M/S. Sibmost-Tata Projects (Jy) vs. State Of Andhra Pradesh
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THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SMT. JUSTICE V.SUJATHA
WRIT PETITION No. 23089 OF 2020
ORDER:(Per Hon’ble Sri Justice C.Praveen Kumar) 1) Heard Sri. S. Vivek Chandrasekhar, learned Counsel for the Petitioner and the learned Government Pleader for Commercial Taxes. 2) The present Writ Petition came to be filed seeking issuance of a writ of Mandamus declaring the Order, dated 29.08.2020, passed by the 2nd Respondent rejecting the refund claim of the Petitioner is illegal, void, without juri iction and violative of Articles 14 and 19 of the Constitution of India. 3) The Petitioner herein is a Joint Venture of SIBMOST – TATA Projects Limited, engaged in business of development of infrastructure. The Petitioner is registered on the rolls of the 2nd Respondent vide GST number GSTIN No. 37AA0AS5529H1ZZ. Pursuant to the tender invited by the 3rd Respondent for Rehabilitation and Upgradation of NH214A, the Petitioner being the lowest bidder was awarded the works. The contract price for all the three packages was Rs.676.51 crores, which is inclusive of all taxes.
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4) It may not be necessary for us to go into all the details mentioned in the Writ Affidavit, for the reason that the request of the Petitioner in this Writ Petition is for refund of the amount lying in the ledger. It would be appropriate to extract the order passed, which is as under:
“2. The TDS amount deducted by the deductor/ contractee under Sec. 51 of AP GST Act, 2017 is “Tax” amount. It is a Tax component. It is in the form of Tax. The cash balance lying in the cash ledger of the assessee is TDS amount it is not the amount deposited by the assessee on their own, towards any tax, penalty, interest and other amount, by way of challan. The assessee is claiming refund of cash lying in their cash ledger. In other words they are ‘claiming refund of tax component’. According to them, the cash lying in their cash ledger is in excess of their output liability. That means, their output liability need not be discharged by utilization of TDS amount lying in their cash ledger. Which indicates, the deduction of TDS made by the contractee/s is in excess of their output liability of the assessee. However on verification of ITC from GST portal (as on 28.08.2020) by comparing GSTR 3B vs. GSTR-2A there is a difference.” 5) The learned Counsel for the Petitioner placed on record a Circular issued by Government of India on 17.11.2021, wherein, it has been categorically held that, “any amount, which remains unutilized in electronic cash ledger, after discharge of tax dues and other dues payable under CGST Act and rules made thereunder, can be refunded to the registered person as excess balance in electronic cash ledger in terms of proviso to sub-section (1) of Section 54, read with sub-section (6) of section 49 of CGST Act.”
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6) Learned Government Pleader for Commercial Taxes would submit that as the Circular came to be issued after the order is passed, the matter may be remanded back to the Officer concerned enabling him to decide afresh, taking into consideration the Circular issued by the Government of India. 7) Having regard to the above, the order under challenge is set-aside and matter is remanded back to the Assistant Commissioner, who is arrayed as 2nd Respondent to pass orders afresh after taking into consideration the Circular issued by Government of India on 17.11.2021 and the orders passed by the various authorities on this issue in accordance with law, preferably within a period of three [03] weeks from today, after hearing the Writ Petitioner, if required. 8) With the above direction, the Writ Petition is disposed off. No order as to costs. 9) Consequently, miscellaneous petitions, if any, pending shall stand closed. _______________________________ JUSTICE C. PRAVEEN KUMAR
______________________ JUSTICE V.SUJATHA Date: 28.03.2022 Note: Issue C.C. by tomorrow, B/o. S.M…
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THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SMT. JUSTICE V.SUJATHA
WRIT PETITION No.23089 OF 2020
DATE: 28.03.2022
S.M…
Reproduced from the public record of the Andhra Pradesh High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.