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TMI Blog2023 (11) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... for such availment enumerated in the statute. One of the preconditions for the purchasing dealer to claim input tax credit under section 16 of the CGST Act is that he must produce the tax invoice issued by the supplying dealer. Coming to the facts of the cases, the appellants failed to produce the tax invoices despite sufficient opportunities extended. The appellants were issued a show cause notice under section 73(1) of the CGST/SGST Act. The appellants were called for a personal hearing. They did not appear for personal hearing either - The appellants did not discharge the said burden. They failed to produce any evidence to prove that they are entitled to the benefit of input tax credit. That apart, the appellants rushed to the writ court without exhausting the alternative appellate remedy. Constitutional validity of Section 16(2)(c) of the CGST Act and Rule 36(4) of the CGST Rules - HELD THAT:- It is now well settled that any tax legislation may not be easily interfered with. The court must show judicial restraint to interfere with tax legislation unless it is shown and proved that such taxing statute is manifestly unjust or glaringly unconstitutional. Taxing statutes cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and the SGST Act because of the difference in GSTR-2A and GSTR-3B returns. Consequently, the Assessing Authority levied interest, imposed penalty and initiated recovery proceedings against them. The appellants approached the writ court challenging the assessment order as well as the constitutional validity of Section 16(2)(c) of the CGST Act and Rule 36(4) of the CGST Rules. As per the impugned judgments, the learned single Judge dismissed the writ petitions. They are under challenge in these Writ Appeals. 4. We have heard Sri. A. Krishnan, the learned counsel for the appellants, Sri. Sreelal N. Warrier, the learned standing counsel for the Central GST and Sri. V.K. Shamsudheen, the learned Senior Government Pleader. 5. It is settled that input tax credit is in the nature of a benefit/concession and not a right extended to the dealer under the statutory scheme. The said benefit can accrue to the assessee only as per the scheme of the statute { See ALD Automotive Private Ltd. v. Commercial Tax Officer and Others [(2019) 13 SCC 225]}. It is equally settled that the rule-making authority can provide restrictions in extending the concession ( Godrej and Boyce Manufacturing Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person shall be entitled to take credit upon receipt of the last lot or instalment: Provided further that where a recipient fails to pay to the supplier of goods or services or both, other than the supplies on which tax is payable on reverse charge basis, the amount towards the value of supply along with tax payable thereon within a period of one hundred and eighty days from the date of issue of invoice by the supplier, an amount equal to the input tax credit availed by the recipient shall be paid by him along with interest payable under section 50, in such manner as may be prescribed: Provided also that the recipient shall be entitled to avail of the credit of input tax on payment made by him of the amount towards the value of supply of goods or services or both along with tax payable thereon...... The above provision makes it clear that the existence of a tax invoice or debit note issued by the supplying dealer, proof of receipt of goods or services or both, and the tax charged in respect of such supply having been actually paid to the Government, either in cash or through utilization of input tax credit admissible in respect of the said supply are the conditions to be satisfied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37. 7. Sub Rule (4) makes it clear that the purchasing dealer will be eligible for input credits as against purchases from the registered selling dealers to the extent of 20% (later reduced to 5%) of the details of the invoices uploaded by the selling dealer with respect to the cases where he did not fully upload the details of the sales effected to the purchasing dealer. 8. One of the preconditions for the purchasing dealer to claim input tax credit under section 16 of the CGST Act is that he must produce the tax invoice issued by the supplying dealer. Coming to the facts of the cases, the appellants failed to produce the tax invoices despite sufficient opportunities extended. The appellants were issued a show cause notice under section 73(1) of the CGST/SGST Act. The appellants were called for a personal hearing. They did not appear for personal hearing either. As per section 155 of the CGST Act, the burden is on the dealer who claims the benefit of input tax credit to prove that he is eligible for such benefit. The appellants did not discharge the said burden. They failed to produce any evidence to prove that they are entitled to the benefit of input tax credit. That apart, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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