M/S Sai Srushti Infrastructure Private Limited vs. The Union Of INDIA
Original PDF →No AI summary yet for this judgment.
Cause title — parties, addresses and appearances
ORAL ORDER
In this petition, petitioner seeks for the following reliefs:-
“i). issue an appropriate writ, order or direction more particularly one in the nature of Writ of Certiorari to quash section 16(4) of CGST/SGST Act read CGST Rules, 2017 and Karnataka State GST Rules, 2017, as being illegal, unconstitutional and untenable in law or read down the said provision so as to enable the Petitioner to avail the Input Tax Credit without any restrictions or time limit.
ii). Issue a writ of certiorari or such other Writ, Order or direction as this Hon'ble Court may deem fit to quash the Show Cause Notice SCN No.43/2023-24 – DIN - 2023125700000000F80B- 14291/23 dated 20.12.2023 in Annexure D and Form GST DRC-01 Reference No.DRC01_265222 dated 22.12.2023 in Annexure D-1 issued by Respondent No.2 as illegal, arbitrary, NC: 2024:KHC:37222 unsustainable and contrary to the provisions of CGST Act & KGST Act, 2017. iii). A declaration that the conditions as prescribed in Section 16(4) of the CGST/SGST Act are merely procedural in nature and cannot override the substantive conditions for availing ITC prescribed under Section 16(1) and Section 16(2) of the CGST/SGST Acts.
iv). Section 16(4) of the KGST/CGST Act imposing restriction on the accrued and vested rights is violative of Section 16 (1) and (2) of the CGST/KGST Act and has to be read down.
v). Declare the provision of Section 16(4) of the CGST/SGST Act, 2017 as being illegal, unreasonable, arbitrary and discriminator and therefore to be struck down as violative of Article 14, 19 and 300A of the Constitution of India.
vi). Declare the provisions of Rule 61(5) of the CGST/SGST Rules, 2017 and Notification No.49/2019-CT dated 9.10.2019 discriminatory and therefore to be struck down as violative of Article 14/19 of the Constitution of India.
vii). To pass such other order or orders, directions and writs as this Hon'ble High Court may deem fit in the facts and circumstances of the case, and in the interests of justice, including the costs of this writ petition. Quash the Order-in- Original in OIO No.28/2024 JC-1 - NC: 2024:KHC:37222 C.No.GEXCOM/ADJN/GST/JC/1026/2023-ADC/JC/952/24 - DIN No.20240357000000777FB6 dated 29.03.2024 in Annexure F passed by the Respondent No.2.”
Heard learned counsel for the petitioner and learned counsel for the revenue and learned AGA for the State and perused the material on record.
A perusal of the material on record will indicate that the issue in controversy involved in the present petition is directly and squarely covered by the judgment of this Court in the case of M/s.Sadhana Commissioner of Central Tax & others – W.P.No.6138/2020 dated 03.09.2024, which reads as under:-
Heard learned Senior counsel for the petitioner and learned counsel for the respondents – revenue and learned AGA for the State and perused the material on record.
Learned Senior counsel for the petitioner submitted that though several contentions have been urged by the petitioner who has also sought for various reliefs, during the pendency of the present petition, a new provision i.e., Section 16(5) has been inserted by “The Finance (No.2) Act, 2024” vide Central Act 15 of 2024, in which, Clause No.118 provides for condonation of delay in availment of credit and extended the time limit by providing NC: 2024:KHC:37222 that for supplies pertaining to the financial years 2017-18, 2018-19, 2019-20 and 2020-21, the petitioner would be entitled to avail / claim credit in any return filed up to 30.11.2021. It is submitted that the said “The Finance (No.2) Act, 2024” received presidential asset on 16.08.2024 and would be notified shortly. It was further submitted that in cases where assessees had paid amounts as pre-deposit under court orders or in appeal proceedings or amounts recovered by the respondents – revenue are paid by the assessees pursuant to recovery proceedings, the embargo contained in Clause 150 of the said “The Finance (No.2) Act, 2024” would not apply and was not applicable to the assessees, who would not be covered by the said embargo and consequently, they would be entitled to refund of the said amounts. It is therefore submitted that without going into the various other contentions urged by the petitioner and reliefs sought for by it and without expressing any opinion on the same, the present petition may be disposed of with a direction to consider and implement and give effect to the amended provisions contained in Section 118 of “The Finance (No.2) Act, 2024” relating to insertion of Section 16(5) to the CGST Act / KGST Act within a stipulated time frame.
