Umen Chandra Roy Vs Union of India (Calcutta High Court)
Summary: The Calcutta High Court, Circuit Bench at Jalpaiguri, considered a writ petition concerning the petitioner’s claim to avail Input Tax Credit under Section 39 of the Central Goods and Services Tax Act, 2017 read with Sub-Section 5 to Section 16. The petitioner had filed the relevant return up to November 30, 2021, which the Court noted was within the statutory cut-off contemplated under Section 16(5). The petitioner thereafter filed a rectification application on January 12, 2026 concerning the benefit of the ITC facility.
The judgment records that the petitioner’s rectification application was rejected by the revenue authority by order dated April 8, 2026. The rejection proceeded on the basis that the application had not been filed within the stipulated period referred to in the departmental circular/notification dated April 8, 2024 read with the circular dated October 15, 2024. The judgment itself records the applicable period in paragraph 3 as “six weeks”; however, the subsequent correction order dated August 21, 2026 expressly states that this expression was to be corrected to “six months” and that “communication” was to be corrected as “circular”.
The petitioner argued that the prescribed period could be extended because Sub-Section 5 to Section 16 did not itself prescribe a time limit for filing the rectification application. The revenue, on the other hand, submitted that the order in original dated March 6, 2024 had been served upon the petitioner on the same day by post and therefore disputed statements made in the writ petition.
After considering the rival submissions and the materials on record, the Court held that Sub-Section 5 to Section 16 gives the assessee a substantive right to prefer a rectification application to avail the Input Tax Credit facility and that the substantive provision does not specify a time within which an assessee must apply. The Court referred to the departmental circulars/notifications and held that, in the absence of a statutory time frame under Section 16(5), the period prescribed by executive instruments could not prevail over or override the substantive statutory provision. The Court characterised the relevant departmental timelines as guidelines that were directory in nature and not mandatory. TaxGuru has also published the Circular No. 237/31/2024-GST and material relating to the special rectification procedure.
The Court further held that, depending upon the facts of each case, and unless there was an exceptional delay, it could exercise its writ jurisdiction under Article 226 of the Constitution of India to extend the period.
Consequently, the Court set aside and quashed the April 8, 2026 order rejecting the petitioner’s rectification application. The appropriate jurisdictional authority was directed to revisit the rectification application already on record, strictly in accordance with law, and pass a reasoned order within eight weeks from communication of the judgment. The Court expressly clarified that it had not expressed any opinion on the merits of the rectification application and that the jurisdictional authority remained free to decide it on its own merits in accordance with law.
The Court further stated that the order would not create any right of equity in favour of the petitioner if the petitioner was ultimately found not entitled to relief strictly in accordance with law. Since affidavits had not been called for, the allegations in the writ petition were deemed not to have been admitted by the respondents. The writ petition was disposed of without any order as to costs.
A subsequent correction order records that, by consent of the parties, specified corrections were made in the judgment dated August 17, 2026: “six weeks” was corrected to “six months”; “communication” was corrected to “circular”; the advocate’s name in paragraph 5 was corrected to Dhiraj Lakhotia; references to “notification” in paragraph 5 were corrected to “circular”; and “section” in paragraph 10 was corrected to “Article”. The correction order states that the remaining judgment remained unaltered and without modification.
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
1. Mr. Dhiraj Lakhotia, learned Advocate appears for the petitioner.
2. Mr. Dilip Kumar Agarwal, learned advocate with Mr. Biswaraj Agarwal, learned Advocate appears for the respondent/Union of India.
3. The petitioner wants to avail of the Input Tax Credit Facility in respect of a particular return under Section 39 of Central Goods and Services Tax Act, 2017 (hereinafter, 2017 Act) which had been filed up to November 30, 2021 which is within the statutory cut off date fixed under Sub-Section 5 to Section 16 of 2017 Act. The petitioner had filed a rectification application on January 12, 2026 which was supposed to be filed within six weeks from the date of communication dated October 15, 2024, annexure p-6 at page 53 to the writ petition.
