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TMI Blog2025 (1) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... development which has taken place after passing the impugned order by the respondent authority, the matter is required to be remanded back to the Adjudicating Authority to pass a fresh denovo order considering the provisions of Section 16 (5) which has come into operation w.e.f. 01.07.2017. Petition allowed by way of remand. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE D.N. RAY Appearance: For the Petitioner(s) No. 1: Darshan R Patel (8486). For the Respondent(s) No. 1: Mr Utkarsh R Sharma (6157). ORAL ORDER (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned advocate Mr. Darshan Patel for the petitioner and learned Senior Standing Counsel Mr. Utkarsh Sharma for the respondent. 2. By this petition unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n violation of Section 16 (4) of CGST Act. 4. The petitioner being aggrieved preferred the appeal before the Commissioner (Appeals). The Commissioner (Appeals) by the impugned order dated 12.08.2024 dismissed the appeal in view of clear violation of the provisions of Section 16 (4) of the CGST Act. 5. Learned advocate Mr. Darshan Patel for the petitioner submitted that after the Commissioner (Appeals) passed the order dated 12.08.2024, there is an amendment by insertion of sub-section (5) in Section 16 by Finance (No. 2) Act, 2024 dated 16.08.2024 w.e.f. 01.07.2017 which provides that 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 Financi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is earlier. 10. The Commissioner (Appeals) while dismissing the appeal filed by the petitioner has observed as under:- 5.7 The appellant have contended various aspects to the instant dispute, which is being discussed hereinafter. They contended that the ITC availment first happens in the records maintained by the taxpayer and the return filing process is merely a reflection of the said ITC for credit in the electronic credit ledger to allow it for utilisation/ refund. Thus it can be said that as long as they have availed the ITC in the books of accounts (which will be a record u/s 35 as far as ITC availment is concerned) before the cut-off date prescribed under Section 16 (4), the same can be said to be in order. I observe that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment to Rule 61 (5). Notwithstanding Hon'ble Gujarat High Court judgement dated 24.6.2019 in the case of AAP Co. Vs UoI (SCA No. 18962 of 2018) holding that GSTR-3B is not a valid return under Section 39 to follow time-limit for claiming ITC of 2017-18, the Union Government has retrospectively amended CGST Rules 2017 w.e.f. 01.7.2017 vide Notification No. 49/2019-CT dated 09.10.2019 by substituting sub-rule (5) of Rule 61 to maintain that either of GSTR-3 or GSTR-3B is a valid return for the purpose of Section 39 read with said rule. Validity of this retrospective amendment vide Notification No. 49/2019-CT has also been discussed at length by the Hon'ble Apex Court on 28.10.2021 in CA 6520/2021 titled Uol Vs. Bharti Airtel Ltd. Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars 2017-18, 2018-19, 2019-20 and 2020-21, the registered personshall be entitled to take input tax credit in any return under section 39 which is filed upto the thirtieth day of November, 2021. 12. Considering the above amendment in CGST Act by insertion of Section 16 (5) of the Act, the alleged default committed by the petitioners of not complying with Section 16 (4) of the Act would now no longer exists subject to verification of the facts by the Adjudicating Authority. 13. In view of such subsequent development which has taken place after passing the impugned order by the respondent authority, the matter is required to be remanded back to the Adjudicating Authority to pass a fresh denovo order considering the provisions of Section 16 (5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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