My CA filed gst to a wrong state Goods and Services Tax

For FY 24-25 you can amend your GSTR-1 to mention the correct supplier GSTIN and that should be enough.

For other years, pls check whether the TS registration of SBI has taken ITC. If they have taken then ask them to reverse.

Also where is the property located? what is the PoS that you have considered for this transaction - additional facts required.

Consider for the past to apply for refund. This can be advised based on further facts.

Dear Querist,

(i) Peruse Board's Circular Nos. 183/15/2022-GST dated 27.12.22 and 193/05/2023-GST dated 17.07.23. Read full contents thoroughly.

(ii) Ministry of Railways (Railway Board) Letter No.TCR/1078/2017/25 dated 3.4.2018 (Will be helpful)

(iii) The following judgements will be very very helpful :-

(a) 2024 (86) GSTL.48 (Patna) Patna High Court in the case of Kamladityya Construction Pvt. Ltd.

(b) 2024(83) GSTL (65) (KER)

(d) 2023 (78) GSTL.65 (CAL)

(e) 2023 (72) GSTL.325 (Karnataka)

(f) 2022 (67) (GSTL.140 (Jharkhand)

Dear Shilpi Jain ji,

Greetings. Trillion thanks for taking your valuable time in responding to my query on the forum.

FY 24-25, GSTR-1 amended with correct supplier GSTIN and issue is resolved for FY 24-25.

I have asked SBI if they have taken ITC in Telangana from 22-24. SBI did not providing any clarify on this matter.

Pos is located in Tirupati, Andra Pradesh.

We have made an error in my gst filings and paid to sbi gstid in Telangana.

I hope to have answered all your questions.

Lastly, sbi is about to collect the gst error amount from 2022 to 24 (via bank lien) Rs. 4,92,883.

Question is Andra Pradesh GST board potentially can give me a notice in the future while I paid my SGST (by error) to Telangana instead of Pos in Tirupati, Andra Pradesh.

I have already paid once ( may be an error to a wrong TS state), now, SBI is taking second payment. I could potentially get a 3rd notice from AP GST board on the same issue.

I seek your expert option to protect myself and possibly get refund for the paid gst taxes to TS.

Thank you again for your insight on this matter.

Infinite gratitude!!!

If SBI has already taken credit - ask them to trfr to the correct branch.

If they have not taken credit - you have no recourse unless they have not informed you of this error in the past by when you could have rectified it. Possibility of legal proceedings against SBI can be seen. But amount is not too huge.

Dept notice issue - u want to avoid this go for refund of wrong tax by paying the right tax.

On request of one of the visitors of TMI, I am posting full text of the abovementioned case laws :-

2024 (86) G.S.T.L. 48 (Pat.)

IN THE HIGH COURT OF JUDICATURE AT PATNA

K. Vinod Chandran, C.J. and Harish Kumar, J.

KAMLADITYYA CONSTRUCTION PVT. LTD.

Versus

STATE OF BIHAR

Civil Writ Jurisdiction Case No. 13809 of 2022, decided on 22-3-2024

Input Tax Credit - Denial of - Rectification of returns - Limitation - Period 2018-21 - Petitioner-assessee while filing its GST returns, in respect of input tax credit, had inadvertently shown TDS number of awarder who deducted tax from payments due to assessee in place of awarder’s GST number - Input tax credit claim of assessee declined - Assessee sought rectification or return that it was an inadvertent human error while filing a return, but Department resisted same on the ground of limitation having set in and also digital platform on which returns, applications of refund, etc., are filed, by reason of sheer passage of time - HELD : Admittedly, denial of input tax credit was only due to wrong mentioning of GSTIN number, which was a bona fide mistake arising out of human error - Respondent-authority should facilitate opening of portal for a limited period, and assessee would be allowed to make rectification - Section 16 read with Section 39 of Central Goods and Services Tax Act, 2017 - Section 16 read with Section 39 of Bihar Goods and Services Tax Act, 2017. [paras 8 to 10]

Petition allowed in favour of assessee

CASE CITED

Mahalaxmi Infra Contract Ltd. v. GST Council — 2022 (67) G.S.T.L. 140 (Jhar.) — Referred [Paras 4, 6, 7]

REPRESENTED BY : Shri Archana Sinha @ Archana Shahi, Advocate, for the Petitioner.

S/Shri Dr. Krishna Nandan Singh, ASG, Anshuman Singh, Sr. SC, CGST&CX, Vikash Kumar, SC-11, and Parth Gaurav, Advocate, for the Respondent.

[Judgment per : K. Vinod Chandran, C.J. (Oral)]. - An inadvertent human error while filing a return, is sought to be corrected in the present writ petition; which is resisted by the Department on the ground of limitation having set in and also the digital platform on which returns, applications of refund etc., are filed, by reason of sheer passage of time, having foreclosed the remedy to rectify the error occasioned.

2. On facts it is to be noticed that the petitioner is a Private Limited Company engaged in construction work and registered as a works contractor under the Goods and Services Tax enactment. The petitioner’s concern is with the assessment year 2018-19, 2019-20 and 2020-21 when they have executed construction work in favour of the Industrial Development Authority (‘IDA’ for short) who is also subsequently impleaded as 8th respondent.

3. The petitioner had filed returns for the subject assessment years on the due date and had also discharged its tax liability. While filing the returns, as against the input tax credit, the petitioner had inadvertently shown the TDS number of the awarder who deducted tax from the payments due to the petitioner, in place of the awarder’s GST number. The mistake has been explained by the petitioner through a tabular statement in the representation made on 23-8-2022 produced in the writ petition as Annexure-1. The correct GST number of the awarder was 10AAAJI0499M1Z6 in lieu of which, the TDS number of the awarder was shown, which is 10AAAJI0499M1DF. The input tax claim for the said assessment years were declined. The very same mistake had occurred in the next year i.e. 2021-22 which was rectified within time. The petitioner claims rectification for the earlier years also.

