Ganesh Kumar Gopalan Vs State Tax Officer (Kerala High Court)
Summary: The Kerala High Court considered a writ petition filed by Ganesh Kumar Gopalan, proprietor of M/s. G S Traders, challenging an assessment order passed under Section 73 of the CGST Act. One of the findings in the assessment order was that the petitioner was not entitled to input tax credit for the period from October 2017 to March 2018 because the returns had not been filed within the time prescribed under Section 16(4) of the CGST Act.
The petitioner had initially filed an appeal against the assessment order but subsequently withdrew it, as evidenced by the appellate order. According to the petitioner, the appeal was withdrawn because of the subsequent introduction of Section 16(5) of the CGST Act, which enabled taxpayers to claim input tax credit in specified circumstances notwithstanding the time limit contained in Section 16(4). The petitioner contended that the returns relevant to the disputed input tax credit had been filed before the cut-off date contemplated under Section 16(5).
The Court noted that Section 16(5) provides that, in respect of invoices or debit notes pertaining to Financial Years 2017-18, 2018-19, 2019-20 and 2020-21, a registered person would be entitled to take input tax credit in a return under Section 39 filed up to 30th November 2021, notwithstanding Section 16(4).
On examination of the assessment order, the Court found that the petitioner had submitted the returns for the period from October 2017 to March 2018 during the period from 31.01.2018 to 14.07.2020. Accordingly, all the returns had been submitted within the time stipulated in Section 16(5). The Court therefore found merit in the petitioner’s submission and held that the petitioner was entitled to the input tax credit.
The High Court consequently disposed of the writ petition by quashing the assessment order to the extent that it declined input tax credit on the ground of non-filing of returns within the period prescribed under Section 16(4). The first respondent was directed to reconsider the matter to the extent of the input tax credit for that reason and grant the benefit under Section 16(5) of the CGST Act if the petitioner was otherwise entitled to it.
The Court further clarified that the petitioner’s withdrawal of the appeal against the assessment order would not preclude the petitioner from pursuing the contention based on Section 16(5).
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
This writ petition is submitted by the petitioner being aggrieved by Ext.P1 order of assessment passed under Section 73 of the CGST Act. One of the findings in the Ext.P1 order is that the petitioner is not entitled to input tax credit pertaining to the months from October 2017 to March 2018, as the petitioner failed to submit the returns within the period stipulated under Section 16(4). Even though the petitioner submitted an appeal against Ext.P1 order, the same was withdrawn by the petitioner, as evidenced by Ext.P6 order.
2. According to the petitioner, the appeal was withdrawn in view of the introduction of Section 16(5) of the Act that enables the petitioner to claim the input tax credit pertaining to the relevant months, as the petitioner submitted the returns before the cut off date contemplated under the said provision. As per Section 16(5) of the Act, in case the taxpayer is furnishing the returns on or before 30th November 2021, such taxpayer would be entitled to claim the input tax credit irrespective of the time limit contemplated under Section 16(4).
3. After considering all relevant aspects, I find merits in the said submission, as it is discernible from Ext.P1 order that the petitioner had submitted the returns for the period from October 2017 to March 2018, during the period from 31.01.2018 to 14.07.2020. Thus, it is evident that all the returns were submitted within the time stipulated in Section 16(5). Therefore, the petitioner is entitled to the input tax credit.
In such circumstances, this writ petition is disposed of, quashing Ext.P1 to the extent it declines the input tax credit on the reason of non-filing of the returns within the period stipulated in Section 16(4). The 1st respondent shall reconsider the matter, to the extent of input tax credit for the reason mentioned above, and grant the benefit under Section 16(5) of the CGST Act to the petitioner in case the petitioner is otherwise entitled to it. It is clarified that the fact that the petitioner had withdrawn an appeal submitted against Ext.P1 as evidenced by Ext.P6 will not preclude the petitioner from pursuing the contention of Section 16(5).
