Smt. Alka Rajput And Another vs. State Of U.P. And 2 Others
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The petitioners, Smt. Alka Rajput and another, challenged the U.P. Avas Evam Vikas Parishad's (respondent no. 2) decision to charge GST at 8%. The petitioners contended that the applicable rate should be 1%, citing instructions from the Government of India, Ministry of Finance dated 07.05.2019. The dispute centers on the correct GST rate applicable to the transaction between the petitioners and the U.P. Avas Evam Vikas Parishad. The High Court was approached by the allottees against the Parishad.
Held
The High Court declined to adjudicate the dispute on merits at the preliminary stage, particularly in a matter brought by an allottee against the U.P. Avas Evam Vikas Parishad. The Court observed that the primary determination of the correct GST rate should be made by the appropriate authority under the GST Act. The Court directed respondent no. 2 (U.P. Avas Evam Vikas Parishad) to ascertain the correct applicable GST rate from the appropriate authority and issue a necessary communication to the petitioners within three months. Any deposit required from the petitioners towards GST liability was stayed pending this final communication. The ratio decidendi is that disputes regarding the correct GST rate should first be resolved by the designated GST authorities before judicial intervention, especially at the writ stage.
Key Issues
1. Whether the U.P. Avas Evam Vikas Parishad is entitled to charge GST at 8% or 1% on the transaction in question, considering the instructions issued by the Government of India, Ministry of Finance dated 07.05.2019, and the relevant notifications under the GST Acts, 2017 (Central & U.P.)? Petitioner's Contention: The petitioners argued that the rate of 8% charged by the U.P. Avas Evam Vikas Parishad is contrary to the Government of India's instructions dated 07.05.2019, implying the correct rate should be 1%. Respondent's Contention: The judgment does not record specific arguments from the respondents regarding the rate of tax. However, it notes that the rate of tax is to be charged as per notifications issued under the GST Acts, 2017.
Sections Cited
GST Acts, 2017
AI-generated summary — verify with the full judgment below
Court No. - 39 Case :- WRIT - C No. - 15702 of 2023 Petitioner :- Smt. Alka Rajput And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Nitinjay Pandey Counsel for Respondent :- CSC,Ravi Anand Agarwal,Vivek Saran Hon'ble Saumitra Dayal Singh,J. Hon'ble Vinod Diwakar,J.
Heard Sri Rohit Upadhayay, Advocate, holding brief of learned counsel for the petitioners; Sri Ravi Anand Agarwal, learned counsel for respondent nos. 2 and 3 and learned Standing Counsel for the State-respondent.
The only dispute between the parties is whether the respondent U.P. Avas Evam Vikas Parishad is entitled to charge GST @ 1% or 8%. According to the petitioners, the rate of 8% presently specified by the U.P. Avas Evam Vikas Parishad is contrary to the instructions issued by the Government of India, Ministry of Finance dated 07.05.2019. 3. Reference has also been made to certain internal communications between the different authorities of the U.P. Avas Evam Vikas Parishad. Primarily, rate of tax is to be charged as per notification issued under the GST Acts, 2017 (Central & U.P.). Therefore, we are not inclined to adjudicate the said issue at this preliminary stage that too in a dispute brought by the allottee against the U.P. Avas Evam Vikas Parishad.
Accordingly, without adjudicating the merits of the case, we dispose of the writ petition with the observation, in case the petitioners place a copy of this order before respondent no.2, the said respondent may ascertain the correct rate of tax applicable to the transaction from the appropriate authority under the GST Act and issue necessary communication to the petitioners in that regard.
Such exercise may be completed within a period of three months from today. Any deposit that the petitioners may be required to make at present towards GST liability shall remain stayed subject to the final communication to be made by the respondent no.
Order Date :- 2.8.2023 Abhilash . (Vinod Diwakar, J.) (S. D. Singh, J.) ABHILASH SINGH High Court of Judicature at Allahabad
Reproduced from the public record of the Allahabad High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.