Mcl-Bel Bihar (Jv) vs. The State Of Bihar

In present writ application the petitioner has prayed for grant of following reliefs: a) For issuance of a writ in the nature of mandamus directing the Respondents and/or their men, servants, agents, assigns etc. not to give effect to the Order No. ZD100921012845Q dated 15.09.2021 passed by the 2nd Respondent in Form GST APL-04 on the basis of findings which are beyond the scope of the Show Cause Notice, as being arbitrary, 2/8 unreasonable, contrary to Section 16(5) of the CGST/BGST Act, 2017, without juri iction and violative of principles of natural justice; b) For issuance of a writ in the nature of mandamus directing the Respondents to allow the benefit of input tax credit claimed by the Petitioner in GSTR-3B return of November 2019 in light of the retrospective insertion of sub-section (5) in Section 16 of the CGST/BGST Act, 2017; c) For issuance of writ in the nature of Certiorari commanding the Respondents and/or their men, servants, agents, assigns etc. to forthwith transmit the records of the present case before this Hon'ble Court so that upon perusal of the same conscionable justice may be done to the Petitioner by quashing the impugned order in Form GST APL-04vide Order No. ZD100921012845Q dated 15.09.2021 issued by the 3rd Respondent; d) For issuance of writ in the nature of Prohibition prohibiting the Respondents and/or their men, servants, agents, assigns etc. from implementing the impugned order in Form GST

Learned counsel for the petitioner submits that the petitioner is a joint venture of Monte Carlo Limited and Backbone Enterprises Limited and is engaged in construction business. Petitioner is a registered person having GSTIN: 10AAEAM4309D1ZB.

Learned counsel for the petitioner submits that it was issued a notice in Form GST ASMT-10 dated 14.10.2019 after conducting the scrutiny of returns filed by the petitioner for period 2018-2019, pointing therein the difference in tax liability between GSTR-1 and GSTR-3B returns. On 04.11.2019, the petitioner has submitted its reply.

Learned counsel for the petitioner further submits that Respondent No. 3 on 14.01.2020 has issued an intimation in GST DRC-01 asking the petitioner to discharge their GST liability of Rs. 89,92,250/-. Subsequently a show cause notice in Form GST DRC-01 dated 08.02.2020 was issued to the petitioner and after considering the reply of the petitioner, respondent no. 3 has passed the adjudication order in Form DRC-07 dated 03.03.2020 and confirmed the demand of Rs. 75,93,556/- against tax, Rs. 20,12,292/- against interest and Rs. 75,93,556/- against the penalty for period 2018-19. 6. Learned counsel for the petitioner also submits that against the impugned order dated 03.03.2020 the petitioner has preferred an appeal before the learned Additional Commissioner of State Taxes (Appeal), Central Division, Patna. Learned appellate authority by order dated 15.09.2021 has modified the demand notice with respect to penalty and interest but has not 4/8 interfered with the impugned order of assessment with respect to tax and prays that the order dated 15.09.2021 may not be given effect to, as findings are beyond the scope of show cause notice and are being arbitrary, unreasonable, and contrary to Section 16(5) of CGST/BGST Act 2017. 7. Per contra, Mr. Ravish Chandra, learned counsel appearing for the Respondent Department submits that the appellate authority, after proper consideration has allowed the appeal preferred by the petitioner and the present writ application is misconceived.

Learned counsel for the Respondent Department submits that petitioner has filed return in GSTR-3B and GSTR- 1 for 2018-2019 and it was detected by the Respondent assessing authority that petitioner has admitted and paid lesser tax through GSTR-3B as compared with the liability admitted by it in GSTR-1 for August 2018 and on detection of such discrepancy, notice in Form DRC-01 dated 08.02.2020 was issued to the petitioner with grant of opportunity of personal hearing. In course of hearing, the petitioner admitted that erroneously it has admitted lower tax liability but paid the same with return filed for November 2019. The petitioner has not rectified the error within the deadline as per the condition 5/8 stipulated under Section 39 of CGST/BGST Act.

