Bidyut Autotech Private Limited and another Vs Assistant Commissioner of State Tax (Calcutta High Court)
The writ petition challenges an order dated February 6, 2025, passed by the appellate authority under Section 107 of the West Bengal Goods & Services Tax Act, 2017 (the Act). The petitioners, dealers of motor vehicles, purchased vehicles during 2017-18, paying GST along with CESS, which was reflected in Form GSTR-2A. While the petitioners also charged CESS to their customers, they initially did not disclose the collected CESS in Form GSTR-3B, believing their accumulated CESS credits from inward supplies offset any liability. Upon review by their Chartered Accountant, the petitioners disclosed the total CESS in the annual return (Form GSTR-9), indicating no actual liability.
A show-cause notice alleged non-payment of CESS totaling ₹44,71,625 and, due to no response, an order under Section 74 held the petitioners liable for ₹41,31,946 in taxes plus interest and penalties totaling ₹1,28,26,999. The petitioners appealed, asserting there was no willful misstatement or fraud, that the mistake in GSTR-3B was rectified in GSTR-9, and that they were entitled to input tax credit (ITC) on the CESS paid on inward supplies.
The appellate authority accepted that there was no suppression or fraud and converted proceedings under Section 74 to Section 73 but did not consider the effect of Form GSTR-9 and rejected the claim for ITC on inward CESS. The petitioners argued that the annual return filed on August 28, 2023, predated the amendment to Section 44(2) by the Finance Act, 2023, and should be considered. The State argued the annual return could not be relied upon due to late filing.
