ENTERTAINMENT OF WRIT PETITION AGAINST THE ORDER PASSED BY THE ORIGINAL AUTHORITY ON ONE DEFECT AMONG SIX DEFECTS POINTED OUT IN THE SHOT CAUSE NOTICE

[Mr. M. GOVINDARAJAN]

In TVL. SHIVAM STEELS (REPRESENTED BY ITS PROPRIETOR MR. GYAN MANCHANDA) VERSUS ASSISTANT COMMISSIONER (ST) (FAC) , HOSUR - 2024 (6) TMI 1381 - MADRAS HIGH COURT, the petitioner was issued with a show cause notice alleging six defects, 12.01.2024. The petitioner filed reply to the said show cause notice during the month of February 2024. The impugned order was passed on 12.03.2024 and raised the demand of tax of Rs.25,88,468/- each under CGST and SGST along with interest and penalty.

The petitioner filed a writ petition before the High Court challenging the order on the third defect. The petitioner submitted the following before the High Court-

• The defect no.3 pertains to reversal of Input Tax Credit in respect of credit notes issued by the supplier.
• The value of supply would not include a discount only if the conditions prescribed in clauses (a) or (b) of sub-section (3) are satisfied.
• The case at hand does not fall within the scope of sub-section (3).
• The credit notes issued by the supplier were financial credit notes.
• The recipient / tax payer is not liable to reverse Input Tax Credit to the extent of the value of credit notes.
• The discount offered by the supplier was erroneously construed as a service provided by the purchaser to the supplier.

Therefore, the petitioner prayed the High Court to quash the order passed by the respondent and quash the demand of tax of Rs.25,88,468/- each under CGST and SGST along with interest and penalty as the same being arbitrary, without the authority of law, passed in violation of the principles of natural justice and beyond the scope of the show cause notice.

The Revenue submitted the following-

• The discount offered by the supplier was erroneously construed as a service provided by the purchaser to the supplier.
• The impugned order calls for interference on this issue.
• The petitioner has filed this writ petition only insofar as defect no.3 is concerned.
• As regards other defects, he submits that the petitioner has carried the matter in appeal before the appellate authority which is not correct.
• The petitioner should be relegated to the statutory remedy.
• Section 15(3) of the Act provides for a reduction in the value of supply, on account of a discount, if such discount has been duly recorded in the invoice issued in respect of such supply or if such discount is established in terms of an agreement entered into either before or at the time of supply although the supply may be subsequent to such agreement.
• In this case neither of Section 15(3) was satisfied and therefore the supplier would be liable to pay tax on the full value of supply.

The High Court considered the submissions of the petitioner and the Revenue. The High Court analyzed the conclusion of the Revenue in defect No. 3. The High Court observed that the assessing officer concluded that the taxable person is providing a service to the supplier while taking the benefit of a discount by facilitating an increase in the volume of sales of such supplier. The High Court was of the view that the said conclusion is erroneous and contrary to the tenets of GST laws. Therefore, the High Court wanted to consider this issue.

The High Court, at first, has taken the contention of the Revenue on to the jurisdictional issue. The High Court observed that the exercise of jurisdiction under Article 226 is discretionary and subject to self-imposed fetters. The contention of the Revenue is that the petitioner could not approach the High Court when there is an alternative remedy. The High Court observed that the existence of an alternative remedy is a material consideration but not a bar to the exercise of jurisdiction. The petitioner preferred an appeal against the five issues that requires reappraisal of the evidence. The issue challenged by the petitioner is purely a legal issue. Therefore, the High Court held that notwithstanding the fact that the petitioner had approached the appellate authority in respect of other issues entertained the petition as having jurisdiction.

Therefore, the High Court set aside the order of Authority dated 12.03.2024 insofar as the defect No.3 relating to reversal of input tax credit.  The High Court remanded the matter in respect of defect No. 3 to the original authority to decide the issue within 3 months from the date of receipt of the copy of the order, after giving a reasonable opportunity of being heard to the petitioner.