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TMI Blog2024 (6) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... legal one and it does not involve disputed questions of fact, but only questions of law, then it should be decided by the High Court instead of dismissing the writ petition on the ground of an alternative remedy being available - It is also settled proposition of law that the High Court in its extra-ordinary and discretionary writ jurisdiction under Article 226 can examine the decision of a subordinate tribunals, bodies or officers to see whether it has acted wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuses to exercise a jurisdiction vested in them, or there is a manifest error in the face of the record. Time Limitation - HELD THAT:- It is within a period of thirty days from the appointed day, that is, 01.07.2017, an assessee like the petitioner has to comply with the provisions contained in sub-section [5] of Section 140 of the CGST Act, 2017. No provision in the CGST Act, 2017 regarding calculation of period of time has been brought to the notice of the Court by the learned counsel for the parties. The Constitution Bench, in Dilip Kumar and Company [ 2018 (7) TMI 1826 - SUPREME COURT ], has observed that an Act of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating Authority. 2. In order to appreciate the nature of assail made, it is necessary to narrate the events, in brief, leading to the passing of the Order-in-Original bearing no. 04/R-1A/CGST/2023-24 on 23.11.2023 [ the Order-in-Original , for short], at first. 3. The petitioner, a private limited company incorporated under the Companies Act, has stated that it deals in goods like GC Sheets, etc. With the advent of the GST regime with the enactment of the Central Goods and Services Tax Act, 2017 and other related Acts, the petitioner company got itself registered under the GST regime vide Registration no. 18AAICS6451J4ZU. 4. In view of the provisions incorporated for transitional arrangements for input tax credit in Section 140 of the Central Goods and Services Tax Act, 2017 [ the CGST Act, 2017 , for short], the petitioner filed the prescribed form in TRAN-1 and availed transitional credit of Rs. 1,73,35,575/-, out of which an amount of Rs. 17,78,225/- [ the total TRAN Credit , for short] was claimed under Table 7[b] of TRAN-1 on the basis of 21 nos. of invoices. Out of the total TRAN Credit amount of Rs. 17,78,225/-, an amount of Rs. 2,11,508/- [hereinafter referred to as the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee-noticee had wrongly availed credit of Central Tax to the extent of Rs. 2,11,508/- under Section 140[5] of the CGST Act, 2017 in its electronic credit ledger. It was further observed that the said amount was recoverable from the assessee-noticee along with appropriate interest and penalty in terms of the provisions of Section 73 of the CGST Act, 2017 read with Rule 121 of the CGST Rules, 2017. 6.1. With such observations, the petitioner [i.e. the assessee-noticee] was called upon to show cause, within a period of 7 [seven] days from receipt of the Show Cause Notice dated 26.09.2023, as to why [a] Central Tax amounting to Rs. 2,11,508/- only should not be demanded and recovered from the petitioner under Section 73 [1] of the Central Goods and Services Tax [CGST] Act, 2017 read with Rule 121 of the CGST Rules, 2017; [b] Applicable interest on the aforesaid amount of Central Tax should not be demanded and recovered from the petitioner under Section 73 [1] read with Section 50[3] of the Central Goods and Services Tax [CGST] Act, 2017; and [c] Penalty should not be imposed under Section 73 [9] of the Central Goods and Services Tax [CGST] Act, 2017. 6.2. The petitioner [i.e. th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Saraf, learned counsel for the petitioner; Mr. A.K. Dutta, learned Central Government Counsel [CGC] for the respondent no. 1; and Mr. S.C. Keyal, learned Standing Counsel, CGST for the respondent nos. 2 5. 8. Mr. Saraf, learned counsel for the petitioner by pointing to the discussion and finding recorded in Paragraph 7.0 of the Order-in-Original by the Adjudicating Authority, has submitted that the Adjudicating Authority while passing the Order-in-Original has misconstrued in counting the period of thirty days in that while counting the period of thirty days, he has ignored the provisions contained in Section 9 of the General Clauses Act, 1897. He has further contended that the petitioner had complied with the provisions contained in sub-section [5] of Section 140 of the CGST Act, 2017 by making the entries within the prescribed time-limit of thirty days and as such, the issuance of the Show Cause Notice on 26.09.2023 was uncalled for, though a stand was earlier taken by the petitioner in the belief that there could be delay of one day in passing the entries. It is his submission that in the absence of any specific provision in the CGST Act, 2017 as regards calculation of time-per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable in the case records including the Show Cause Notice, the Reply submitted by the petitioner to the Show Cause Notice and the impugned Order-in-Original. 12. As the submissions of learned counsel for the parties are centered around the Discussion Finding of the Adjudicating Authority recorded in Paragraph 7.0 of the Order-in- Original, it is apposite to quote Paragraph 7.0 of the Order-in-Original in its entirety, for ready reference, :- Discussion Finding 7.0 Analyzing the legal aspect of the case, it is evident that the entire issue in the Show Cause Notice is in accordance with the provisions under Section 140[5] of CGST Act, 2017, based on the audit objection during the subject - Specified Compliance on TRAN-1 conducted by CAG, as communicated in their letter GSTA III dated 29.07.2021 Notice filed TRAN-1 and availed Transitional Credit of Rs. 1,73,35,575/-. In Table 7[b] of TRAN, total credit claimed was Rs. 17,78,225/-. In the said Table, the taxpayer had declared that the invoices [1741007321 1741007322 dated 28.06.2017] against Rs. 2,11,508/- had been entered in the recipients books of accounts on 31.07.2017. This is in contravention of Section 140[5] of CGST Act, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06.2017 appointed 01.07.2017 as the date on which the provisions of Section 140 would come into force. Thus, it is not in dispute that the appointed day for the purpose of Section 140 is 01.07.2017. For compliance of the provisions of Section 140[5], a registered person like the petitioner herein has to record the Invoices, etc. like the impugned TRAN Invoices involved herein in the Books of Accounts within thirty days from the appointed day, that is, 01.07.2017. 