2020 (12) TMI 791 - HC - GST

Condonation of delay in rectification of the tax invoice, mentioned in the name of petitioner - whether the Superintendent of State Tax being the authority which passed the order dated 15.11.2018 had the authority to condone the delay on the face of the petition filed under Section 161 of the TSGST Act for rectifying the defects or errors in the impugned notice dated 10.10.2018 and the order dated 15.11.2018? - applicability of Section 29(2) of the Limitation Act vis a vis Section 69 of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 - HELD THAT - Section 161 of the TSGST Act provides that for purpose of any error which is apparent on the face of the record in the decision or the order or the notice or the certificate or any other documents issued by any authority, the said authority can exercise the said power to rectify either on own motion of the said authority or by the officers appointed under TSGST Act or CGST Act or by the affected person, if such action is taken within a period of three months from the date of such decision, or order or notice or certificate or any other documents as the case may be. The first proviso stipulates that no such rectification shall be done after a period of six months from the date of issue of such decision or order or notice or certificate or any other documents. The second proviso provides that the said period of six months shall not apply in such cases where the rectification is purely in the nature of correction of clerical or arithmetical error, arising from any accidental slip or omission. It is apparent on the face of the said provision of Section 161 of the TSGST Act that this is a complete code within itself and it has impliedly excluded the Limitation Act. Thus, what has been observed by the Superintendent of Taxes in the decision communicated by the reply dated 17.12.2019 does not suffer from any infirmity. Moreover, the Limitation Act will not apply automatically unless it is extended to the special statute such as TSGST Act inasmuch as law in this regard is absolutely unambiguous that except in the case of the suit, appeal or application in the court, the limitation of Act will not apply/extend for the local or special statute. Thus, the petitioner‟s contention in respect of the extension of the Limitation Act stands dismissed. That apart, in the considered view of this court, the rectification as sought is not covered by Section 161 of the TSGST Act. It is needless to say that when a legal action is barred by limitation unless that bar is overcome, no decision can be rendered on merit. Petition dismissed.

Summary

Issues Involved:

1. Validity of the show cause notice dated 10.10.2018.
2. Legality of the order dated 15.11.2018 imposing tax, interest, and penalty.
3. Rejection of the petition under Section 161 of the TSGST Act for rectification of errors.
4. Applicability of Section 5 of the Limitation Act to condone delay under Section 161 of the TSGST Act.

Detailed Analysis:

1. Validity of the Show Cause Notice Dated 10.10.2018:

The petitioner, a sole proprietorship firm, challenged the show cause notice dated 10.10.2018 on the grounds of defects/errors. The notice was issued under Section 74(1) of the TSGST Act, alleging wrongful utilization of Input Tax Credit (ITC) amounting to ?20,03,893.80. The petitioner argued that the tax invoices were erroneously prepared by Bharati Hexacom Limited in the name of M/s Kiran Enterprise instead of M/s New Kiran Enterprise.

2. Legality of the Order Dated 15.11.2018:

The order dated 15.11.2018, passed by the Superintendent of State Tax, imposed tax, interest, and penalty on the petitioner for availing wrongful ITC. The petitioner contended that the two firms, M/s Kiran Enterprise and M/s New Kiran Enterprise, although having the same PAN, had separate GST numbers and dealt in the same products. The respondent argued that the taxpayer wrongly availed ITC of ?20,03,893.80 and imposed a penalty equivalent to the tax amount along with interest under Section 74(1) of the TSGST Act.

3. Rejection of the Petition Under Section 161 of the TSGST Act:

The petitioner filed a petition under Section 161 of the TSGST Act for rectification of the error in the tax invoice, asserting that the tax invoices were erroneously prepared by Bharati Hexacom Limited. The petition was filed after the expiry of the six-month period prescribed under Section 161. The Superintendent of State Tax rejected the petition, stating that no rectification could be done after the prescribed period unless it involved a clerical or arithmetical error.

4. Applicability of Section 5 of the Limitation Act:

The petitioner argued that Section 5 of the Limitation Act should apply to condone the delay in filing the petition under Section 161 of the TSGST Act. The court examined whether the Superintendent of State Tax had the authority to condone the delay. It was held that the TSGST Act is a complete code in itself, and the Limitation Act does not apply to proceedings under the TSGST Act. The court referred to various judgments, including Mukri Gopalan vs. Cheppilat Puthanpurayil Aboobacker and M.P. Steel Corporation vs. Commissioner of Central Excise, to conclude that Section 5 of the Limitation Act does not apply to statutory authorities or tribunals unless expressly provided by the special statute.

Conclusion:

The court dismissed the writ petition, holding that the petition under Section 161 of the TSGST Act was time-barred and the Superintendent of State Tax had no authority to condone the delay. The court also held that the rectification sought was not covered by Section 161 of the TSGST Act, and the Limitation Act does not apply to proceedings under the TSGST Act. The court emphasized that when a legal action is barred by limitation, no decision can be rendered on merit.