4. Mrs. Archana Sinha, Learned Counsel for the petitioner points out that it was a human error and the same could be rectified. The Learned Counsel would also rely on a Division Bench Judgment of the High Court of Jharkhand at Ranchi in W.P. (T) Nos. 2478 of 2021. dated 18-10-2022; Mahalaxmi Infra Contract Ltd. v. Goods and Services Tax Council and Ors. [2022 (67) G.S.T.L. 140 (Jhar.) = [2022] 144 taxmann.com 138/[2023] 95 GST 280 (Jharkhand)].

5. Mr. Vikash Kumar, Learned Government Advocate and Dr. K.N. Singh, Learned ASG, relied on the limitation as per the Act for claiming refund and argued that there was an enabling provision to revise the returns but within the period stipulated; within which the petitioner did not approach the authorities.

6. The Division Bench of the Jharkhand High Court considered an almost similar matter, where the petitioner had sought for amendment to its GSTR-1. The assessee therein had sought for an amendment in GSTR-1 for the month of January, 2019, wherein, a wrong GSTIN number was mentioned in the invoices raised on respondent No. 5. By a mistake the GSTIN number was of the petitioner’s own joint venture, for reason of which input tax credit was declined to the 5th respondent. Noticing the facts especially that of the input tax credit have been reflected in the portal of the Department in favour of the 6th respondent, which was rightly not claimed by the said respondent; it was directed that correction may be facilitated which does not cause any prejudice to the revenue on grounds of monetary loss and directed the portal to be opened for a limited period with communication to the petitioner and if that is not possible for technical reasons, to enable the petitioner to make such correction through manual mode.

7. The reliance on the digital mode is for expeditious and seamless completion of proceedings and it cannot lead to foreclosing of human intervention when it is expedient and imperative. The introduction of the digital mode should not only enable due assessment and recovery of taxes, but also should ensure and facilitate the smooth business processes of the assesses. Unless the businesses are carried out, the State would not obtain its revenue and it is essential for such revenue collection that the assesses are also not put to difficulties because of technical issues of a venial nature; which if not possible of correction on the digital mode, then it should be made possible by human intervention. This is the spirit and tone of the judgment of the High Court of Jharkhand at Ranchi; which we respectfully follow.

8. Admittedly, the denial of input tax claim was only due to the wrong mentioning of GSTIN number; which has been established to be a bona fide mistake arising out of human error. The IDA who was the awarder and who deducted the tax and paid it to the department is also made a party, though subsequently, as the 8th respondent. We have heard Learned Counsel for the 8th respondent, who admits that the deductions as pointed out by the petitioner were made by the IDA from the disbursement of amounts for the works contract carried out by the petitioner and paid over to the Department, for which the petitioner could make a valid claim for input tax credit. There would be no loss caused to the State and if the refund is not effected there is every chance of the petitioner’s company closing down, considering the huge refund which would not be granted to the petitioner, putting the very business in doldrums. This is a peculiar and special circumstance in which, even if there can be no facilitation of an online rectification, it should be done physically and the amounts eligible for refund disbursed.

9. We make it clear that we have not specified the quantum of input tax credit nor does it go by the admission of the 8th respondent that deductions as pointed out by the petitioner were made from the proceeds of the contract and paid up to the State Government. The assessing officer would be entitled to look into the specific deductions claimed and verify it with the returns filed by the 8th respondent; specifically the tax deductions made at the source and enable the claim of refund which is possible under law.

10. We direct the petitioner to make a representation to the respondent authorities upon which, as directed by the High Court of Jharkhand at Ranchi, the respondent authority shall facilitate opening of the portal for a limited period, with due intimation given to the petitioner and if that is not possible allow the petitioner to make rectification on manual mode.

11. With the above directions, the writ petition stands allowed.

_______

2024 (80) G.S.T.L. 255 (All.) / (2023) 12 Centax 233 (All.)

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

Pritinker Diwaker, C.J. and Ashutosh Srivastava, J.

SHREE KRISHNA TRADERS

Versus

STATE OF U.P.

Writ Tax No. 1106 of 2023, decided on 25-9-2023

Demand - Tax or ITC involving fraud, etc. - Difference in ITC in Form No. GSTR-3B and in Form No. GSTR-2A - Financial year 2017-18 - Petitioner challenged proceedings initiated under Section 74 of UPGST Act and prayed for quashing of order passed thereunder - Petitioner placed reliance on paragraph 3(d) of Circular dated 2-1-2023 to demonstrate that where supplier had filed Form No. GSTR-1 and return in Form No. GSTR-3B for tax period, but had declared supply with wrong GSTIN of recipient in Form No. GSTR-1, difference in ITC claimed by registered person in Form No. GSTR-3B and that available in Form No. GSTR-2A was to be handled by following procedure provided in para 4 of circular - In addition, proper officer of actual recipient should intimate concerned Jurisdictional Tax Authority of registered person, whose GSTIN has been mentioned wrongly, that ITC on those transactions were required to be disallowed, if claimed by such recipients; however, allowance of ITC to actual recipient should not depend on completion of action by Tax Authority of such registered person, whose GSTIN was mentioned wrongly, and such action would be pursued as an independent action - Petitioner further submitted that impugned order though mentioned aforesaid circular, but benefit under said circular had not been extended to petitioner - Petitioner submitted that impugned order was to be set aside and matter was to be remitted to authority concerned for decision afresh, to which revenue had no objection - HELD : In view of statement made by Revenue, impugned order was to be quashed - Section 74 of Central Goods and Services Tax Act, 2017 - Section 74 of Uttar Pradesh Goods and Services Tax Act, 2017. [para 6]

Matter remanded in favour of assessee

DEPARTMENTAL CLARIFICAIONS CITED

Commissioner, State Tax, U.P. Circular No. GST/2022-23/53/Commercial Tax Lucknow, dated 2-1-2023 [Paras 3, 4]

REPRESENTED BY : Shri Aditya Pandey, Counsel, for the Petitioner.

