Dealer cannot be compelled to carry forward ITC to GST regime instead of refund

Easwaran Brothers India Private Limited Vs Assistant Commissioner (ST) (FAC) (Madras High Court)

The Hon’ble Madras High Court in Easwaran Brothers India Private Limited v. The Assistant Commissioner (ST) (FAC) [W.P. No. 33593, 33048 and 33593 of 2022 dated December 15, 2022] has held that dealers cannot be compelled to carry forward Input Tax Credit (“ITC”) from extant regime to the Goods and Services Tax (“GST”) regime if the dealer chooses to avail refund instead.

Facts:

Easwaran Brothers India Private Limited (“the Petitioner”) is a registered dealer. When the GST regime came into force on and from July 1, 2017 and the Tamil Nadu Value Added Tax Act, 2006 (“the TNVAT Act”) stood subsumed, dealers who had ITC had the option of either seeking refund or carrying forward the ITC to GST regime. The Petitioner opted for refund instead of carrying forward the ITC, but due some technical glitch in the common portal.

Subsequently, a provisional refund order in FORM-P dated October 06, 2022 (“the Impugned Order”) was passed by the Revenue Department (“the Respondent”) making it clear that the Petitioner is entitled to refund of INR 13,36,741/- qua ITC for assessment year 2017-18; but the Petitioner is yet to receive refund. Further, the Impugned Order passed inter alia requesting the Petitioner to opt for carrying forward the ITC to GST regime instead of availing the refund of the ITC.

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