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TMI Blog2024 (10) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... /- which incidentally was the approximate ITC amount availed, for the relevant period. It is also noticed that in somewhat situation a Coordinate Bench of this Court in the case of M/S. LARSEN TOUBRO LIMITED VERSUS STATE OF WEST BENGAL ORS [ 2022 (12) TMI 1496 - CALCUTTA HIGH COURT] had concluded that unless a registered tax payer avails and utilized ITC, interest cannot be levied. In this case it is noticed that the petitioner had debited its electronic credit ledger to reverse the ITC availed. A perusal of Section 49(4) of the said Act would clarify that the amount available in the electronic credit ledger, may be used for making payment towards output tax under the Act. Thus, from the tenor of Sections 50(1) proviso, read with Section 49, read with Rule 86 and 87 of the said Rules, it would be apparent that payment of interest and penalty can only be made by debiting the electronic cash ledger and not from the electronic credit ledger. The payment made on 20th March 2021 in form GST DRC-03 is by debit of the electronic credit ledger - unless the ITC is both availed and utilized, interest cannot be levied on the registered tax payer. The order passed by the proper officer dated 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as saddled with interest and penalty as appearing in the said order. Being aggrieved, the petitioner had preferred an appeal under Section 107 of the said Act. The appellate authority by its order dated 13th May, 2022 having found that the proper officer acted as per the provisions of law in imposing interest and penalty did not interfere with the order passed by the proper officer. 6. Mr. Mazumder, learned advocate appearing on behalf of the petitioner at the very outset submits that immediately upon receipt of the notice in Form GST DRC-01A, the petitioner had acted on the basis thereof and had voluntarily debited its electronic credit ledger by filing Form GST DRC-03. According to the petitioner there had been mistake in filling up of GSTR-09, which resulted in wrongful availment of ITC. The aforesaid debit of its electronic credit ledger by filing Form GST DRC-03 was in addition to the tax paid by the petitioner in terms of Section 39 of the said Act, while filing the regular returns which according to the petitioner had been filed in October, 2019 itself. 7. It is submitted that once, the petitioner s electronic credit ledger was debited by filing Form GST DRC-03, the matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onic cash ledger. In other words, in all cases in which proceeding has not commenced, only ITC shall be reversed by debiting the credit ledger, if credit is available. Admittedly, in this case before initiation of proceeding under Section 73 of the said Act, on the receipt of notice in GST DRC-01A the petitioner had debited its credit ledger consequently interest could not have been levied on the petitioner nor could have the respondents called upon the petitioner to make payment of interest by debiting its cash ledger. 12. Per contra, Mr. Chakraborty, learned advocate representing the State respondents has taken me to the notice issued in Form GSTDRC-01A. By referring to the said notice, it is submitted that not only the tax but the component of interest and penalty are also identified. The petitioner, however, chose not to debit its electronic cash ledger to make payment of interest and penalty. Only the tax component was paid by debiting its credit ledger. It is submitted that since, the petitioner choose not to pay interest and penalty by debiting its cash ledger, the notice was issued under Section 73 of the said Act. There is no irregularity in issuing the same. Even before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d section had been amended by Finance Act of 2022 with retrospective effect from 1st July 2017. Having regard to the aforesaid, I find that the aforesaid Section is applicable to the facts of this case. 15. From a perusal of the materials on record it would appear that the petitioners had enough credit in its electronic credit ledger, a sum in excess of Rs.5,00,000/- which incidentally was the approximate ITC amount availed, for the relevant period. It is also noticed that in somewhat situation a Coordinate Bench of this Court in the case of M/s Larsen Turbo v. State of West Bengal Ors., in WPA 2654 of 2020 on 13th December 2022 had concluded that unless a registered tax payer avails and utilized ITC, interest cannot be levied. Similar views had been taken by the Hon ble High Courts of Madras, Punjab and Haryana in the cases of Grundfos Pumps India (P) Ltd. (supra), Deepak Sales Corporation., (supra) and Ranjan Sarkar (supra), respectively. 16. However, before I proceed further I find that Mr. Chakraborty, by placing reliance on the provisions of Rule 142 of the said Rules and Section 73 of the said Act has attempted to claim that issuance of a notice in form DRC-01A, constitutes i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. At the first blush, I was prompted to consider the matter from an angle that the adjudication order issued by the proper officer proceeds on the basis of an admission. However, upon perusal of the entire order it would appear that the proper officer had proceeded to adjudicate and determine the liability of the petitioner. Having regard thereto, it cannot be said that the petitioner is a estopped from challenging the order passed by the proper officer or by the appellate authority. The appellate authority also did not proceed on such basis. The respondents thus, cannot be permitted to raised such a plea for the first time before this Court. As such, I do not find any irregularity in the petitioner challenging the order passed by the proper officer and the appellate authority in the writ petition. The above argument made by the respondents appear to be one, made in desperation. The order dated 8th April, 2021, passed under Section 73(9) of the said Act, in my view is contrary to the statutory provisions. The appellate authority did not consider the aforesaid aspect at all and by a cryptic order had returned the finding that the proper officer had acted as per the provisions of l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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