[Order]. - Heard Sri Aditya Pandey, Learned Counsel for the petitioner and Sri Ankur Agarwal, Learned Counsel appearing for the respondent-Revenue.

2. Challenge in this writ petition is to the proceedings initiated under Section 74 of the U.P. GST/CGST Act by respondent No. 2 consequent to the notice dated 24-12-2022 for the financial year 2017-18 co-responding to tax period July, 2017 to March, 2018. Further prayer for quashing of the impugned order dated 26-7-2023 passed under Section 74 of the U.P. GST/CGST Act for the financial year 2017-18 has been sought.

3. Learned Counsel for the petitioner has invited attention of this Court to a circular dated 2-1-2023 with regard to the input tax availed in the form of GSTR-3B and has placed reliance on paragraph 3(d) to demonstrate that where the supplier has filed Form GSTR-1 as well as return in the Form of GSTR-3B for the tax period, but he has declared the supply with wrong GSTIN of the recipient in the Form of GSTR-1. In such cases, the difference in ITC claimed by the registered person in his return in Form of GSTR-3B and that available in Form GSTR-2A may be handled by following the procedure provided in para 4 of the circular. In addition, the proper officer of the actual recipient shall intimate the concerned jurisdictional tax authority of the registered person, whose GSTIN has been mentioned wrongly, that ITC on those transactions is required to be disallowed, if claimed by such recipients in their Form GSTR-3B. However, allowance of ITC to the actual recipient shall not depend on the completion of the action by the tax authority of such registered person, whose GSTIN has been mentioned wrongly, and such action will be pursued as an independent action.

4. Learned Counsel for the petitioner further submits that the authority was required to follow certain procedure as laid down in paragraph 4 of the circular. He further submits that the impugned order though mentions the aforesaid circular, but the benefit under the said circular has not been extended to the petitioner. He submits that the impugned order may be set aside and the matter may be remitted to the authority concerned for decision afresh.

5. Sri Ankur Agarwal has no objection to the aforesaid proposition and submits that the matter may be remitted to the authority concerned for decision afresh.

6. In view of the fair statement made by Sri Ankur Agarwal, the impugned order dated 26-7-2023 is, hereby, set aside. The matter is remitted back to respondent No. 2 to pass fresh orders within a period of one month from today, taking into consideration the circular as well as any other material relied upon by the petitioner in support of its case.

7. With the aforesaid observation, the writ petition is disposed of.

_______

2023 (78) G.S.T.L. 65 (Guj.) / (2023) 9 Centax 353 (Guj.)

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Biren Vaishnav and Devan M. Desai, JJ.

SOHILBHAI SDDIQBHAI AADMANI

Versus

SUPERINTENDENT OF CENTRAL GOODS & SERVICES TAX

R/Special Civil Application No. 2409 of 2023, decided on 28-7-2023

Registration - Cancellation of registration - Natural Justice - Show cause notice under Section 29 of CGST Act, 2017 read with Rule 22(1) of CGST Rules, 2017 was issued to petitioner for cancellation of registration - Said notice was without any reason and was not clear and it was cryptic - Registration of petitioner was cancelled without supplying any reason for cancellation of registration under Section 29(2)(e) ibid - HELD : Before passing order for cancellation of Registration, respondent authority had not taken into consideration reply given by petitioner to respondent authority - Opportunity of being heard in person was also not give to petitioner - Therefore, show cause notice and order cancelling registration were to be set aside and respondent authority was to be directed to restore registration of petitioner - Section 29 of Central Goods and Services Tax Act, 2017 - Section 29 of Gujarat Goods and Services Tax Act, 2017. [paras, 11, 12, 13]

Petition allowed in favour of assessee

CASES CITED

Aggrawal Dyeing and Printing Works v. State of Gujarat — 2022 (66) G.S.T.L. 348 (Guj.) — Followed [Paras 6.4, 12]

Om Trading v. State of Gujarat — (2023) 12 Centax 109 (Guj.) — Followed .. [Paras 6.4, 7, 10, 12]

Sona Metals v. State of Gujarat — 2023 (75) G.S.T.L. 428 (Guj.) = (2023) 8 Centax 147 (Guj.) — Followed [Paras 6.5, 12]

REPRESENTED BY : Shri Hiren J. Trivedi, for the Petitioner.

Shri Siddharth H. Dave, for the Respondent.

[Order per : Devan M. Desai, J. (Oral)]. - By way of this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :-

“14(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or any other writ, orders or directions to quash and set aside order dated 17-8-2022 (at Annexure-F) cancelling the registration certificate of the petitioner as well as show cause notice dated 4-8-2022 (at Annexure-C);

(B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other writ, orders or directions directing the respondents to forthwith restore the registration certificate of the petitioner;

(C) During the pendency and final disposal of the present petition YOUR LORDSHIPS may be pleased to stay operation, implementation and execution of order dated 17-8-2022 (at Annexure-F) and further be pleased to direct responds to forthwith restore the registration certificate of the petitioner;

(D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case.”

