Thalia And Gami Enterprises vs. Union Of INDIA, Thru The Secretary And Ors
Original PDF →Facts
The petitioners, including Proviso Builders and Developers, AK Hi-tech Groups, Akshar Realtors, Neel Sidhi Realities, and Thalia & Gami Enterprises, filed writ petitions seeking a mandamus to direct the authorities to grant them the benefit of input tax credit (ITC). The Court noted that no formal application for ITC had been made by the petitioners to the respondents, nor was there any record of rejection or response from the respondents. The petitioners were claiming the ITC for the first time through these writ petitions without any prior adjudication. The Court also observed that the petitioners themselves admitted a lack of clarity in the respondents' stand and conflicting positions taken by them, necessitating an examination of factual positions to determine the applicability of circulars.
Held
The Court held that a writ of mandamus cannot be sought without first making a demand for the right or relief. The petitioners had approached the Court directly seeking ITC without making any formal application or demand to the respondents, and without any prior adjudication or rejection by the authorities. The Court found that the matter required an examination of factual positions to determine the applicability of circulars, which could only be done after a formal application was made and considered by the respondents. Therefore, the Court did not decide on the merits of the ITC claim itself. The ratio decidendi is that a writ of mandamus for a benefit requires a prior demand and adjudication by the relevant authority. The Court disposed of the petitions by granting liberty to the petitioners to make a formal application to the respondents within three weeks. The respondents were directed to consider and decide the application by a reasoned order within six weeks thereafter, with an option to hear the petitioners' representatives. If the decision was adverse, the petitioners were free to pursue other legal remedies.
Key Issues
1. Whether the High Court can entertain a writ petition seeking a mandamus for the grant of input tax credit when no prior application has been made to the concerned authorities and no decision or rejection has been recorded by them? (Question of law). Petitioner's contention: The petitioners argued that they were seeking a direction from the Court to grant them the benefit of ITC. They implied that the authorities' inaction or conflicting stands necessitated judicial intervention. They sought to tender a letter dated 22 September 2022, though it was not part of the record and was a response to a summons. Revenue's contention: The respondents, Union of India and others, implicitly argued that the petitioners had not exhausted the available remedies by not making a formal application or demand to the authorities for the ITC. They contended that the Court should not entertain the writ petition without such a prior step.
AI-generated summary — verify with the full judgment below
1 407 wp 82-21 and ors-c
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURI ICTION WRIT PETITION NO.82 OF 2021 Proviso Builders and Developers … Petitioner V/s. Union of India and ors. … Respondents WITH WRIT PETITION NO.83 OF 2021 AK Hi-tech Groups … Petitioner V/s. Union of India and ors. … Respondents WITH WRIT PETITION (ST.) NO.92474 OF 2020 Akshar Realtors … Petitioner V/s. Union of India and ors. … Respondents WITH WRIT PETITION NO.15413 OF 2022 Neel Sidhi Realities … Petitioner V/s. Union of India and ors. … Respondents WITH WRIT PETITION NO.1309 OF 2021 AND WRIT PETITION NO.5976 OF 2021 Thalia & Gami Enterprises … Petitioner V/s. Union of India and ors. … Respondents Priya Soparkar PRIYA RAJESH SOPARKAR RAJESH SOPARKAR Date: 2023.03.06 11:52:26 +0530
2 407 wp 82-21 and ors-c
--- Ms.Ritika Agarwal with Ms.Rachana Bhanushali i/by M/s ACE Legal, Advocate for the Petitioners. Mr.Pradeep S. Jetly, Senior Advocate alongwith Mr.J.B.Mishra, Ms. Maya Majumdar and Mr.Ashutosh Mishra, Advocates for the Respondents.
--- CORAM : NITIN JAMDAR AND ABHAY AHUJA, JJ. DATE : 22 FEBRUARY 2023. P.C.:- The Petitioners have sought a writ of mandamus to direct the authorities to grant to the Petitioner benefit of input tax credit.
After hearing the matter for some time it transpires that there is no application of the Petitioners made to the Respondents on record seeking the relief of grant of benefit of Input Tax Credit (“ITC”) and neither there is any rejection or response of the Respondents on record. Therefore, the Petitioner is claiming these amounts for the first time by filing the Writ Petition in this Court without making any claim/application. It is basic that if a writ of mandamus is sought first demand for the right needs to be made. Without making any formal demand and without is being adjudicated, the Petitioners have directly filed these petitions.
Also as per the case of the Petitioners themselves there is no clarity emerging from the stand of the Respondents in the reply Priya Soparkar
3 407 wp 82-21 and ors-c
affidavit. According to the Petitioners, the Respondents have taken contrary stands. As to which the circulars have to be made applicable to the Petitioners would entail examination of factual positions. Therefore, if an application is made by the Petitioners setting out the facts and if the Respondents reject the same relief relying on a particular provision of law or any Circular, then the occasion would arise for challenging that particular Circular or the position of law.
It is during the course of the hearing, when a query was asked as to why the Petitioners have not made a demand or grievance, a letter dated 22 September 2022 is sought to be tendered. The Petitioners are pending since the year 2020 onwards and the letter is of 22 September 2022. This is also not a letter as indicated by us as above but a response to a summons issued. Even this letter is also not part of the record.
In this position, the appropriate course of action would be to permit that the Petitioners make a formal application/request to the Respondents in respect of the claim in this Petition and thereafter, the Respondents to consider and decide the same and if the decision is adverse to the Petitioners leaving it open to the Petitioners to adopt such remedies.
Accordingly, we dispose of the Petitions granting liberty to the Petitioners to make an application in respect of the claim. If such an application is made within a period of three weeks from today, the Priya Soparkar
4 407 wp 82-21 and ors-c
Respondents will decide the said application by a reasoned order within a period of six weeks thereafter. It is open to the Respondents, if found necessary, to give audience to the Petitioners’ representatives.
Needless to state that if the decision is adverse to the Petitioners, it is open to the Petitioners to adopt such remedies as may be available in law.
The Writ Petitions are disposed of in the above terms. (ABHAY AHUJA, J.)
(NITIN JAMDAR, J.) …. Priya Soparkar
Reproduced from the public record of the Bombay High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.