The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.20229 of 2025 Heramba Narayan Panda … Petitioner Ms. Kananbala Roy Choudhury, Advocate -Versus- The Commissioner CGST & CX, C.R. Building, Bhawan, Rajaswa Bhubaneswar-7, Odisha and another … Opposite Parties Mr.Avinash Kedia, Junior Standing Counsel for CGST CORAM: THE HON’BLE THE CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE MURAHARI SRI RAMAN Order No. ORDER 29.07.2025 01. The matter is taken up through Hybrid mode. 2. In the instant writ petition challenge is laid to the order dated 23.04.2024 framed under Section 73 of the Central Goods and Services Act, 2017/the Odisha Goods and Services Act, 2017 (collectively be called, “GST Act”) pertaining to the tax period from April, 2018 to March, 2019 by Superintendent, Central GST & Central Excise Jajpur Range-III, Jajpur Road. 3. As it appears from the pleadings, the determination of tax liability has been made on account of erroneous availment of input tax credit of Rs.6,58,980/- after the due date of filing of returns in form GSTR-3B for the tax periods in the financial year 2018-19. Due to difficulties faced, Form GSTR-3B could not be filed within specified date under the Page 1 of 6 statute, but the tax liability has been discharged by availing the benefit of input tax credit as depicted in Form GSTR-2B. 4.
Legal Reasoning
It is submitted by Ms. Kananbala Roy Choudhury, learned counsel for the petitioner that though the demand has been raised by rejecting the claim of input tax credit in the order-in-original passed under Section 73 of the GST Act, in order to obviate irregularity and regularize such technical demand, the Finance (No.2) Act, 2024 came to rescue the tax payers like the petitioner and introduced the following amendment to Section 16 of the GST Act:- In section 16 of the Central Goods and “118. Services Tax Act, with effect from 1st day of July, 2017, after sub-section (4), the following sub-sections shall be inserted, namely:- Notwithstanding anything contained in “(5) 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”. 4.1 She brought to the notice of this Court that the said provision has been inserted with retrospective effect i.e. 01.07.2017 and by virtue of a Notification No. CBIC- 20006/20/2023-GST, dated 15.10.2024 has been issued by the Government of India, Ministry of Finance (Department of Revenue), Central Board of Indirect Taxes and Customs, in exercise of the powers conferred under the Section 148 of the Central Goods and Services Tax Act, 2017, special procedure Page 2 of 6 for rectification of order has been notified. Said notification is made applicable in respect of class of registered persons against whom any order under Section 73 or Section 74 or Section 107 or Section 108 of the said Act has been issued confirming demand for wrong availment of input tax credit, on account of contravention of provisions of sub-section (4) of Section 16. It is stated that the said person is given option to file, electronically on the common portal, within a period of six months from the date of issuance of the notification, an application for rectification of such order issued under Section 73 or Section 74 or Section 107 or Section 108 of the said Act confirming demand for wrong availment of input tax credit as aforesaid. A further clarification in Circular No.F. No. CBIC-20001/6/2024-GST, dated 15.10.2024 has been issued by the Government of India, Ministry of Finance Department of Revenue, Central Board of Indirect Taxes and Customs, GST Policy Wing, has been issued inter alia stating that “where order under Section 73 or Section 74 of the CGST Act has been issued and appeal has been filed under Section 107 of the CGST Act with the Appellate Authority but no order under Section 107 of the CGST Act has been issued by the Appellate Authority, the Appellate Authority shall take cognizance of sub-section (5) or sub section (6) of Section 16 of the CGST Act, inserted retrospectively with effect from 01.07.2017, and pass appropriate order under section 107 of the CGST Act”. Said clarification also granted opportunity to the taxpayers to file an application for rectification electronically, after login to www.gst.gov.in, Page 3 of 6 using their credentials. In order to avail the benefit, the petitioner made attempt to file a rectification application through the GST portal, but due to system error/technical glitch, the application could not be successfully uploaded. To show bona fide copy of screenshot has been enclosed to the writ petition. This led the petitioner to send the application by registered post. She has taken this Court to Annexure-3 to demonstrate that such application has been acknowledged by the Department on 14.02.2025 and submitted that the said application contained details of claims made and the amendment carried out to the statute. 4.2 She has referred to certain paragraphs of the said application for rectification to show that the input tax credit related to April 2018 to March 2019 which was the subject matter of Order-in-Original dated 23.04.2024. It is contended that though the application for rectification has been received by the opposite parties, the same is kept pending without paying any attention, as a consequence of which the petitioner is deprived of availing the benefit of the amended provision as referred to above. 4.3. To support her contention, learned counsel for the petitioner referred to following judgments of different Courts:- (i) Shiv Construction Company vs. Additional Commissioner, (2025) 27 Centax 239 (Guj.); (ii) Adhiraj Distributors Ltd. vs. Additional Commissioner of Revenue; (2025) 31 Centax 391 (Cal.); and Page 4 of 6 (iii) Med Biogenex Pvt. Ltd. vs. Superintendent, Central Goods & Services Tax & Central Excise; (2025) 28 Centax 357 (Cal.). 5. Sri Avinash Kedia, learned Junior Standing Counsel appearing for the opposite parties submitted that if the application for rectification vide Annexure-3 is pending
Decision
before the Authority concerned, the same can be disposed of in accordance with law if a direction in the nature of mandamus is issued. 6. Having heard the contentions and submissions of counsel for respective parties perusal of record shows that the petitioner has submitted an application for rectification of order-in-original dated 23.04.2024 (Annexure-1) on 14.02.2025 before the Superintendent, Central GST & Excise, Jajpur Range III. It appears that since the demand in order-in-original rests on the disallowance of input tax credit and the application for rectification, therefore, is required consideration taking cognizance of the above notification, circular coupled with the amendment of the GST Act. However, the same is subject to other conditions as is spelt out in such notification and circular. 7. Under such premises, it is felt expedient to indicate that the claim of the petitioner in the returns and denied in the order-in-original requires fresh consideration by the adjudicating authority in connection with the application for rectification subject to compliance of formalities/conditions stipulated contained in the provisions as inserted by virtue of Page 5 of 6 the Finance (No.2) Act, 2024 and Notification dated 08.10.2024 read with Circular dated 15.10.2024 as referred to above. 8. Since it is borne on record that the application for rectification is pending before the Superintendent, Central GST & Central Excise, Jajpur Range-III, this Court does not deem it fit and proper to delve into the merit of the matter and, therefore, directs the Authority concerned (opposite party No.2) to dispose of the application for rectification, stated to have been received on 14.02.2025, within a period of three weeks from the date of production of copy of this order in accordance with law by taking into consideration the decisions as cited by the learned counsel for the petitioner (supra). Needless to say, the petitioner shall be given opportunity of personal hearing before taking decision on such application for rectification. 9. With the aforesaid observation and direction, the writ petition stands disposed of. Interlocutory Applications, if any, pending shall stand disposed of accordingly. Chief Justice (Harish Tandon) Judge (M.S. Raman) Aswini Page 6 of 6 Signature Not Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-Charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jul-2025 16:20:43