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TMI Blog2024 (10) TMI 1117X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners shall file necessary application in accordance with law for claiming the ITC and/or refund of the amount reimbursed to the respondent Nos.3 and 4 and other amounts refundable and the same shall be duly considered by the respondent Nos.1 and 2 within a period of eight weeks from the date of the order. Petition disposed off. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA ANDHONOURABLE MR. JUSTICE NIRAL R. MEHTA FOR THE PETITIONER: MR SAURABH SOPARKAR, LD.SR.ADV WITH MR.ANAND NANAVATI AND MR.KAUSTUBH SRIVASTAVA FOR NANAVATI ASSOCIATES(1375) FOR THE RESPONDENTS: MR SHALIN MEHTA, LD.SR.ADV WITH ADITI S RAOL (8128) MR RAJ TANNA, AGP MR CHIRAYU A MEHTA (3256) ORAL ORDER (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned Senior Advocate Mr. Saurabh Soparkar with learned advocate Mr. Kunal Nanavati and learned advocate Mr. Kaustubh Srivastava for Nanavati Associates for the petitioners, learned advocate Mr. Chirayu Mehta for the respondent No.1, learned Assistant Government Pleader Mr. Raj Tanna for the respondent No.2, learned Senior Advocate Mr. Shalin Mehta with learned advocate Ms. Aditi Raol for the respondent Nos.3 and 4. 2. Learned Senior Advocate Mr. Saurabh Sop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ab Haryana High Court restraining the respondent No.3-Airport Authority of India from levying of any tax under the GST Act. Similarly, the Madras High Court, Madurai Bench also on 16.02.2018 passed an interim- order granting injunction against the respondent No.3 from collecting GST on the supply of the services to the petitioner No.1. 4.5. By order dated 23rd February, 2018 also, the Madras High Court passed an injunction restraining the Airport Authority of India from collecting GST on supply of service to the petitioner No.1. 4.6. By order dated 01.03.2018, the Kerala High Court also passed an interim-order injuncting respondent No.3-Airport Authority of India from collecting GST from the petitioners. 4.7. The Hon ble Apex Court dismissed the petition on 23.04.2018 filed by the Airport Authority challenging the order passed by the High Court of the Punjab and Haryana on the ground that the same has been filed against the interim-order. 4.8. Considering the above orders, this Court (Coram: Hon ble Mr. Justice Akil Kureshi and Hon ble Mr. Justice B.N.Karia As Their Lordships Were Then) passed the following order on 10.05.2018 : 1. The petitioners have challenged the demand raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and the same would prevent the duty free shops in India from competing with DFSS at international airports elsewhere in the world. This will also hamper and prejudicially affect our foreign trade, and augmentation and conservation of foreign exchange. In our opinion, this will also negate the intent and purpose of Article 286 of the Constitution of India. 35. We are bound by the judgment of Constitution Bench in J. V. Gokal Co. (supra) which was followed by the Supreme Court in the matter of duty free shops in Hotel Ashoka (supra), and also in the matter of Kiran Spinning Mills (supra). 36. In the backdrop of above, we are of the view that impugned order and the impugned show cause notice dated 10th January 2019 are manifestly arbitrary and in the teeth of the purpose and intent of Article 286 of the Constitution of India and the provisions of the GST law read with the Customs Act, 1962. 37. Hence, writ petition bearing W.P. No.1511 of 2019 succeeds. The impugned order dated 10th January 2019 and the impugned show cause notices are quashed and set aside. So far as Writ Petition No. 1535 of 2019 is concerned, we refrain from issuing any declaration since the Petitioner is held to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... followed the decision of the Bombay High Court and Kerala High Court and held that the respondent No.4 is not liable to charge GST upon the concession fees to be paid by the petitioners in view of the fact that the same would be a revenue neutral exercise as the petitioner is entitled to the refund on the Input Tax Credit in view of the Zero Rated Supply as per Section 16 of the IGST Act. 5.5. Learned Senior Advocate Mr. Saurabh Soparkar referred to the following observation of the Hon ble Madras High Court, Madurai Bench : 5. I am of the view that the very same approach can be adopted in the case on hand also. Of course, a slight tweaking will be required. This is because the fourth respondent had paid GST to the first respondent for the period from 01.01.2018 to 31.03.2018. In this view of the matter, this writ petition is disposed of in the following terms: a) In as much as the petitioner would be entitled to refund of ITC on the GST paid by them, I am of the view that no purpose will be served by asking the petitioner to pay GST and thereafter claim refund. Therefore, for the period prior to 28.02.2021, the petitioner need not pay any GST to the fourth respondent. b) Since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such tax was indeed correctly paid to the credit of the Government for the supply of such service to the petitioner. iii. As the issue is revenue neutral for the period between July 2019 and March 2021 during the subsistence of interim order when neither GST was collected nor paid, the first respondent and the jurisdictional officer of the first respondent shall not charge GST from the third respondent for such supply of service to the petitioner. alone for renting of duty free shops within the Chennai Airport to the petitioner. iv. It is made clear that going forward, there shall be no further concession either to the petitioner or to the third respondent from paying GST for the supply of service commencing from 1st April, 2021. 5.7. Learned Senior Advocate Mr. Saurabh Soparkar also referred to the decision of the Hon ble Punjab and Haryana High Court pronounced on 25th January, 2024 in case of the petitioner No.1 wherein, after considering all the aforesaid Orders, the Hon ble Division Bench of the Punjab and Haryana High Court held as under : 26. In view of the discussions made hereinabove, it is directed that the petitioner will reimburse the sum of Rs. 3,83,38,993/- to the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to the GST. 6. On the other hand, learned Senior Advocate Mr. Shalin Mehta for the respondent Nos.3 and 4 submitted that the respondent Nos.3 and 4 are indemnified by the payment of Rs. 6,11,084/- as per the statement made by the learned Senior Advocate Mr. Saurabh Soparkar for the petitioners at bar and no purpose would be served for going into the larger issue of merits of the matter as to whether the GST is leviable upon the services provided by the respondent Nos.3 and 4 under the provisions of the GST Act. 7.1. Learned advocate Mr. Chirayu Mehta for the respondent Nos.1 and 2 invited the attention of the Court to the following averments made in the affidavit-in-reply filed on behalf of the respondent No.1 pursuant to the order passed by this Court on 28.07.2022 : 4. The levy of tax for a supply of service being the leasing of space (the Duty-Free Shop (DFS)) is situated well within the territory of India, which thus entails levy of GST on the said services. 5. In the humble submission, non-levy of GST on the concession agreement in lieu of rent paid by the petitioner to respondent no.3 and the petitioner be eligible (without admitting) to claim / appropriate / adjust the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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