Shree Niwas Basudeo And Co. And Anr. vs. Union Of INDIA And 5 Ors.

WP(C)/1584/2024HC GauhatiGSTCNR GAHC01005742202409 March 2025Bench: HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY3 pages

AI SummaryRemanded

Facts

The petitioners, Shree Niwas Basudeo and Co. and Shri Sanjay Deorah, challenged a Demand-cum-Show Cause Notice dated December 8, 2023, issued by the Assistant Commissioner, Central GST & Central Excise Division, Dibrugarh. The notice alleged inadmissible Input Tax Credit (ITC) availed during Financial Year 2018-2019, contravening Section 4 of the CGST Act, 2017. It also cited availing excess ITC in GSTR-3B compared to GSTR-2A for the same period. A third allegation pertained to filing GSTR-3B for FY 2018-19 after the prescribed period, with liability for interest under Section 50(1) of the CGST Act, 2017, which the petitioners claimed to have already paid.

Held

The Court noted that the petitioners had filed a reply to the Demand-cum-Show Cause Notice. The Court did not delve into the merits of the allegations concerning inadmissible ITC, excess ITC, or delayed filing and interest. Instead, it disposed of the writ petition by relegating the petitioners to the Assistant Commissioner, Central GST & Central Excise Division, Dibrugarh (Respondent No. 5). The Assistant Commissioner was directed to consider the petitioners' claims after providing an opportunity of hearing and decide the matter on its merits. The Court explicitly stated that any observations made in the order should not be treated as a comment on the merits of the claims urged by the petitioners. The interim order, if any, was vacated.

Key Issues

1. Whether the Demand-cum-Show Cause Notice dated December 8, 2023, issued by the Assistant Commissioner, Central GST & Central Excise Division, Dibrugarh, is valid, considering the alleged contravention of Section 4 of the CGST Act, 2017, in light of the amendment to Section 16(4) of the CGST Act, 2017? Petitioner's contention: The petitioners argued that the amendment to Section 16(4) of the CGST Act, 2017, would render the ground of inadmissible ITC availed during FY 2018-2019 invalid. They further submitted that they could substantiate their claims regarding excess ITC in GSTR-3B compared to GSTR-2A if granted an opportunity to reply. Regarding the delayed filing of GSTR-3B and interest liability, they stated that the interest has already been paid. Revenue's contention: The respondent authorities submitted that the notice was issued and that they would consider the petitioners' reply if filed.

Sections Cited

Section 16(4), Section 50(1), Section 4

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

Page No.# 1/3 GAHC010057422024 2025:GAU-AS:2492 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1584/2024 SHREE NIWAS BASUDEO AND CO. AND ANR. A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT A.T. ROAD MARWARI PATTY, P.O. P.S. AND DISTRICT- DIBRUGARH ASSAM. REPRESENTED BY ITS MANAGING PARTNER SHRI SANJAY DEORAH I.E. THE PETITIONER NO.2. 2: SHRI SANJAY DEORAH SON OF SRI SHYAM SUNDER DEORAH RESIDENT OF A. T. ROAD MARWARI PATTY P.O. P.S. AND DISTRICT- DIBRUGARH ASSA VERSUS UNION OF INDIA AND 5 ORS. REPRESENTED BY THE SECRETARY OF GOVERNMENT OF INDIA, MINISTRY OF FINANCE NEW DELHI-110001 2:THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS 1ST FLOOR TOWER NBCC PLAZA 1 SECTOR 5 PUSHP VIHAR NEW DELHI 110017. REPRESENTED BY ITS CHAIRMAN 3:THE GOODS AND SERVICES TAX COUNCIL 5TH FLOOR TOWER-II JEEVAN BHARATI BUILDING JANPATH ROAD CONNAUGHT PALACE NEW DELHI-110001. REPRESENTED BY ITS CHAIRPERSON 4:THE COMMISSIONER CENTRAL GOODS AND SERVICES TAX DIBRUGARH ASSAM. Page No.# 2/3 5:THE ASSISTANT COMMISSIONER CENTRAL GST AND CENTRAL EXCISE DIVISION DIBRUGARH ASSAM. 6:THE SUPERINTENDENT CENTRAL GST AND CENTRAL EXCISE DIVISION DIBRUGARH ASSAM Advocate for the Petitioner : MR. A K GUPTA, MS B SARMA,MR. R S MISHRA Advocate for the Respondent : DY.S.G.I., SC, GST BEFORE HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY

ORDER

10-03-2025

Heard Mr. R.S.Mishra, learned counsel for the petitioners and Mr. S.C.Keyal, learned Standing counsel, GST for the respondents.

The petitioner has made challenge in this petition a Demand-cum-Show Cause Notice dated 08.12.2023 issued by the Assistant Commissioner, Central GST & Central Excise Division, Dibrugarh.

Mr. Mishra, learned counsel for the petitioners submits that the aforesaid Demand- cum-Show Cause Notice was issued alleging that the petitioners have availed in- admissible Input tax during the Financial Year 2018-2019 in contravention of Section 4 of the CGST Act, 2017. However, by virtue of amendment of Section 16 (4) of the CGST Act, 2017, such ground will not remain.

Second allegation in the aforesaid Demand-cum-Show Cause Notice is that the petitioners have availed excess ITC in GSTR3B during the Financial Year 2018-19 in comparison to GSTR 2A.

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Learned counsel for the petitioners submits that they shall be able to substantiate the same if a chance is granted to them to reply to the Demand-cum-Show Cause Notice.

Third allegation in the aforesaid Demand-cum-Show Cause Notice pertains to filing of GSTR 3B for the period of Financial Year 2018-19 after the prescribed period and liability to pay interest under Section 50 (1) of the CGST Act, 2017 and the same has already been paid by the petitioners.

Mr. Keyal, learned Standing counsel, GST submits that the notice has been issued to the petitioners and if they file reply to such notice, the respondent authorities shall consider the same.

Mr. Mishra, learned counsel for the petitioners submits that they have filed reply to such Demand-cum-Show Cause Notice dated 08.12.2023. 9. In view of the aforesaid, this writ petition stands disposed of by relegating the petitioners to the Assistant Commissioner, Central GST & Central Excise Division Dibrugarh, respondent No.5 and he shall consider the claim of the petitioners after giving an opportunity of hearing and shall decide the same as per merit.

10.

However, it is made clear that any observation made in this order shall not be treated as a comment on the merit of the claim that has been urged by Mr. Mishra, learned counsel for the petitioners.

11.

The interim order passed earlier is hereby vacated.

JUDGE Comparing Assistant

Reproduced from the public record of the Gauhati High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.