Imtac INDIA PVT. LTD. vs. Assistant Commissioner Of
Original PDF →No AI summary yet for this judgment.
Cause title — parties, addresses and appearances
ORAL ORDER
In this petition, petitioner seeks the following reliefs:-
“a. Issue a Writ of mandamus or any other appropriate writ or order or direction declaring insofar the Petitioner is concerned that the section 16(4) of the Central Goods and Services Tax Act, 2017 (hereinafter called the CGST Act) and section 16(4) of the Karnataka Goods and Services Tax Act, 2017 (hereinafter called the KGST Act) denying entitlement of input tax credit in respect of any invoice or debit note for supply of goods or services or both after the due date of furnishing of the return under section 39 for the month of September following the end of the financial year to which such invoice or debit note pertains of the relevant annual return is violative of Article 14 and 300A of the Constitution of India. Printed copy of section 16 is enclosed as Annexure-A. NC: 2024:KHC:37076 b. Issue a Writ of mandamus or any other appropriate writ or order or direction declaring insofar the Petitioner is concerned that the section 16(4) of the CGST and KGST Act, 2017 to the extent it seeks to deny input tax credit if not taken within the due date of furnishing of the return for the month of September following the end of the financial year to which any invoice or debit note pertains or furnishing of annual return, whichever is earlier is arbitrary and illegal and ultra vires the scheme of CGST and KGST Act, 2017. c. Issue a Writ of mandamus or any other appropriate writ or order or direction declaring insofar the Petitioner is concerned that the conditions as prescribed in section 16(4) of the CGST and KGST Act are merely procedural in nature and cannot override the substantive conditions as mandated in sec. 16(1) and section 16(2) of the said acts.
d. Issue a Writ of mandamus or any other appropriate writ or order or direction declaring insofar the Petitioner is concerned that in vie of the non obstante clause present in section 16(2) of the CGST and KGST Act the same would prevail over section 16(4) of the said acts.
e. Issue a Writ of mandamus or any other appropriate writ or order or direction declaring insofar the Petitioner is concerned that the GSTR-3B return cannot be said to be a return prescribed under section 39(1) of the CGST Act, 2017 as it does not satisfy the parameters of a return contemplated under section 39(1) of the said act. NC: 2024:KHC:37076 f. Issue a Writ of certiorari or any other appropriate writ or order or direction quashing the order issued under section 73(9) of the Central Goods and Services Tax Act, 2017/ State Goods and Services Tax Act, 2017 (for short, the Act) dated. 15.10.2022 in Form GST-DRC-07 and issued by the Respondent No.1 and enclosed as Annexure-B.
g. Issue a Writ of certiorari or any other appropriate writ or order or direction quashing the Rectification order issued under section 161 of the Central Goods and Services Tax Act, 2017 / State Goods and Services Tax Act, 2017 (for short, the ‘Act’) dated. 13.12.2022 in Form GST-DRC-08 and issued by the Respondent No.1 and enclosed as Annexure-C.
h. And pass such other order as this Hon’ble court deems fit and proper in the interest of justice and equity.”
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 NC: 2024:KHC:37076 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 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 NC: 2024:KHC:37076 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 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:- NC: 2024:KHC:37076 (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 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 NC: 2024:KHC:37076 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.
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. NC: 2024:KHC:37076 (ii) The impugned Order at Annexure-B dated 15.10.2022 and impugned order at Annexure-C dated 13.12.2022 are hereby quashed. (iii) The parties are relegated to the stage of show cause notice dated 23.06.2022 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. (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.