2022 (6) TMI 1077 - HC - GST

Maintainability of petition - availability of alternative remedy - Demand of an amount being the difference in the ITC availed in Form GSTR-3B which was auto populated in Form GSTR-2A - HELD THAT - The GST enactments and the rules made thereunder are a complete code by themselves. The provisions in the GST Rules have been well thought of and have been drafted using the vast experience gained under the erstwhile MODVAT Rules under the erstwhile Central Excise Rules, 1944 and its subsequent avatars under the Cenvat Credit Rules, 2001, 2002 and later under 2004 and under the various VAT enactments and the VAT Rules made thereunder - Most of the difficulties faced in the implementation of GST law was are on account of the technical glitches as returns and forms are system driven and returns are filed electronically. The information contained therein are supposed to get captured and auto populated at the end customer/recipient of goods or services. As far as the supplier of Goods and Services is concerned, the supplier is required to file a monthly return Form GSTR-1 under Rule 59(1) of the State CGST Rule, 2017. This form is to be uploaded electronically by the due date on the common portal by the supplier either directly or through Facilitation Centre notified by the Commissioner - If there is any variance between the information furnished in Form GSTR-2A, Form GSTR-4A or Form GSTR-6A furnished by the supplier and the credit tax availed in Form GSTR-2, the recipient is required to furnish details of inward supplies added, corrected, deleted by the recipient in Form GSTR-2, Form GSTR-4 and Form GSTR-6, in Form GSTR-1A through the common portal. In case, corrections and amendments in Form GSTR-1A of the recipient is not accepted by the supplier in its Form GSTR-1, the question of availing input tax credit on the strength of invoices alone is not enough. In case, the information is not corrected by the supplier in GSTR-1, the input tax credit availed by the recipient is liable to be paid back - Though some of the circulars and clarifications issued in the context of exports have been cited by the learned counsel for the petitioner, they are not relevant in the context of availing input tax credit at the threshold stage. Further, the Court have recognized few exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. None of these exceptions are attracted in the facts of the present case. Admittedly, the petitioner has an alternate remedy by way of an appeal before the Appellate Commissioner under Section 107 of the CGST Act, 2007. Therefore, this writ petition cannot be entertained ignoring the statutory dispensation - Petition dismissed.

Summary

Issues Involved:

1. Discrepancy between ITC claimed in GSTR-2B and information in GSTR-2A.
2. Validity of assessment orders based on discrepancies.
3. Applicability of circulars and press releases for ITC claims.
4. Availability and appropriateness of alternative remedy under Section 107 of CGST Act.

Issue-wise Detailed Analysis:

1. Discrepancy between ITC claimed in GSTR-2B and information in GSTR-2A:

The petitioner challenged the assessment orders for the years 2017-18 and 2018-19 due to differences in the Input Tax Credit (ITC) claimed in GSTR-2B and the information captured in GSTR-2A compared to GSTR-1 of the supplier. The demand was calculated as Rs.8,21,123/- and Rs.3,53,519/- for the respective years. The petitioner argued that discrepancies arose due to suppliers not properly uploading information in their GSTR-1.

2. Validity of assessment orders based on discrepancies:

The petitioner's counsel cited various circulars and press releases, including Circular No.125/44/2019-GST, which emphasized that the proper officer should not insist on invoice submission if details are present in GSTR-2A. The petitioner argued that ITC availed on the strength of invoices issued by suppliers should not be denied due to suppliers' errors in uploading data. The department, however, maintained that the demand was based on proper show cause notice and that ITC claimed in GSTR-3B is provisional, subject to reconciliation with GSTR-2A data.

3. Applicability of circulars and press releases for ITC claims:

The petitioner relied on several clarifications and circulars, including those dated 04.09.2018, 18.10.2018, and 18.11.2019, which addressed issues related to ITC claims and discrepancies between GSTR forms. The court noted that the GST enactments and rules are a complete code, designed to prevent revenue leakage, and discrepancies must be resolved as per prescribed procedures. The court also referenced the Supreme Court decision in Commissioner of Central Excise Vs. M/s.Ratan Melting and Wire Industries, stating that circulars are not binding on the court.

4. Availability and appropriateness of alternative remedy under Section 107 of CGST Act:

The respondent argued that the petitioner had an alternate remedy under Section 107 of the CGST Act and should approach the Appellate Commissioner. The court agreed, stating that the petitioner should exhaust the statutory appeal process. The court highlighted that exceptions to the rule of alternative remedy were not applicable in this case and emphasized that the petitioner should file an appeal within thirty days.

Conclusion:

The court dismissed the writ petitions, providing liberty to the petitioner to file a statutory appeal before the Appellate Commissioner within thirty days. The court concluded that the petitioner must follow the statutory dispensation and that the writ petitions could not be entertained under Article 226 of the Constitution. Consequently, the connected miscellaneous petitions were also closed.