2. Since, the issue involved in the present petition is in a very narrow compass, Learned Advocates for the parties have agreed for taking up the matter for final hearing.

3. Heard Learned Advocate Mr. Hiren Trivedi for the petitioner and Mr. Siddharth Dave for the respondent.

4. Rule. Learned Advocate Mr. Siddharth Dave waives service of notice of rule for and on behalf of respondent.

5. The brief facts of the case are as under :-

5.1 The petitioner is engaged in the business of trading of ferrous, non-ferrous metal, machineries and has been registered as per the provisions of section 22 of the Central Goods and Services Tax Act, 2017 and also having Registration No. 24AFEPA87991ZQ.

5.2 On 25-7-2022, a search operation was carried out at the business place of the petitioner, no illegality was found by the respondent. However, summons under Section 70 of the said Act, came to be issued asking the petitioner to remain present on 29-7-2022. The petitioner submitted all the necessary documents. The Books of Account and other documents were returned by the respondent authority to the petitioner.

5.3 A show cause notice dated 4-8-2022 under Section 29 of the said Act read with Rule 22(1) of the Rules, came to be issued to the petitioner, inter alia, alleging that the Registration has been obtained by means of fraud, wilful misstatement or suppression of facts. The said show cause notice was silent on the aspect of reasons. The petitioner was called upon to reply on 11-8-2022. The petitioner submitted an online response on 10-8-2022 to the said notice and denied the allegations made under show cause notice.

5.4 It is the case of the petitioner that Registration was obtained in due course of law and the petitioner further alleges that the said show cause notice is not clear and it is cryptic. The petitioner also sought for personal hearing. The petitioner also filed detailed submissions on 17-8-2022 and requested to the respondent to provide all evidences, upon which, the respondent has issued the aforesaid show cause notice. However, on 17-8-2022, the respondent passed an order without providing any material and pursuant to the said order, Registration of the petitioner was cancelled ab initio w.e.f. 26-4-2018. The said order does not determine what amount to be payable by the petitioner. It is also the case of the petitioner that the order was passed without supplying any reason for cancellation of Registration under Section 29(2)(e) of the said Act.

5.5 The petitioner thereafter filed an application for revocation of cancellation of Registration on 28-8-2022 under Section 30 of the Act and Rule 23 of the Rules in Form GST REG-21. The petitioner also filed a detailed application dated 25-8-2022 along with online application.

6. Learned Advocate for the petitioner has submitted that the Act envisages the procedure for cancellation of Registration and also provides for revocation of cancellation. Learned Advocate for the petitioner has further submitted that the impugned show cause notice is cryptic, without any reason, and hence, the same is required to be quashed and set aside.

6.1 It is further submitted by the Learned Advocate for the petitioner that while issuing a show cause notice, the authority has erroneously assumed the existence of jurisdictional facts, however, no such jurisdictional facts exist.

6.2 Learned Advocate for the petitioner has submitted that the petitioner had submitted all the relevant information and documents, as sought for, by the respondent. The petitioner had also asked for the details and reasons based upon which, the impugned show cause notice dated 4-8-2022, was issued. However, the respondent authority did not provide any material and passed the impugned order dated 17-8-2022, which is bad in law.

6.3 It is submitted by the Learned Advocate for the petitioner that the application for revocation under Section 30 of the Act and Rule 23 of the Rules, though filed by the petitioner, till date, no actions have been taken by the respondent authority. It is further submitted by the Learned Advocate for the petitioner that the order impugned is in breach of principles of natural justice, and hence, it is required to be quashed and set aside.

6.4 Learned Advocate for the petitioner has further submitted that the issue involved in the present petition is no more res integra in view of the decision rendered by the Co-ordinate Bench of this Court in the case of Om Trading v. State of Gujarat in Special Civil Application No. 8990 of 2023 on 21-6-2023, wherein the Co-ordinate Bench of this Court has quashed and set aside the impugned order. Learned Advocate for the petitioner has placed on record the order dated 21-6-2023 passed in the case of Om Trading v. State of Gujarat in Special Civil Application No. 8990 of 2023 [(2023) 12 Centax 109 (Guj.)]. While deciding the said petition, reliance has been placed upon the case of Aggrawal Dyeing and Printing Works v. State of Gujarat & Ors. passed in Special Civil Application No. 18860 of 2021 decided on 24-2-2022 [2022 (66) G.S.T.L. 348 (Guj.) = [2022] 137 taxmann.com 332/92 GST 82] and allied matter.

6.5 Learned Advocate for the petitioner has also placed reliance upon the decision of this Court in the case of Sona Metals v. State of Gujarat passed in Special Civil Application No. 25221 of 2022 decided on 15-6-2023 [2023 (75) G.S.T.L. 428 (Guj.) = (2023) 8 Centax 174 (Guj.) = [2023] 152 taxmann.com 417 (Guj.)].

7. Per contra, Learned Advocate Mr. Siddharth Dave for the respondent has vehemently opposed and submitted that the petition is meritless and show cause notice and order passed thereunder, are legal and valid. It is further submitted by the Learned Advocate for the respondent that the order for cancellation of Registration dated 4-8-2022 is passed containing reasons and the same is as per the provisions of law. So far as the decision rendered in the case of Om Trading (supra), there is no much resistance from the respondent.

8. We have heard the Learned Advocates for the parties and perused the materials placed on record. It is pertinent to note that a show cause notice of cancellation of Registration dated 4-8-2022, is without any reason and it is one line show cause notice which reads as under:-

“in case, Registration has been obtained by means of fraud, wilful misstatement or suppression of facts.”