15. It is settled that in taxing statutes, as has been observed by the Hon ble Supreme Court of India in Commissioner of Customs [Import], Mumbai vs. Dilip Kumar and Company and others [supra], it is the plain language of the provision that has to be preferred where the language is plain and is capable of one definite meaning. Where the words of the statute are clear and unambiguous, recourse cannot be had to principles of interpretation other than the literal view. The Constitution Bench in Dilip Kumar Company [supra] has observed that a taxing statute is to be strictly construed. The decisions of the Constitution Bench in Dilip Kumar and Company [supra] and Shri Vile Parle Kelvani Mandal [supra] are rendered in connectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the High Court should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the High Court under Article 226 has not pursued, would not oust the jurisdiction of the High Court and render a writ petition not maintainable . It has been held that availability of an alternative remedy does not operate as an absolute bar to the maintainability of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by the statute, is a rule of policy, convenience and discretion rather than a rule of law. It has been observed that there is a fine but real distinction between the two distinct concepts, entertainability and maintainability of a writ petition and the same is not to be lost sight of. The objection as to maintainability goes to the root of the matter and if such objection is found to be of substance, the Court would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of entertainability is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrase or clause is not specifically defined, it is legitimate and indeed mandatory to fall back on the General Clauses Act. When there is repugnancy or conflict as to the subject or context between the General Clauses Act and a statutory provision which falls for interpretation, the Court must necessary refer to the provisions of the statute. This Court is of the considered view that in the absence of any specific provision in the CGST Act, 2017 regarding calculation of time, the provisions of Section 9 of the General Clauses Act, 1897 is clearly applicable in the case in hand. 20. The provisions of the General Clauses Act, 1897, more particularly, the provisions of Section 9 thereof have contained the manner for calculation of time. Section 9 of the General Clauses Act has provided for commencement and termination of time. For ready reference, Section 9 is quoted hereinbelow :- 9. Commencement and termination of time. [1] In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word from , and, for the purpose of including the last in a series ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such a manner is to exclude the first day and to include the last day. 22.1. As regards Section 9 of the General Clauses Act, 1897, the decision in Tarun Prasad Chatterjee vs. Dinanath Sharma [supra] has observed as under : 12. Section 9 says that in any Central Act or Regulation made after the commencement of the General Clauses Act, 1897, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word from , and, for the purpose of including the last in a series of days or any period of time, to use the word to . The principle is that when a period is delimited by statute or rule, which has both a beginning and an end and the word from is used indicating the beginning, the opening day is to be excluded and if the last day is to be included the word to is to be used. In order to exclude the first day of the period, the crucial thing to be noted is whether the period of limitation is delimited by a series of days or by any fixed period. This is intended to obviate the difficulties or inconvenience that may be caused to some parties. For instance, if a policy of insurance has to be good for one day from 1st January, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o [c] of Section 138 and Section 142 [b] of the Negotiable Instruments [NI] Act is to be interpreted differently as against the word from occurring in Section 138[a] of the said Act; and that for the purposes of Section 142 [b], which prescribes to the effect that the complaint is to be filed within thirty days of the date on which the cause of action arises, the starting date on which the cause of action arises should be included for computing the period of thirty days. It has been further held that the words of , from and after may, in a given case, mean really the same thing. Quoting from Stroud s Judicial Dictionary, it has been observed that the word of is sometimes equivalent of after . 24. The above two decisions have clearly settled the position regards the manner of calculation of time vis- -vis Section 9 of the General Clauses Act, 1897. As the issue which has fallen for consideration in the fact situation obtaining the case in hand is limited to the point as to whether the petitioner-assessee had submitted the impugned TRAN Invoices within a period of thirty days from the appointed day, with no other factual disputes involved, the issue involved is clearly on a point of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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