Per contra, learned counsel for the respondents – revenue and learned AGA for the respondents – State jointly and fairly submit that it is true that Section 16(5) was inserted vide Clause 118 of “The Finance (No.2) Act, 2024” and that the same was applicable to the petitioner and other assessees and the time for filing returns and availing NC: 2024:KHC:37222 input tax credit would stand extended upto 30.11.2021. It is also submitted that since presidential asset has already been received to “The Finance (No.2) Act, 2024”, necessary Notification would be issued shortly and as such, the present petition may be disposed of accordingly.
As rightly contended by the learned Senior counsel for the petitioner as well as learned counsel for the respondents – revenue and learned AGA for the State, Section 16(5) was inserted into the CGST Act vide Clause 118 of the “The Finance (No.2) Act, 2024”, which reads as under:- “118. In Section 16 of the Central Goods and Services Act, with effect from the 1st day of July, 2017, after sub-section(4), the following sub-sections shall be inserted, namely:- (5) Notwithstanding anything contained in sub- section(4), in respect of an Invoice or Debit note for supply of goods or services or both pertaining to the financial years, 2017-18, 2018-19, 2019-20 and 2020-21, the registered person shall be entitled to take input tax credit in any return under Section 39 which is filed up to the thirtieth day of November, 2021. (6) xxxxxxxxxxxxx (i) xxxxxxxxxxxxxx (ii)xxxxxxxxxxxxxx ”
In view of the aforesaid amendment by inserting Section 16(5) to the CGST / KGST Act, the present petition deserves to be disposed of relegating the parties to the original authority to implement and give effect to the said NC: 2024:KHC:37222 provisions after providing sufficient and reasonable opportunity to the petitioner and hearing them and proceed further in accordance with law and by issuing certain directions in this regard.
In the result, I pass the following:- ORDER (i) Petition is hereby disposed of. (ii) The parties are relegated to the stage of show cause notice at Annexure-C dated 13.02.2020 issued by the respondent(s) and the respondents are directed to give effect to and implement the amended provisions contained in Section 118 of “The Finance (No.2) Act, 2024” relating to insertion of Section 16(5) to the CGST Act / KGST Act by providing sufficient and reasonable opportunity and hear the petitioner and proceed further in accordance with law within a period of one month from the date of receipt of a copy of this order. (iii) The impugned blocking of the Input Tax Credit (ITC) ledger of the petitioner vide Annexure-F dated 03.02.2020 is hereby quashed. (iv) The respondents are directed to unblock and release the credit balance of the petitioner in their ITC Ledger / Account, if not already released, immediately / forthwith upon receipt of a copy of this order without any delay. (v) All rival contentions on all other prayers sought for by the petitioner including the challenge to the statutory provisions are kept open and no opinion is expressed on the same. NC: 2024:KHC:37222
In view of the aforesaid facts and circumstances and the judgment of this Court in M/s.Sadhana Enviro Engineering’s case supra, I am of the view that the present petition also deserves to be allowed and disposed of in terms of the said judgment.
In the result, I pass the following:- ORDER (i) Petition is hereby disposed of in terms of the judgment of this Court in the case of M/s.Sadhana Enviro Engineering Services vs. Joint Commissioner of Central Tax & others – W.P.No.6138/2020 dated 03.09.2024. (ii) The impugned Order in Original at Annexure-F dated 29.03.2024 is hereby quashed. (iii) The parties are relegated to the stage of show cause notice dated 20.12.2023 and Summary dated 22.12.2023 issued by the respondent(s) and the respondents are directed to give effect to and implement the amended provisions contained in Section 118 of “The Finance (No.2) Act, 2024” relating to insertion of Section 16(5) to the CGST Act / KGST Act by providing sufficient and reasonable opportunity and hear the petitioner and proceed further in NC: 2024:KHC:37222 accordance with law within a period of one month from the date of receipt of a copy of this order. (iv) All rival contentions on all other prayers sought for by the petitioner including the challenge to the statutory provisions are kept open and no opinion is expressed on the same. (S.R.KRISHNA KUMAR) JUDGE
Srl/Mds
Reproduced from the public record of the Karnataka High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.