9. In our view, such show cause notice is without any basis and there is no reason assigned in arriving at the conclusion for cancellation of Registration. It seems that before the order for cancellation of Registration, the respondent authority has not taken into consideration the reply dated 17-8-2022 given by the petitioner to the respondent authority. It transpires that on the same day i.e. on 17-8-2022, the order for cancellation of Registration came to be passed. The request for an opportunity of being heard in person was not accorded to the petitioner, though asked for.

10. The Co-ordinate Bench of this Court has passed an order in the case of Om Trading (supra) and observed in para 10 as under :-

“(10) Recently, this Court has passed the order in the similar type of case of Sona Metals (supra) and observed in para 12 as under :-

“12. In similar type of cases, this Court has considered such type of show cause notice, which was issued for cancellation of registration and this Court, after considering the decision rendered in case of Aggrawal Dyeing (supra), has allowed the writ petition being Special Civil Application No. 903/2022 by an order dated 7-6-2023. This Court in the said order has observed in Paragraph Nos. 9, 10, 11, 12 and 13 as under,

“(9) The respondent authorities issued impugned show cause notice dated 6-1-2023 which reads as under :

“Form GST REG-17

[See Rule 22(1)/sub-rule (2A) of Rule 21A]

Reference Number:ZA2401230353816

Date : 6-1-2023

To

Registration Number (GSTIN/Unique ID):24HSVPS8030J1ZX

BALVINDER SINGH

JAY BAJRANG CO OP HOS SOC,

SHOP NO. 2, NR. SHASHTRI STEDIUM,

STEDIUM ROAD, Ahmedabad,

Ahmedabad, Gujarat, 380015

Show Cause Notice for Cancellation of Registration

Whereas on the basis of information which has come to my notice, it appears that your registration is liable to be cancelled for the following reasons :

1 In case, Registration has been obtained by means of fraud, wilful misstatement or suppression of facts.

You are hereby directed to furnish a reply to the notice within seven working days from the date of service of this notice.

You are hereby directed to appear before the undersigned on 13-01-2023 at 01:00 PM.

If you fail to furnish a reply within the stipulated date or fail to appear for personal hearing on the appointed date and time, the case will be decided ex parte on the basis of available records and on merits.

Please note that your registration stands suspended with effect from 6-1-2023.

Place : Gujarat

Date : 6-1-2023

Signature Not Verified

Digitally signed by

DS GOODS AND SERVICES TAX NETWORK 07

Date : 2023.01.06, 15:31:49 IST

(10) From the aforesaid show cause notice, it is clear that the respondents have not provided in details to the petitioner, how the petitioner has committed fraud, wilful misstatement or suppression of facts; while obtaining the registration, no documents were supplied to the petitioner along with the said show cause notice.

(11) This Court has considered in the similar type of case of Aggrawal Dyeing (supra) and observed in paras 13.1 and 16 as under :-

“13.1 To say the least, the respondent authority i.e. the Assistant/Deputy Commissioner, State tax Officer ought to have atleast incorporated specific details to the contents of the show cause. Any prudent person would fail to respond to such show cause notice bereft of details thereby making the mechanism of issuing show cause notice a mere formality and an eye wash.

16. When we inquired with the Learned AGP appearing for the respondents as to why such vague show cause notices and vague final orders, bereft of any material particulars therein are being passed, the reply on behalf of the respondents was quite baffling. The Learned AGP submitted that on account of technical glitches in the portal, the department is finding it very difficult to upload the show cause notice as well as the final order of cancellation of registration containing all the necessary details and information therein. According to the Learned AGP, it is in such circumstances that the show cause notices and impugned orders without any details are being forwarded to the dealers. This hardly can be a valid explanation for the purpose of issuing such vague show cause notices and vague final orders cancelling the registration.”

(12) In Special Civil Application No. 11262 of 2020, the Division Bench of this Court has considered the similar type of show cause notice and observed in paras 2, 3, 4, 5 & 6 as under :-

“2. Mr. Meena is the signatory of the show cause notice as also the impugned order of cancellation both of which are assailed in the writ petition. We have directed for the appearance of Mr. Meena upon perusal of the show cause notice dated 20-7-2020 (Annexure-H to the petition). Perusal of the same indicates that to such show cause notice no response can be given by any assessee. The show cause notice is as vague as possible and does not refer to any particular facts much less point out so as to enable the noticee to give his reply. The contents of the show cause notice dated 20-7-2020 are reproduced below :

“Form GST REG-17

[See Rule 22(1)]

Reference Number : ZA2407200794641

Date : 20-7-2020

To

INDRESH KUMAR

3, SOMNATH SHOPPING CENTER,

SMRUTI MANDIR CANAL ROAD

GHODASAR, AHMEDABAD,

Ahmedabad, Gujarat, 380050

Show Cause Notice for Cancellation of Registration

Whereas on the basis of information which has come to my notice, it appears that your registration is liable to be cancelled for the following reasons :

1. In case, Registration has been obtained by means of fraud, wilful misstatement or suppression of facts.

You are hereby directed to furnish a reply to the notice within seven working days from the date of service of this notice.

If you fail to furnish a reply within the stipulated date or fail to appear for personal hearing on the appointed date and time, the case will be decided ex parte on the basis of available records and on merits.

Place : Gujarat

Date : 20-7-2020

Prem Raj Meena

Superintendent Ghatak 18 (Ahmedabad) : Range-5 :

Division-2 : Gujarat”

3. According to Learned Counsel for the petitioner Mr. Dave, without fixing a date for hearing and without waiting for any reply to be filed by the petitioner, the cancellation order was passed on 30-7-2020 whereby registration of the petitioners with GST department was cancelled. Although the cancellation order refers to a reply submitted by the petitioner and also about personal hearing, but according to Mr. Dave neither he had submitted any reply nor afforded any opportunity of hearing. This fact is not disputed by Mr. Bhatt.

