M/S Hotel The Tiger vs. Union Of INDIA
Held
The Court noted that the vires of Section 140(3) of the CGST Act, 2017 and the proviso to Rule 117 of the CGST Rules, 2017 have been upheld by the Gujarat High Court in Willowood Chemicals Pvt. Ltd. Vs. Union of India. Furthermore, a similar writ petition, Obelisk Composite Technology LLP Vs. Union of India & Ors., was disposed of on similar terms. The Court also took note of the Supreme Court's order which led to the portal being opened for a short period, and that this period has expired. The Court was informed that it would be open for the petitioner to enter the portal as and when it is opened and avail the benefits. The learned counsel for the petitioner acknowledged that their case would be covered by the referred judgments and orders. Consequently, the writ petition was disposed of in terms of the aforementioned judgments and orders, with the understanding that the petitioner could avail benefits if the portal is reopened.
Facts
The petitioner, M/s Hotel The Tiger, filed a writ petition challenging the vires of Section 140(3) of the CGST Act, 2017 and the proviso to Rule 117 of the CGST Rules, 2017. The respondents, Union of India and others, brought to the Court's notice that the Gujarat High Court in Willowood Chemicals Pvt. Ltd. Vs. Union of India upheld the vires of these provisions. They also mentioned that a similar writ petition, Obelisk Composite Technology LLP Vs. Union of India & Ors., was disposed of on similar grounds. The respondents further stated that the Supreme Court's order in Special Leave to Appeal (Civil) Nos.32709-32710/2018 led to the portal being opened for a limited period, which has now expired. A copy of an order in M/s Vinay Fabrics Pvt. Ltd. Vs. Union of India & Ors. was also produced. The petitioner's counsel acknowledged that their case would be covered by these judgments and orders.
Key Issues
1. Whether Section 140(3) of the CGST Act, 2017 and the proviso to Rule 117 of the CGST Rules, 2017 are intra vires the Constitution. The petitioner's contention, implied by the filing of the writ petition, is that these provisions are unconstitutional. The respondents, by citing judgments from the Gujarat High Court and the Supreme Court, argue that the vires of these provisions have already been upheld. They also refer to the fact that the portal for availing benefits under these provisions was opened for a limited period as per a Supreme Court order, suggesting that the petitioner had an opportunity to avail the benefits during that time. The respondents' argument is that the petitioner should have availed the opportunity when the portal was open and can do so again if it is reopened.
Sections Cited
Section 140(3), Rule 117
AI-generated summary — verify with the full judgment below
[2023:RJ-JD:28422-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Writ Petition No. 9620/2020 M/s Hotel The Tiger, Through its Partner Mr. Lalit Picholiya S/o Shanti Lal Picchholiya, Aged about 56 years, Gangour Ghat, 33, Opp. Jagdish Temple, Udaipur-313001 (Raj.) ----Petitioner Versus
Union Of India, Through The Secretary Ministry Of Finance (Department Of Revenue) No.137, North Block, New Delhi-110001
Union Of India, Notice To Be Served Upon The Ld. Secretary Ministry Of Law And Justice 4Th Floor, A Wing, Rajendra Prasad Road, Shastri Bhawan, New Delhi-110 001
The Goods And Service Tax Council (Gst Council), Notice To Be Served Upon The Ld. Secretary Office Of The Gst Council Secretariat, 5Th Floor, Tower Ii, Jeevan Bharti Building, Janpath Road, Connaught Place, New Delhi-110 001 ----Respondents For Petitioner(s) : Mr. D.S. Sodha Mr. Manvendra Singh For Respondent(s) : Mr. Rajvendra Saraswat HON'BLE THE CHIEF JUSTICE AUGUSTINE GEORGE MASIH HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Order 06/09/2023 Learned counsel for the respondents has brought to the notice of the Court the aspect that the vires of Section 140 (3) of the CGST Act, 2017 and proviso
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