The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(T) No. 5938 of 2023 --------- Singh Construction Company, (A Proprietorship Firm), holding Goods its and Service Tax Registration No.20AEKPS7618J1Z8, having Registered Office at Sadar Thana, Chatra, Chatra, Jharkhand-834001, through its Proprietor, namely, Nirmal Singh, aged about 58 years, son of Sardar Balbir Singh, resident of 4028, Phase-II, Urban Estate, Patiala, P.O. and P.S. Patiala, District-Patiala, Punjab, PIN-147002. … … Petitioner Versus 1. The State of Jharkhand through the Commissioner of State Tax, having its office at Utpad Bhawav, Kanke Road, P.O. Ranchi University, P.S. Gonda, District Ranchi, Jharkhand PIN834008. 2. The Additional Commissioner of State Tax, Hazaribagh Division, Hazaribagh, having its office at beside Civil Court Campus, Hazaribagh, P.O. and P.S. Hazaribagh, District Hazaribagh, PIN-825301 (Jharkhand). 3. The Joint Commissioner of State Tax, Hazaribagh Division, Hazaribagh, having its office at beside Civil Court Campus, Hazaribagh, P.O. and P.S. Hazaribagh, District Hazaribagh, PIN-825301 (Jharkhand). 4. The Deputy Commissioner of State Tax, Hazaribagh Circle, Hazaribagh, having its office at beside Civil Court Campus, Hazaribagh, P.O. and P.S. Hazaribagh, District Hazaribagh, PIN-825301 (Jharkhand). 5. The Assistant Commissioner of State Tax, Hazaribagh Circle, Hazaribagh, having its office at beside Civil Court Campus, Hazaribagh, P.O. and P.S. Hazaribagh, District Hazaribagh, PIN-825301 (Jharkhand). 6. The State Tax Officer, Hazaribagh Circle, Hazaribagh, having its office at Hazaribagh Aanchal, Hazaribagh, District Hazaribagh, Jharkhand PIN- 825301 (Jharkhand). … …. Respondents CORAM:
Legal Reasoning
--------- HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE ARUN KUMAR RAI For the Petitioner For the Respondents ---------- : Mr. Sumeet Gadodia, Advocate Mrs. Shilpi Sandil Gadodia, Advocate Mr. Ranjeet Kushwaha, Advocate : Mr. Aditya Kumar, AC to Sr. SC-I ----------- 05/Dated: 5th September, 2024 1. The instant writ petition has been filed under Article 226 of the Constitution of India seeking therein following reliefs: “(i) For issuance of an appropriate writ/order/direction for declaring Section 16(4) of Jharkhand Goods and Services Tax Act, 2017 (Annexure-9) as ultra vires, in as much as it seeks to impose a time limit for availment of Input Tax Credit being violative of Article 14, Article 19(1)(g) and Article 300A of the Constitution of India and also being violative of the basic structure of the Jharkhand Goods and Services Tax Act, 2017. 1 (ii) For issuance of an appropriate writ/order/direction for declaring the amendment carried under Rule 61(5) of the Jharkhand Goods and inserted vide Clause 4(a) of Notification Services Rules, 2017 No.49/2019 dated 27th December, 2019, issued by Respondent No.1-State Tax Department (Annexure-12) as ultra vires, under which GSTR-3B has been declared to be a valid return under Section 29 of the Jharkhand from Goods and Services Rules, 2017 with retrospective effect 01.07.2017, as being wholly violative of Article 14, Article 19(1)(g) and Article 300A of the Constitution of India as it has an effect of interfering with the vested right of the Petitioner to avail Input Tax Credit. (iii) For issuance of further appropriate writ/order/direction, including Writ of Certiorari for quashing/setting aside the impugned Order dated 15 July 2023, communicated to Petition on 04 August, 2023, (Annexure- 8) passed by the Respondent No.5 in violation of Article 14, Article 19(1)(g) and Article 300A of the Constitution of India, 1950 to infringe the rights of the petitioner by disallowing the input tax credit under Section 16(4) read with Rules 36 of Central/Jharkhand Goods and Services Tax Act/Rules, 2017 after conducted the inspection under Section 67 read with Rule 139 of The Central/Jharkhand Goods and Service Tax Act/Rules, 2017 pertaining to financial year 2018-19, creating impugned demand amounting to Rs.3,58,44,769.99/- (Tax, interest amounting to Rs.2,31,21,349.72/- and penalty amounting to Rs.35,84,476.99/- aggregate to the tune of Rs.6,25,50,596.66/- and pertaining to financial year 2019-20, creating impugned demand amounting to Rs. 28,24,731.57/- and penalty amounting to Rs.6,08,060.29/- aggregate to the tune of Rs.95,13,394.73/- is against the principle of natural justice and law of equity, whereas the bund of writ petitions are pending for judicial review for the vires of Section 16(4) of Central/State Goods and Services Tax Act, 2017 before this Hon’ble Court.” to Rs.60,80,602.87/- (Tax), interest amounting 2. The matter was heard on 27.08.2024. 3. Mr. Sumeet Gadodia, learned counsel for the petitioner has submitted that in view of the provision of Section 118 of the Finance Act, 2024, the matter needs to be decided afresh and as such, the order impugned may be quashed and set aside so that mater be decided, on remand, afresh. 4. Learned counsel for the respondent-State took time to seek instructions. 5. The matter was listed on 04th September, 2024. 6. Mr. Ashok Kumar Yadav, learned Sr. SC-I appearing for the respondent- State has sought for further adjournment by making prayer to list this matter today, i.e., 05.09.2024 so as to seek instructions with respect to the issue as to whether the order impugned dated 15.07.2023 is to be quashed for the purpose of deciding the issue afresh in view of the provision of Section 118 of the Finance Act, 2024. 7. Learned State counsel, on instructions, has submitted that in view of the provision as inserted in the Finance Act, 2024 as under Section 118 thereof, the matter needs to be adjudicated afresh. 2 8. We have heard the learned counsel for the parties and have considered the demand raised on account of the violation of Section 16(4) of the JGST Act as would be evident from paragraph-5 of the impugned order. 9. It is evident that the Gazette Notification has been issued on 16.08.2024 by inserting sub-section (5) under Section 16 of the CGST Act w.e.f. 1st day of July, 2017 after sub-section (4). For ready reference, the said insertion is being referred as under: “118. In section 16 of the Central Goods and Services Tax Act, with effect from the 1st day of July, 2017, after sub-section (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 upto the thirtieth day of November, 2021. …” 10. It is evident that the insertion of the aforesaid provision has been made effective from the 1st day of July, 2017, whereby and whereunder, it has been provided 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 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 upto the thirtieth day of November, 2021”. 11. It is, thus, evident that the decision which has been taken as impugned in the present writ petition was in absence of the consideration by following the stipulation made in sub-section (5) of Section 16 which has been made effective w.e.f. 1st day of July, 2017. 12. The State, due to the aforesaid reason, is consenting for adjudication of the issue afresh. 13. Considering the implication of insertion of sub-section (5) under Section 16 of the CGST Act, this Court is of the view that the matter needs to be considered afresh. 14. Accordingly, the impugned order dated 15.07.2023 is quashed and set aside. 3 15. The matter is remitted before the authority to pass afresh order taking into consideration the implication of sub-section (5) of Section 16 of the CGST Act. 16. Let the decision be taken, in accordance with law, within a period of two months from the date of receipt/production of copy of this order. 17. It is made clear that this Court has not entered into the merit of the case. Saurabh/- (Sujit Narayan Prasad, A.C.J.) (Arun Kumar Rai, J.) 4