.2411 of 2023 5 judgment. Till such orders are issued, the recovery steps pursuant to Ext.P7 assessment order shall remain stayed.
Sd/- T.R.RAVI JUDGE SKP/30-01
WPC No.2411 of 2023 6 APPENDIX OF WP(C) 2411/2023 PETITIONER’S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE INVOICE ISSUED BY M/S MANIKGARH CEMENT UNIT, MAHARASHTRA TO PETITIONER DATED 22.7.2017 EXHIBIT P2 TRUE COPY OF THE INVOICE ISSUED BY M/S MANIKGARH CEMENT UNIT, MAHARASHTRA TO PETITIONER DATED 22.7.2017 EXHIBIT P3 TRUE COPY OF THE FORM GSTR 3B - MONTHLY RETURNS FOR JULY 2017 FILED BY THE PETITIONER DATED 25.8.2017 EXHIBIT P4 TRUE COPY OF THE INVOICE SUMMARY OF GSTR -2A DATED NIL EXHIBIT P5 TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER DATED 21.01.2021 EXHIBIT P6 TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER IN THE ONLINE PORTAL DATED 18.02.2021 EXHIBIT P7 TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE 6TH RESPONDENT FOR AY 2017-2018 DATED 21.12.2021 EXHIBIT P8 TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 6TH RESPONDENT DATED 11.04.2022 EXHIBIT P9 TRUE COPY OF THE ORDER ISSUED BY THE 6TH RESPONDENT DATED 30.06.2022 EXHIBIT P10 TRUE COPY OF THE REQUEST LETTER ISSUED BY THE PETITIONER TO THE 6TH RESPONDENT DATED 16.09.2022 EXHIBIT P11 TRUE COPY OF THE ORDER ISSUED BY THE 6TH RESPONDENT DATED 28.09.2022 EXHIBIT P12 TRUE COPY OF THE JUDGEMENT OF THIS HON'BLE COURT IN WP(C) 35868 OF 2018 DATED 12.11.2018 EXHIBIT P13 TRUE COPY OF THE REFUND APPLICATION SUBMITTED PETITIONER DATED NIL EXHIBIT P14 TRUE COPY OF THE ACKNOWLEDGEMENT OF THE REFUND APPLICATION RECEIVED FROM THE ONLINE PORTAL DATED 05.01.2023 EXHIBIT P15 TRUE COPY OF THE JUDGEMENT OF THIS HON'BLE COURT IN WP(C) 27648 OF 2022 DATED 28.11.2022 RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A. TO JUDGE