M/S Sadhana Enviro Engineering Services vs. The Joint Commissioner Of Central Tax
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:-
“a) This Hon’ble Court may issue a writ of declaration or any other appropriate writ or direction declaring the provisions of section 16(4) of CGST Act/SGST Act 2017 enclosed as Annexure-A as being illegal, unreasonable arbitrary and discriminatory and therefore to be struck down as violative of Article 14, 19, and 300A.
b) In the alternative this Hon’ble Court may to ‘read down’ the said wordings contained in Section 16(4) of CGST/SGST Act 2017 enclosed as Annexure-A so as to interpret the time limit for taking input tax credit as procedural and directory in nature;
c) Issue a writ of declaration or certiorari any other appropriate writ or direction declaring the provisions of Rule 61(5) of CGST/SGST Rules 2017 enclosed as Annexure-B Notification No.49/2019 Central Tax as being unreasonable, arbitrary and discriminatory and therefore to be struck down as violative of Article 14. d) Issue a writ of certiorari or any other appropriate writ or order to quash the show cause notice dated 13.2.2020 NC: 2024:KHC:37070 issued by the First Respondent enclosed as Annexure-C as violative of Articles 14, 19, and 300A being unreasonable arbitrary oppressive excessive and premeditated.
e) Issue a writ of declaration or any other appropriate writ or direction declaring the provisions of section 164(3) of CGST Act/SGST Act 2017 enclosed as Annexure-D as being unreasonable and discriminatory and therefore to be stuck down as violative of Article 14 and/or 19;
f) Issue a writ of declaration or certiorari any other appropriate writ or direction declaring the provisions of Rule 86A of CGST/SGST Rules 2017 enclosed as Annexure-E Notification No.75/2019 Central Tax as being unreasonable arbitrary and discriminatory and therefore to be struck down as violative of Article 14 and/or 19. g) Issue a writ of certiorari or any other appropriate writ or order to quash the impugned action of the respondent dated 03.02.2020 blocking the credit balance of Rs.33,78,077/- issued by the First Respondent enclosed as Annexure-F as violative of Articles 14,. 19 and 300A being unreasonable arbitrary oppressive excessive premeditated and without the authority of law and allow the refund claim.
h) Direct the Respondents by an appropriate writ or Order in the nature of Mandamus or otherwise to unblock or release the blocking of credit balance of Rs.33,78,077/- of the petitioner in their account in GSTN portal as per the blockage of credit balance issued by the First Respondent enclosed as Annexure-F. and NC: 2024:KHC:37070 i) Grant such other reliefs and this Honourable High Court may think fit including the cost of this writ petition.”
Heard learned Senior counsel for the petitioner and learned counsel for the revenue as well as 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 NC: 2024:KHC:37070 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 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”, NC: 2024:KHC:37070 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 NC: 2024:KHC:37070 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 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 NC: 2024:KHC:37070 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. (S.R.KRISHNA KUMAR) JUDGE
Srl.
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.