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TMI Blog2024 (11) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate, Shri P.M.Choudhary Senior Advocate with Shri Anand Prabhawalkar, Advocate For the Respondent No.1, 2 and 3 : Ms. Khushbu Verma - Advocate For the Respondent No.4. : Shri Sudeep Bhargava -Advocate ORDER Matter is heard finally with the consent of parties. This order shall govern disposal of aforesaid Writ Petition Nos. 2164/2024, 3757/2023, 1280/2024, 1859/2024, 2133/2024, 2964/2024, 3551/2024, 3664/2024, 13142/2024, 14857/2024, 14975/2024. Regard being had to the similitude of the controversy involved in the aforesaid petitions, they have been heard analogously and disposed of by this singular order. For the sake of convenience, facts of W.P. No.2164/2024 are taken. This petition under Article 226 of the Constitution of India has been filed challenging the order dated 27.07.2023(Annexure P-5) passed by respondent No.3. 2. Brief facts giving rise to the present petition are that petitioner is a Proprietorship Firm registered under the provisions of Central Goods and Services Tax Act, 2017 (referred to as the 'CGST Act' hereinafter) having registration no. 23AGDPM2307D1Z4. During the financial year 2018-19, petitioner has duly filed GST returns for the mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and to bring out a nationwide taxation system. (iv) Petitioner had already filed the returns, though with the late fees and interest applicable on it. Despite that credit of ITC is not allowed, thus petitioner is being penalized twice as he had paid the late fees alongwith tax and interest and is now again saddled with inadmissibility of input tax credit. (v) Learned counsel drawing the attention of this Court to subsection (1) and (2) of Section 16 of the CGST Act submits that subsection( 1) and (2) clearly stipulates that the input tax credit is allowed on fulfillment of certain conditions, which the petitioner had already complied with. Hence refusal to allow the claim under the garb of Section 16(4) of CGST Act is contrary to the aforesaid subsections. (vi) Learned counsel raising the ground of legitimate exception submits that petitioner expects that the Government will notify the time limit for furnishing return in FORM GSTR-3B in due course of time and, therefore, the petitioner had reason to believe that once the time limit for filing of the return under Section 39(1) i.e. FORM GSTR-3 is notified, that date will be the date of availing of input tax credit as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the CGST Act 8. Under the GST Act, assessee's are entitled for availing the Input Tax Credit(ITC) on purchase of good and services. ITC can be used to reduce the amount of GST to be paid to the Government when the assessee sales any item. Under the GST Act, the term ITC is defined as: "input tax credit means the credit of input tax." 9. Before adverting to the merits of the case, it would be apt to reproduce the relevant provisions of law governing the present matter. Section 16 GST Act Eligibility and conditions for taking ITC. (i) Every registered person shall, subject to such conditions and restrictions as may be prescribed and in the manner specified in Section 49, is entitled to take ITC charged on any supply of goods or services or both to him which are used or intended to be used in the course of furtherance of his business and the said amount shall be credited to the electric credit ledger of such person. (ii) Notwithstanding anything contained in this section, no registered person shall be entitled to the credit of any input tax in respect of any supply of goods or services or both to him unless: (a) He is in possession of a tax invoice or debit note is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is earlier. 12. The Central Government has resolved controversy by way of amendment in Section 16 of the GST Act with the aid of Section 118 of the Finance Act, 2024(referred to as the Act, 2024). Recently, the Central Government by way of notification dated15.10.2024 has further clarified the issues regarding implementation of provisions of sub-section(5) and sub-section(6)in Section 16 of the Act. Section 118 of the Act of 2024 by which Section 16 of the GST Act is being amended reads as under: Section 118. In Section 16 of the Central Goods and Services Tax Act, with effect from 1st day of July, 2017, after subsection( 4), the following sub-sections shall be inserted, namely - "(5) Notwithstanding anything contained in sub-section(4), in respect of an invoice or debit note for supply of goods or services or both pertaining to the Financial Years 2017-18, 2018-19, 2019-20 and 2020-21, the registered person shall be entitled to take input tax credit in any return under section 39 which is filed up to the thirtieth day of November, 2021. (6) Where registration of a registered person is cancelled under section 29 and subsequently, the cancellation of registration is revok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te provision and to use the words of the Hon'ble Apex Court, this right can be earned by the beneficiary only as per scheme of that statute. However, imposition of a time limit through Section 16(4) would supersede or override this scheme of the statute operation of Section 16(4) makes the non-obstante section 16(2) meaningless; Section 16(2) has overriding effect on Section 16(4) and Section 16(2) has been drafted in a manner which shows clear legislative intent that it is not subject to Section 16(4). 17. The GST laws do not have any provision and scope for filing a revised return, taxpayers are extremely cautious to file the monthly return for March and may like to wait for a longer time to reconcile the entries and ensure that there is no unnecessary mismatch between the GST returns and the financial records. This exercise is generally taken when the financial audit goes on. They even pay huge late fees to delay the filing of such return and such late fees are paid on subsequent returns also as GST laws does not permit filing of monthly return in FORM 3B if return for earlier month has not been filed. Allowing a taxpayer to file returns with payment of late fees and then d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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