4. Mr. Bhatt, Learned Counsel for the respondent No. 2 has sought to explain that some discrepancy occurred on account of some technical glitch in the system (on-line portal). The reply filed by the respondent is on record.

5. We are not entering into the merits of the impugned order as we are convinced that the show cause notice itself cannot be sustained for the reasons already recorded above. Therefore, the cancellation of registration resulting from the said show- cause notice also cannot be sustained.

6. For the reasons recorded above, the writ petition succeeds and is allowed. The impugned show cause notice dated 20-7-2020 (Annexure-H) and the impugned cancellation order dated 30-7-2020 (Annexure-I) are hereby quashed. With respect to the other consequence that may follow, the parties would be at liberty to take appropriate steps. Mr. Bhatt made request that the Court may grant liberty to proceed afresh. We are not inclined to pass such order, but we only observe that if law permits, the respondent No. 2 may proceed afresh in accordance with law.”

(13) From the aforesaid order, it reveals that, in the said case as similar type of contentions were raised on behalf of the respondent. However, this Court has quashed and set aside the similar type of show cause notice issued to the concerned petitioner for cancellation of registration. We are of the view that the present matter is squarely covered by the aforesaid order passed by this Court, therefore, the impugned show cause notice deserves to be quashed and set aside on the similar grounds.”

11. In the present case on hand, it is clear that while issuing show cause notice for cancellation of Registration, necessary documents were not supplied and the notice is cryptic. It is also clear that while passing the impugned order for cancellation of Registration, the respondent authority has not assigned any reason and thus, the order passed by the respondent authority is not tenable at law.

12. In the aforesaid facts and circumstances of the case and considering the decisions rendered in the case of Aggrawal Dyeing (supra), Om Trading (supra) and Sona Metals (supra), the show cause notice dated 4-8-2022 as well as the order dated 17-8-2022, deserve to be quashed and set aside.

13. Accordingly, the present petition is allowed. The show cause notice dated 4-8-2022 as well as the order dated 17-8-2022, are hereby quashed and set aside. The concerned respondent is hereby directed to restore the Registration of the petitioner forthwith. Rule is made absolute to the aforesaid extent. No order as to costs.

_______

2023 (72) G.S.T.L. 325 (Kar.) / (2023) 4 Centax 179 (Kar.)

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

S.R. Krishna Kumar, J.

WIPRO LTD.

Versus

ASSISTANT COMMISSIONER OF CENTRAL TAXES, BENGALURU

Writ Petition No. 16175 of 2022 (T-RES), decided on 6-1-2023

Input Tax Credit - Rectification of Form GSTR-1 - Bona fide error - Petition sought rectification of Form GSTR-1 with respect to invoices issued to recipient wherein wrong GSTIN of recipient was incorrectly shown - Same would enable recipient to avail ITC - Error committed in instant case in mentioning GSTIN of another group company of recipient was a bona fide error and occurred in an unavoidable circumstances due to sufficient cause - C.B.I. & C. Circular No. 183/15/2022-GST provides rectification of bona fide and inadvertent mistakes committed at time of filing returns and such circular is applicable - Department should allow ITC subject to verification - Though circular was applicable to Financial years 2017-18 and 2018-19, in view of fact that error committed in Financial year 2019-20 was identical, said circular would also be applicable to Financial year 2019-20 - Section 16 of Central Goods and Services Tax Act, 2017 - Section 16 of Karnataka Goods and Services Tax Act, 2017. [para 8]

Petition disposed of in favour of assessee

DEPARTMENTAL CLARIFICATION CITED

C.B.I. & C. Circular No. 183/15/2022-GST, dated 27-12-2022......................... [Paras 3, 5, 7, 8, 9]

REPRESENTED BY : S/Shri G. Shivadass, Sr. Counsel and Prashanth Sabarish Shivadass, Advocate, for the Petitioner.

S/Shri Jeevan J. Neeralgi, Advocate, Hema Kumar, AGA and Sandeep Huilgol, Advocate, for the Respondent.

[Order]. - In this petition, petitioner has sought for the following reliefs :-

“(a) To issue order(s), directions, writ(s) in the nature of mandamus, directing respondent No. 1 to allow the petitioner access to the GST portal in order to the rectify form GSTR-1 uploaded between FY 2017-18 and 2018-19 with respect to those invoices issued to the recipient so as to enable the recipient to take credit of the tax paid by the petitioner notwithstanding the time limit prescribed in Section 16(4) of the CGST Act.

(b) In the alternative, to issue, orders(s), directions, writ(s) in the nature of mandamus, directing respondent No. 1 to respond and consider the request made by the petitioner vide letter dated 6-9-2021 enclosed in Annexure-D.

(c) To issues order(s), directions, writ(s), or any other relief as this Hon’ble Court deems it fit and proper in the facts and circumstance of the case in the interest of justice.”

2. Heard Learned Senior Counsel for the petitioner, Learned Counsel for respondents 1 to 3 - Revenue, Learned AGA for the 4th respondent as well as Learned Counsel for the 5th respondent and perused the material on record.

3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, Learned Senior Counsel for the petitioner invites my attention to the Circular bearing No. 183/15/2022-GST, dated 27-12-2022 in order to point out that the petitioner as well as the 5th respondent would be entitled to the benefit of the directions issued in the said circular with regard to the errors committed in the Invoices and the relevant forms of both the petitioner and 5th respondent and as such, the present petition deserves to be disposed of in terms of the said circular.