4. Since, the petitioner did not file the application within the said stipulated period which had a retrospective effect under the said circular/notification dated April 8, 2024 at page 49 to the writ petition read with the circular dated October 15, 2024 at page 53 to the writ petition, the rectification application of the petitioner was rejected by the revenue authority by its impugned order dated April 8, 2026 annexure p-10 at page 66 to the writ petition.
5. Mr. Dilip Kumar Agarwal, learned Advocate appearing for the petitioner submits that, the time may be extended though by virtue of the said notification dated October 15, 2024 time has been fixed for preferring a rectification application for six months from the date of the said notification but since Sub-Section 5 to Section 16 of the 2007 Act does not prescribe for any time limit, the time fixed under the said notification/circular can be extended.
6. Mr. Dilip Kumar Agarwal, learned Advocate appearing for the revenue submits that, the order in original dated March 6, 2024 at page 42 to the writ petition was served upon the petitioner on the same day by post and hence has denied the statements made in 2(iii) to (vi) of the writ petition.
7. Hence, the order of rejection of the rectification application dated April 8, 2026 is just and lawful and same should not be interfered with.
8. After considering the rival submissions of the parties and on perusal of the materials on record, it appears to this Court that, Sub-Section 5 to Section 16 of 2017 Act gives a substantive right to assessee to prefer the rectification application to avail the Input Tax Credit. Such provision does not specify any time within which an assessee has to apply to avail such facility.
9. Through the said circular/notification dated April 8, 2024 at page 49 read with the circular dated October 15, 2024 at page 53 to the writ petition though the department with a prospective effect has limited the period for six months from the date of issuance of the notification for an assessee to avail Input Tax Credit Facility by filing a necessary rectification application but in absence of any time frame having been mentioned under Sub-Section 5 to Section 16 of the 2017 Act which is the substantive provision, the time frame mentioned by the department under the said two notifications dated April 8, 2024 read with October 15, 2024 being the notifications issued in exercise of executive power cannot prevail upon or override a substantive provision under the statute. These notifications will give guideline and are directory in nature and not mandatory.
10. In view of the forgoing reasons and discussions depending upon the fact situation, which shall vary from case to case, this Court by exercising its power under Section 226 of the Constitution of India can extend the period, unless an exceptional delay is there.
11. In view of the above, the order impugned dated April 8, 2026 annexure p-10 at page 66 to the writ petition rejecting the rectification application, submitted by the petitioner, stands set aside and quashed.
12. In view of the above, the appropriate jurisdictional authority shall revisit the rectification application which is already on record, strictly in accordance with law and shall dispose it of by passing a reasoned order positively within eight weeks from the date of communication of this order.
13. It is made clear that, this court have not expressed any opinion on merit of the rectification application and the jurisdictional authority shall be free to proceed with it and dispose of it on its own merits in accordance with law.
14. This order, in any event, shall not create any right of equity in favour of the petitioner, in the event, the petitioner is found not entitled to get relief in the rectification application strictly in accordance with law.
15. Since affidavits are not called for, the allegations made in the writ petition are deemed not to have been admitted by the respondents.
16. The writ petition WPA 1360 of 2026 stands disposed of, without any order as to costs.
17. Parties shall act on the basis of the server copy of this judgment duly downloaded from the official website of this Court.
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On the joint prayer of the parties and by consent of the parties, the following corrections are made in the Judgment dated August 17, 2026 vide Order Dated August 21, 2026:
a) In the penultimate line of paragraph 3 of the Judgment the expression “six weeks” is corrected as “six months” and the expression “communication” is corrected as “circular”;
b) In the first line of paragraph 5, the name of the advocate for the petitioner is corrected as Dhiraj Lakhotia and in the third line of the paragraph, the expression “notification” is corrected as “circular”. Similarly, in the fifth line of the paragraph the expression “notification” is corrected as “circular”;
c) In paragraph 10 the expression “section” is corrected as “Article”.
All the above corrections shall be incorporated in the Judgment dated August 17, 2026.
Rest of the Judgment remains unaltered and without any modification.