Learned counsel for the Respondent Department further submits that imposition of demand under Section 74 of CGST/BGST Act of Rs. 1,71,99,404 vide order dated 03.03.2020 was reduced by the appellate authority to Rs. 1,18,93,306/- and against this the petitioner has not moved before the appellate tribunal against the order of appellate authority and instead has filed the present writ application before this Hon’ble Court after a delay of almost five years and on this ground alone the present writ application is fit to be rejected.

Learned counsel for the petitioner in its rejoinder referring to paragraph 18 of the writ petition submits that the Respondent No. 2 did not accept the payment made by the petitioner in GSTR-3B return of November 2019 on the ground that the petitioner discharged the tax liability by utilizing the input tax credit pertaining to August 2018, which was claimed belatedly in November 2019. 11. Learned appellate authority in the impugned order dated 15.09.2021 has stated that input tax credit could have been claimed only up to the due date for furnishing the return under Section 39 for the month of September 2019 or the date of filing 6/8 of annual return for 2018-19, whichever is earlier and referring the notification dated 13 December, 2024 prays for direction not to give effect to order dated 15.09.2021

The present writ application against the impugned order dated 15.09.2021 has been filed after an inordinate delay of almost five years and in terms of judgment passed by this Hon’ble Court on 14.07.2026 in CWJC No. 6180 of 2026 (M/s M.K Trader Vs State of Bihar & Ors.), the present writ application is fit to be rejected on the ground of delay, but this Court finds that the notification dated 13.12.2024 issued by the State GST Department has provided a leeway to the petitioner for availment of input tax credit within a period of six month from the date of issuance of notification, which is as follows:- S.O. 504 Dated 13th December 2024-In exercise of the powers conferred under the section 148 of the Bihar Goods and Services Tax Act, 2017 (Bihar Act 12, 2017) (hereinafter referred to as the said Act), the Governor of Bihar, on the recommendations of the Council, hereby notifies the following special procedure for rectification of order, to be followed by the class of registered persons (hereinafter referred to as the said person), against whom any order under section 73 or section 74 or section 107 or section 108 of the said Act has been issued confirming demand for wrong availment of input tax credit, on account of contravention of provisions of sub-section (4) of section 16 of the said Act, but where such input tax credit is now available as per the provisions of sub-section (5) or sub-section (6) of section 16 of the said Act, and where appeal against the said order has not been filed, namely:- 7/8

The said person shall file, electronically on the common portal, within a period of six months from the date of issuance of this notification, an application for rectification of an orderissued under section 73 or section 74 or section 107 or section 108 of the said Act, as the case may be, confirming demand for wrong availment of input tax credit, on account of contravention of provisions of sub-section (4) of section 16 of the said Act, but where such input tax credit is now available as per the provisions of sub-section (5) or sub- section (6) of section 16 of the said Act, and where appeal against the said order has not been filed.

The said person shall, along with the said application, upload the information in the proforma in Annexure A of this notification.

The proper officer for carrying out rectification of the said order shall be the authority who had issued such order, and the said authority shall take a decision on the said application and issue therectified order, as far as possible, within a period of three months from the date of the said application.

Where any rectification is required to be made in the order referred to in paragraph 1 and, the said authority has issued a rectified order thereof, then the said authority shall upload a summary of the rectified order electronically- (i) in FORM GST DRC-08, in cases where rectification of an order issued under section 73 or section 74 of the said Act is made; and (ii) in FORM GST APL-04, in cases where rectification of an order issued under section 107 or section 108 of the said Act is made.

The rectification is required to be made only in respect of demand of such input tax credit which has been alleged to be wrongly availed in contravention of provisions of sub- section (4) of section 16 of the said Act, but where such input tax credit is now available as per the provisions of sub-section (5) or sub- section (6) of the said section 16. 8/8

Where such rectification adversely affects the said person, the principles of natural justice shall be followed by the authority carrying out such rectification.

The petitioner in his indolent approach has not availed the benefit of the amnesty scheme but has filed the present writ application with delay of almost five years which in terms of Judgment passed by this Court in case of M/S M K Traders Vs State of Bihar & Ors. is not entertainable.

Accordingly, the present writ application is misconceived and dismissed.