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TMI Blog2023 (12) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... against an order refusing to grant interim orders, requested this Court to hear the writ petition as well as questions of law are involved in the writ petition and may not even require an affidavit to be filed by the respondent. Mr. T.M. Siddiqui, learned Additional Government Pleader appearing for the respondent submitted that one opportunity may be granted to the respondents to file their affidavit-in- opposition which request was granted by order dated 23.06.2023 and after the affidavit-in-opposition was filed by the respondent, the appeal as well as the writ petition were heard and are now disposed of by this common judgment and order. 3. The appellant filed the writ petition challenging an order-in-appeal dated 04.01.2023 and sought for a consequential direction upon the respondent to refund the tax amounting to Rs .28,63,680/- which is alleged to have been recovered by the appellant in excess of 10% of disputed tax amount and to prohibit the respondents from taking further cohesive action against the appellant. The order impugned in the writ petition was passed under Section 107 of the Central Goods and Services Tax Act, 2017 and West Bengal Goods and Services Tax Act, 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advocate for the appellant and Mr. T.M. Siddiqui, learned Additional Government Pleader assisted by Mr. T. Chakraborty and Mr. S Sanyal for the respondent department. 6. The appellant's case is that they had submitted the returns in GSTR-3B for the period from November, 2018 to March, 209 on 20.10.2019 which is admittedly beyond the due date of submission of the return for the month of September, 2019. The department's contention is that the returns having been filed beyond the statutory time limit the appellant becomes ineligible for Input Tax Credit and consequently he has to reverse the credit taken and having wilfully mis-stated the particulars and availed the benefit they are liable to pay penalty. The contention of the appellant is that Input Tax Credit is not taken through the return but it is taken through the books of account immediately on receipt of goods and services in terms of first proviso to Section 16(2) of the GST Act. Therefore, it is submitted that the time limit under Section 16(4) cannot supersede or override the scheme of the statute as operation of Section 16(4) makes the non-obstante provision namely Section 16(2) meaningless. In other words, it is conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the operation of Section 16(3) or Section 16(4) and they are not contradicting, rather they all being to restrict the provisions, are basically complementing each other and are limiting the scope and operation of Section 16(4). Further, it is submitted that the legislative intent is not to make Section 16(4) otiose by applying Section 16(2) of the Act. Conjoint reading of Section 16(2)(d) and Section 16(4) make it clear that the entitlement to the credit of any Input Tax in respect of any supply of goods or services or both arises after filing of return under Section 39 of the Act. This condition is further qualified by imposing a time limit under Section 16(4). Admittedly, in the case of the appellant the returns were filed well beyond the period stipulated under Section 16(4). The imposition of penalty was well justified as the appellant had committed fraud by making a false and dishonest representation in GSTR-3B return for the aforementioned period and claimed ineligible ITC and thereby reducing the net tax liability. 8. This being a fraudulent claim, penalty is liable to be imposed and rightly imposed. In support of his contention, learned Additional Government Pleader place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter pointing out about how a taxation statute has to be interpreted, the Hon'ble Supreme Court proceeded to examine the provisions of the concern statute and held that input tax credit is in the nature of benefit/concession extended to the dealers under the statutory scheme. The concession can be received by the beneficiary only as per the scheme of the statute. Reference was made to the decision in Godrej and Boyce Manufacturing Company Private Limited Versus CST (1992) 3 SCC 624 wherein the court held that the rule making authority can provide curtailment while extending a concession. Reference was made to the decision in India Agencies Versus CCT (2005) 2 SCC 129 wherein it was held that when the rules prescribes the procedure to be followed and the documents to be produced for claiming concessional rate of tax under Section 8(4) of the Central Sales Tax Act, the dealer has to strictly follow the procedure and produce a relevant material required under the rule. Reference was also made to the decision in the case of State of Karnataka Versus M.K. Agro Tech Private Limited (2017) 16 SCC 210 wherein the Hon'ble Supreme Court held that it is a settled proposition of law that taxin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 19(11) neither can be said to be arbitrary nor can be said to violate the right guaranteed to the dealer Under Article 19(1) (g) of the Constitution. We thus do not find any infirmity in the judgment of the High Court upholding the validity of Section 19(11) of the Act. Both the issues are answered accordingly. 10. In the ALD Automotive Private Limited an alternate submission was made on behalf of the assessee that Section 19(11) of the Tamil Nadu Value Added Tax Act cannot be held to be mandatory and it is only a directory provision non-compliance with which cannot be a ground of denial of Input Tax Credit to the appellant therein. After noting the conditions enumerated in Section 19 of the said Act, it was held that the conditions under which the concession and benefit is given is always to be strictly construed and if the contention that there is no time period for claiming Input Tax Credit is accepted, the provision becomes too flexible and gives rise to a large number of difficulties including difficulty in verification of claim of Input Tax Credit. Further it was held that the taxing statutes contain self-contained scheme of levy, computation and collection of taxes. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vail Section 16(4) of the APGST/CGST Act, 2017. 12. The argument advanced before us by the learned Advocate for the appellant were identical to that of the arguments which were placed by the petitioners/assessee in the said case and the same was rejected, in our view rightly on the ground that Section 16(2) prescribes, the eligibility criteria which is mandatory and in the absence of fulfillment of the eligibility criteria the dealer will not be entitled to claim ITC. We are in the respectful agreement with the view expressed. The contention that non obstante clause in the Sub Section(2) of Section 16 overrides the other provisions namely Section 16(4) was canvassed before the court which was also rightly rejected after taking note of the various decisions as to how the non obstante clause should be interpreted and rightly held that Section 16(2) does not appear to be a provision which allows Input Tax Credit, rather Section 16(1) is the enabling provision and Section 16(2) restricts the credit which is otherwise allowed to the dealers who satisfied the condition prescribed the interpretation given by the court that the stipulation in Section 16(2) is the restrictive provision i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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