4. Per contra, Learned Counsel for the respondents-Revenue submits that the said circular is not applicable insofar as the petitioner and 5th respondent are concerned and that there is no merit in the petition and the same is liable to be dismissed.

5. In order to appreciate the rival contentions, it is necessary to extract the said circular, which reads as under :-

Circular No. 183/15/2022-GST

F. No. CBIC-20001/2/2022-GST

Government of India Ministry of Finance

Department of Revenue Central Board of Indirect Taxes and Customs

GST Policy Wing

New Delhi, dated the 27th December, 2022

To,

The Principal Chief Commissioners/Chief Commissioners/Principal Commissioners/Commissioners of Central Tax (All)/The Principal Directors General/Directors General (All)

Madam/Sir,

Subject : Clarification to deal with difference in Input Tax Credit (ITC) availed in FORM GSTR-3B as compared to that detailed in FORM GSTR-2A for FY 2017-18 and 2018-19 - Reg.

Section 16 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as “CGST Act”) provides for eligibility and conditions for availing Input Tax Credit (ITC). During the initial period of implementation of GST, during the financial years 2017-18 and 2018-19, in many cases, the suppliers have failed to furnish the correct details of outward supplies in their FORM GSTR-1, which has led to certain deficiencies or discrepancies in FORM GSTR-2A of their recipients. However, the concerned recipients may have availed input tax credit on the said supplies in their returns in FORM GSTR-3B. The discrepancies between the amount of ITC availed by the registered persons in their returns in FORM GSTR-3B and the amount as available in their FORM GSTR-2A are being noticed by the tax officers during proceedings such as scrutiny/audit/investigation etc. due to such credit not flowing to FORM GSTR-2A of the said registered persons. Such discrepancies are considered by the tax officers as representing ineligible ITC availed by the registered persons, and are being flagged seeking explanation from the registered persons for such discrepancies and/or for reversal of such ineligible ITC.

2. It is mentioned that FORM GSTR-2A could not be made available to the taxpayers on the common portal during the initial stages of implementation of GST. Further, restrictions regarding availment of ITC by the registered persons upto certain specified limit beyond the ITC available as per FORM GSTR- 2A were provided under Rule 36(4) of Central Goods and Services Tax Rules, 2017 (hereinafter referred to as “CGST Rules”) only with effect from 9th October 2019. However, the availability of ITC was subjected to restrictions and conditions specified in section 16 of CGST Act from 1st July, 2017 itself. In view of this, various representations have been received from the trade as well as the tax authorities, seeking clarification regarding the manner of dealing with such discrepancies between the amount of ITC availed by the registered persons in their FORM GSTR-3B and the amount as available in their FORM GSTR-2A during FY 2017-18 and FY 2018-19.

3. In order to ensure uniformity in the implementation of the provisions of the law across the field formations, the Board, in exercise of its powers conferred under Section 168(1) of the CGST Act, hereby clarifies as follows;

Sl. No.	Scenario	Clarification
a	Where the supplier has failed to file FORM GSTR-1 for a tax period but has filed the return in FORM GSTR-3B for said tax period, due to which the supplies made in the said tax period do not get reflected in FORM GSTR-2A of the recipients.	In such cases, the difference in ITC claimed by the registered person in his return in FORM GSTR-3B and that available in FORM GSTR-2A may be handled by following the procedure provided in para 4 below.
b	Where the supplier has filed FORM GSTR-1 as well as return in FORM GSTR-3B for a tax period, but has failed to report a particular supply in FORM GSTR-1, due to which the said supply does not get reflected in FORM GSTR-2A of the recipient.	In such cases, the difference in ITC claimed by the registered person in his return in FORM GSTR-3B and that available in FORM GSTR-2A may be handled by following the procedure provided in para 4 below.
c	Where supplies were made to a registered person and invoice is issued as per Rule 46 of CGST Rules containing GSTIN of the recipient, but supplier has wrongly reported the said supply as B2C supply, instead of B2B supply, in his FORM GSTR-1, due to which the said supply does not get reflected in FORM GSTR-2A of the said registered person.	In such cases, the difference in ITC claimed by the registered person in his return in FORM GSTR-3B and that available in FORM GSTR-2A may be handled by following the procedure provided in para 4 below.
d	Where the supplier has filed FORM GSTR-1 as well as return in FORM GSTR-3B for a tax period, but he has declared the supply with wrong GSTIN of the recipient in FORM GSTR-1.	In such cases, the difference in ITC claimed by the registered person in his return in FORM GSTR-3B and that available in FORM GSTR-2A may be handled by following the procedure provided in para 4 below. In addition, the proper officer of the actual recipient shall intimate the concerned jurisdictional tax authority of the registered person, whose GSTIN has been mentioned wrongly, that ITC on those transactions is required to be disallowed, if claimed by such recipients in their FORM GSTR-3B. However, allowance of ITC to the actual recipient shall not depend on the completion of the action by the tax authority of such registered person, whose GSTIN has been mentioned wrongly, and such action will be pursued as an independent action.

4. The proper officer shall first seek the details from the registered person regarding all the invoices on which ITC has been availed by the registered person in his FORM GSTR 3B but which are not reflecting in his FORM GSTR 2A. He shall then ascertain fulfilment of the following conditions of Section 16 of CGST Act in respect of the input tax credit availed on such invoices by the said registered person :

(i) that he is in possession of a tax invoice or debit note issued by the supplier or such other tax paying documents;

(ii) that he has received the goods or services or both;

(iii) that he has made payment for the amount towards the value of supply, along with tax payable thereon, to the supplier.

