Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 28TH DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944 WP(C) NO. 27648 OF 2022 PETITIONER:
JAYASREE TRAVELS AND TOURS COMPANY VALLAKKADAVU, THIRUVANANTHAPURAM.
REPRESENTED BY ITS PARTNER JAYASREE VIKRAMAN., PIN - 695008 BY ADVS.
RAHUL A.
S.ANIL KUMAR (TRIVANDRUM) SABU C.J M.RAJAGOPAL APARNA ANIL RESPONDENTS:
1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY (REVENUE) MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI., PIN - 110001 2 THE PRINCIPAL SECRETARY, FINANCE (GST WING) FINANCE (REV-1) DEPARTMENT 4TH LEVEL, A-WING, DELHI SECRETARIAT, I.P. ESTATE, NEW DELHI., PIN - 110002 3 GST COUNCIL REPRESENTED BY ITS CHAIRPERSON DEPARTMENT OF FINANCE, NORTH BLOCK NEW DELHI., PIN - 110001 4 GOODS AND SERVICES TAX NETWORK REPRESENTED BY ITS CHAIRMAN, EAST WING, 4TH FLOOR, WORLD MARK- 1, AEROCITY, NEW DELHI., PIN - 110037 5 THE COMMISSIONER STATE GOODS AND SERVICES TAX DEPARTMENT, TAX TOWERS, KARAMANA, THIRUVANANTHAPURAM ., PIN -
W.P.(C)No.27648/2022 2 695002 6 THE NODEL OFFICER FOR STATE GST STATE GOODS AND SERVICES TAX DEPARTMENT,TAX TOWERS, KARAMANA, THIRUVANANTHAPURAM, KERALA ., PIN - 695002 7 THE DEPUTY COMMISSIONER STATE GST DEPARTMENT, TAX TOWERS, 4TH FLOOR, KARAMANA, THIRUVANANTHAPURAM., PIN - 695002 BY ADVS.
S.MANU SREEJITH P. R OTHER PRESENT:
ADV. THUSHARA JAMES (SR GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.27648/2022 3 JUDGMENT
The petitioner is a registered dealer under the Central Goods and Services Tax Act, 2017 (in short 'CGST') and the Kerala State Goods and Services Tax Act, 2017 (in short 'SGST'). The petitioner was issued with Ext.P3 notice as to why the amount of GST plus interest and penalty should not be imposed on the petitioner for short fall in payment of an amount of Rs.9,37,686.94.
2. It is the case of the petitioner that while filing GSTR 3B for the year, though the value of all transactions was correctly shown, the tax was paid wrongly under the IGST head, instead of CGST / SGST. The petitioner has filed Ext.P8 and P8(a) applications for refund of amounts paid wrongly under the IGST head for the months of September and October of 2017. The petitioner prays that a direction may be issued to the 7th respondent to consider and pass orders on Ext.P8 and P8(a) and to adjust the same against CGST/ SGST, payable by the petitioner for the same months. The learned counsel for the petitioner also relies on Ext.P7 judgment of this Court to contend that such adjustment is permissible.
3. The learned Senior Government Pleader on instructions would submit that it may not be possible to give any adjustment and
W.P.(C)No.27648/2022 4 if any amount of IGST has been wrongly paid by the petitioner, the application for refund made by the petitioner can be considered and the petitioner can pay the CGST/SGST from out to the amounts so refunded to him. It is also submitted that Ext.P7 judgment arose out of a detention issue and may not be applicable on the facts of this case.
4. Having heard the learned counsel for the petitioner and the learned Senior Government Pleader appearing for the respondents. I am of the view that this writ petition can be disposed of in the following manner:
The 7th respondent shall immediately take up for consideration of Ext.P 8 and P8(a) applications filed by the petitioner for refund. If it is found that the petitioner has wrongly paid amount payable towards CGST/ SGST under the IGST head, the amount so paid by the petitioner shall be refunded to him. The 7th respondent will also consider as to whether the amount can be adjusted against the tax liability of the petitioner under CGST/SGST for the months of September and October of 2017 and in respect of which Ext.P3 notice has been issued to the petitioner, also having regard to Ext.P7 judgment of this Court. The 7th respondent shall do the needful within a period of three weeks from the date of receipt of
W.P.(C)No.27648/2022 5 a certified copy of this judgment and shall also provide to the petitioner an opportunity of being heard. The interim order will continue to operate until 7th respondent passes orders as directed above.
Sd/- GOPINATH P.
JUDGE TR
W.P.(C)No.27648/2022 6 APPENDIX OF WP(C) 27648/2022 PETITIONER EXHIBITS Exhibit P1 A COPY OF NOTICE DATED 01-07 2020 ISSUED BY THE 7TH RESPONDENT IN FORM ASMT-10.
Exhibit P2 A COPY OF REPLY DATED 20-08-2020 FILED BY THE PETITIONER TO EXT.P1.
Exhibit P3 A COPY OF NOTICE DATED 27-02-2022 ISSUED BY THE 7TH RESPONDENT IN FORM GST DRC-01A.
Exhibit P4 A COPY OF REPLY DATED 03-03-3022 FILED BY THE PETITIONER TO EXT.P3 NOTICE.
Exhibit P5 A COPY OF NOTICE DATED 31-03-2022 ISSUED BY THE 7TH RESPONDENT.
Exhibit P6 A COPY OF LETTER DATED 21-07-2022 FILED BY THE PETITIONER BEFORE THE 7TH RESPONDENT.
Exhibit P7 A COPY OF THE JUDGMENT DATED 12-11-2018 OF THIS HON'BLE COURT IN W.P.(C) NO.35868 OF 2018.
Exhibit P8 A COPY OF THE RECEIPT DATED 15-11-2022 IN RESPECT OF THE APPLICATION RELATING TO SEPTEMBER, 2017 Exhibit P8(a) A COPY OF THE RECEIPT DATED 15-11-2022 IN RESPECT OF THE APPLICATION RELATING TO OCTOBER, 2017