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TMI Blog2024 (12) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... to issue a Writ of Mandamus of a writ in alun the nature of Mandamus or any other writ, order or direction under Article 226 of the Constitution of India to declare that the ITC of Rs. 9,83,53,032 availed by the Petitioner in the month of July 2021 on Tax Invoice No. VI2124000047 dated 23.07.2021 and VI2124000052 dated 29.07.2021 as validly availed in terms of the provisions of 9 Section 76 of the Act; B. Your Lordships be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or any other writ, order or direction under Article 226 of the Constitution of India to declare that the amount of Rs. 9,83,53,032 deposited by the Petitioner vide DRC-03 on 13.01.2013 is not payable in law and is therefore collected without the authority of law, in violation of Article 265 of the Constitution of India and contrary to the provisions of Section 16 read with Section 41 and Section 73/74 of the CGST Act; C. Your Lordships be pleased to issue a writ of Mandamus, or a writ in the nature of Mandamus, or any other appropriate writ, order or direction, directing the Respondents, their servants, agents or representatives to forthwith restore the ITC of Rs. 9,83,53,032 in ECL of Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the DGGI and was again questioned about the refund claim filed by the petitioner and ITC availed by the petitioner on the said Tax Invoices pertaining to transfer of leasehold rights. 6.7. It is the case of the petitioner that the respondent No. 4 insisted that the petitioner had wrongly availed the ITC on transfer of leasehold rights and the petitioner was not eligible in terms of provisions of Section 17 (5) of the Central Goods and Services Tax Act, 2017 (for short 'the CGST Act') and threatened the authorised person of the petitioner with dire consequences in case the ITC was not reversed. 6.8. It is also the case of the petitioner that due to aggressive posture adopted by the respondent No. 4, the petitioner reluctantly agreed and from the premises of DGGI, in the midst of ongoing summons proceedings, reversed the refund claim on the GST portal by reversing the ITC in Form DRC-03. The petitioner also received a notice dated 09.02.2023 from respondent No. 3-Superintendent of CGST and Central Excise, Range II, Division VII, Navsari for payment of interest on the ITC reversed by the petitioner on 13.01.2023. The petitioner filed reply dated 14.03.2023 on 15.03.2023 explaining t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the petitioner was compelled to reverse the ITC and the second time when the petitioner filed the refund claim on 30th June, 2023. 7.2. It was submitted that even if the Appeal filed by the petitioner is allowed, the petitioner would get the refund of only Rs. 9,83,53,032/- whereas, the amount already reversed by the petitioner on 13th January, 2023 under compulsion of the respondent No. 4 would never be restored. It was therefore submitted that the respondent No. 4 should be directed to restore the ITC which was reversed by the petitioner on 13th January, 2023. 7.3. It was further submitted that whether the petitioner is entitled to the refund claimed or whether the petitioner was justified in claiming the ITC on transfer of leasehold rights, the respondents have never initiated any proceedings either under the provisions of Section 73 or Section 74 of the CGST Act. 7.4. It was therefore submitted that the petitioner could not have been compelled to reverse the ITC without there being any adjudication as to whether the ITC claimed by the petitioner in the Electronic Credit Ledger was justified for transfer of the leasehold rights under the provisions of the Act. 7.5. Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, explicitly incorporated in the Blocked Credit section 17 (5) of the CGST Act, 2017, which appears to be intended that ITC shall not be available in respect of services pertaining to land. Further, as per section 17 (5) of the CGST Act, 2017, ITC shall not be available in respect of goods or services or both received by a taxable person for construction of an immovable property (other than plant and machinery) on his own account including when such goods or services or both are used in the course of furtherance of business," and in reply of question no. 9, the Petitioner has stated that "As I had put earlier during the course of inspection and our discussion that as per our interpretation of the act, that the said ITC should be eligible, however, as per the discussion with the officers on the inspection of DGGI, Vadodara regional office on 13.01.2023, in response to summons dated 12.01.2023, we hereby submit that we have reversed the ITC availed on the basis of invoices raised by M/s. Sun Pharmaceuticals Industries Ltd amounting to Rs. 9.85 cr vide DRC 03 dated 13.01.2023 as gesture to show bona fide and cooperative measures to the opinion of the officers, that the said ITC sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, requested to provide some time to them to consult their consultant so that they can decide their further course of action. Para 11-It is submitted that vide letter dated 14.03.2023, the Petitioner submitted that "At that time, I had indicated that we have reversed the Input tax credit availed on the basis of invoices raised by M/s Sun Pharmaceuticals Industries Limited amounting to Rs. 9,83,53,032/- vide DRC-03 dated 13 January 2023 purely as a gesture of goodwill and to show our cooperation with the ongoing investigations. Further, I had requested your good office to provide us some time to consult with out tax consultants so that we can decide out future course of action. Our action of reversing aforesaid ITC through DRC-03 was only as a gesture to show our bona fide and co-operation in the investigations being carried out, same was ought not to be considered in the form of agreement to the view of ineligibility of ITC as expressed by the officers. Further, upon returning to office and discussing the issue with our tax consultants/ lawyers and re-examining the provisions of the law, I believe that HMIPL is entitled for claim of ITC of the GST charged to it towards transfer o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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