Besides, the proper officer shall also check whether any reversal of input tax credit is required to be made in accordance with Section 17 or Section 18 of CGST Act and also whether the said input tax credit has been availed within the time period specified under sub-section (4) of Section 16 of CGST Act.

4.1 In order to verify the condition of clause (c) of sub-section (2) of section 16 of CGST Act that tax on the said supply has been paid by the supplier, the following action may be taken by the proper officer :

4.1.1 In case, where difference between the ITC claimed in FORM GSTR-3B and that available in FORM GSTR 2A of the registered person in respect of a supplier for the said financial year exceeds Rs. 5 lakh, the proper officer shall ask the registered person to produce a certificate for the concerned supplier from the Chartered Accountant (CA) or the Cost Accountant (CMA), certifying that supplies in respect of the said invoices of supplier have actually been made by the supplier to the said registered person and the tax on such supplies has been paid by the said supplier in his return in FORM GSTR 3B. Certificate issued by CA or CMA shall contain UDIN. UDIN of the certificate issued by CAs can be verified from ICAI website https://udin.icai.org/search-udin and that issued by CMAs can be verified from ICMAI website https://eicmai.in/udin/VerifyUDIN.aspx.

4.1.2 In cases, where difference between the ITC claimed in FORM GSTR-3B and that available in FORM GSTR 2A of the registered person in respect of a supplier for the said financial year is upto Rs. 5 lakh, the proper officer shall ask the claimant to produce a certificate from the concerned supplier to the effect that said supplies have actually been made by him to the said registered person and the tax on said supplies has been paid by the said supplier in his return in FORM GSTR 3B.

4.2 However, it may be noted that for the period FY 2017-18, as per proviso to Section 16(4) of CGST Act, the aforesaid relaxations shall not be applicable to the claim of ITC made in the FORM GSTR-3B return filed after the due date of furnishing return for the month of September, 2018 till the due date of furnishing return for March, 2019, if supplier had not furnished details of the said supply in his FORM GSTR-1 till the due date of furnishing FORM GSTR-1 for the month of March, 2019.

5. It may also be noted that the clarifications given hereunder are case specific and are applicable to the bona fide errors committed in reporting during FY 2017-18 and 2018-19. Further, these guidelines are clarificatory in nature and may be applied as per the actual facts and circumstances of each case and shall not be used in the interpretation of the provisions of law.

6. These instructions will apply only to the ongoing proceedings in scrutiny/audit/investigation, etc. for FY 2017-18 and 2018-19 and not to the completed proceedings. However, these instructions will apply in those cases for FY 2017-18 and 2018-19 where any adjudication or appeal proceedings are still pending.

7. Difficulty, if any, in the implementation of the above instructions may please be brought to the notice of the Board. Hindi version would follow.

Sd/-

Sanjay Mangal

Principal Commissioner (GST)

6. As rightly contended by the Learned Senior Counsel for the petitioner, a perusal of the Invoices at Annexure-C will indicate that while supplies are made by the petitioner to the 5th respondent - M/s. ABB Global Industries and Services Private Limited, the GSTIN Number mentioned in the Invoices has been incorrectly shown as that of ABB India Limited, which is a completely different and independent juristic and legal entity from the 5th respondent herein. Under these circumstances, having regard to the language employed in the circular, which contemplates rectification of the bona fide and inadvertent mistakes committed by the persons at the time of filing of Forms and submitting Returns, in the peculiar and special facts and circumstances of the instant case, I am of the considered opinion that the error committed by the petitioner in showing the wrong GSTIN number in the Invoices which was carried forward in the relevant Forms as that of ABB India Limited instead of the 5th respondent i.e., M/s. ABB Global Industries and Services Private Limited, is clearly a bona fide error, which has occurred due to bona fide reasons, unavoidable circumstances, sufficient cause and consequently, the aforesaid circular would be directly and squarely applicable to the facts of the instant case.

7. A perusal of the aforesaid circular also indicates that the procedure to be followed in such cases has been prescribed at paragraph-4. In addition to the circular, the petitioner has also filed an affidavit satisfying the conditions stipulated in paragraph-4.1.1 of the circular, enclosing the details of the Invoices issued by the petitioner to the 5th respondent. The 5th respondent has filed statement of objections setting out the facts admitting, accepting and re-enforcing the claim of the petitioner with regard to the discrepancies/mismatch in mentioning of the GSTIN Number.

8. Under these circumstances, I am of the considered opinion that it would be just and proper to dispose of this petition directing the respondents 1 to 3 - Revenue to follow the procedure prescribed in the circular and apply the said circular to the facts of the instant case of the petitioner, 5th respondent and their transactions for the years 2017-18, 2018-19 and 2019-20. It is also necessary to state that though the circular refers only to the years 2017-18 and 2018-19, since there are identical errors committed by the petitioner not only in respect of the assessment years 2017-18 and 2018-19 but also in relation to the assessment year 2019-20 also, I am of the view that by adopting a justice oriented approach, the petitioner would be entitled to the benefit of the circular for the year 2019-20 also.

9. In the result, I pass the following :-

ORDER

(i) Petition is hereby disposed of directing the respondents 1 to 3 to take necessary steps in relation to the petitioner and 5th respondent for the assessment years 2017-18, 2018-19 and 2019-20 in terms of the Circular No. bearing No. 183/15/2022-GST, dated 27-12-2022.

(ii) The respondents 1 to 3 are hereby directed to consider the request made by the petitioner vide letter at Annexure-D, dated 6-9-2021 and proceed further in accordance with law and in terms of the Circular dated 27-12-2022 as expeditiously as possible.