Case Law Details
Goparaj Gopalakrishnan Pillai Vs State Tax Officer (Kerala High Court)
The Hon’ble Kerala High Court, in the case of M/s. Goparaj Gopalkrishnan Pillai v. State Tax Officer, Thripunithura & Ors. [WP(C) 29855 of 2023 dated October 5, 2023] allowed the writ petition and held that the Input Tax Credit (“ITC”) should not be denied on the ground that GST paid is not reflected in Form GSTR-2A due to non-remittance by Supplier. Therefore, the High Court set aside the Assessment Order to the extent of denial of ITC and directed the Revenue Department to examine the evidence placed on record by the assessee and pass fresh orders accordingly.
Facts:
M/s. Goparaj Gopalkrishnan Pillai (“the Petitioner”) is a registered dealer under the GST Act, 2017 and was alleged by the Revenue Department (“the Respondent”) that ITC as per Form GSTR-2A was Rs.65,39,776/-whereas the ITC availed and utilised as per Form GSTR-3B was Rs.98,44,815/-, therefore, the Petitioner has availed and utilised excess ITC of Rs.33,05,038/- for the Financial Year (“FY”) 2017-2018. The Respondent issued Show Cause Notice dated August 26, 2022 (“SCN”) to the Respondent for which response was filed by the Petitioner stating that, the Petitioner had mistakenly entered the GST amount of Rs.36,47,624.24/- instead of Rs. 3,64,724.24/- in GSTR-3B of December, 2017 and has not utilised ITC till date. The excess ITC of Rs. 22,922/- was deducted in GSTR-3B of August 2018.
Thereafter, the Revenue Department vide Assessment Order dated November 17, 2022 (“the Impugned Order”) rejected the claim of ITC of the Petitioner on the ground that supplier/dealer has neither remitted the tax collected on supply of goods to the Government nor uploaded the details of the supply in Form GSTR-1 on the portal and held that the Petitioner was not entitled to avail ITC on supplies for which the supplier has not remitted the tax collected to the Government. Therefore, the excess ITC of Rs.19,830/-, availed was disallowed and Interest and penalty of Rs. 12,742/- and Rs. 20,000/- were imposed respectively. Thus, the Respondent directed the Petitioner to pay the total amount of Rs. 52,572/-.
Aggrieved by the Impugned Order, the Petitioner filed an appeal before the Hon’ble Kerala High Court for setting aside the Impugned Order and SCN.
Issue:
Whether GST paid by the recipient but not remitted by the Supplier to the Government is ground for denying ITC?
Held:
The Kerala High Court in WP(C) 29855 of 2023 held as under:
- Relying upon the judgement of the Hon’ble Kerala High Court in the case of M/s. Diya Agencies v. State Tax Officer [WP (C) 29769/2023 dated September 12, 2023], the High Court noted that, the amount of GST paid, not reflected in Form GSTR-2A should not be the sole basis for denial of the claim for ITC when there is evidence on record to prove that the claim of ITC is bonafide and genuine.
- Held that, the Impugned Order to the extent of denial of ITC of Rs.19,830/- was set aside, hence the Writ Petition is allowed.
- Directed that, the matter be remanded back to Respondent for the purpose of examination of the evidence and documents submitted by the Petitioner for claiming ITC. Thereby, the Petitioner should be allowed to avail ITC denied if the Respondent Officer is satisfied that the ITC claim is bonafide and genuine.
- Further directed that, the Petitioner shall appear before the Respondent Officer with evidence to support his claim for ITC and fresh orders be passed by the Respondent Officer after examination of Evidence, in accordance with law.
This verdict clarifies that ITC cannot be denied solely based on the non-remittance of taxes by the supplier. It highlights the importance of considering the genuineness of the ITC claim and examining the evidence provided by the taxpayer before disallowing the credit. This judgment establishes a legal precedent that businesses can refer to in similar cases involving the denial of ITC.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
The petitioner has approached this Court with the present writ petition impugning Ext.P1 Show Cause Notice and Ext.P1(A) assessment order whereby the petitioner’s claim for input tax credit to an extent of Rs.19,830/- has been proposed to be disallowed vide Ext.P1 show cause notice and vide Ext.P1(A) order, it has been disallowed. Interest and penalty have been imposed to an extent of which Rs.12,742/-and Rs.20,000/-respectively along with disallowed input tax credit have been ordered to be paid by the petitioner (total amount is Rs.52,572/-).
2. The petitioner is a registered dealer under GIST Act 2017 with GSTIN No.32ANPPP5159DIZV. The petitioner in its return of GST for the year 2017-2018 had availed and utilised (including both CGST & SGST) allegedly excess input tax credit of Rs.33,05,038/-. Since the ITC as per Form GSTR-2A was Rs.65,39,776/-, whereas the ITC availed and utilised as per Form GSTR-3B was Rs.98,44,815/-, while comparing the form GSTR-2A and 3B, it appears that the petitioner had availed excess input tax credit to an extent of Rs.33,05,038/-. The petitioner was issued show cause notice dated 26.08.2022 to which he filed reply on 3rd October 2020. In response to the notice issued, the petitioner stated that he mistakenly entered SGST of Rs.36,47,624.24 instead of Rs.3,64,764.24 in GSTR-3B of December 2017 (difference amount of Rs.32,82,860/-). The petitioner also submitted that he had not utilised ITC till the said date. Excess input tax credit of Rs.22,922.22 was deducted in the GSTR-3B of August 2018 (Financial Year 2018-2019).
3. The Assessing Officer held that the tax payer would be entitled to avail ITC only if the tax charged on such supply is remitted by the counterpart to the Government. In the present case, the supplier/dealer had not remitted tax collected on the supply nor uploaded such supply details in his return. It was held that the petitioner was not entitled to avail ITC on such supplies for which the supplier/dealer had not remitted the tax collected on the supply. An intimation of liability in Part-A of Form GST DRC-01A under Section 73(5) of the Act was issued to the petitioner. It appears that the petitioner did not file any reply to the said intimation. The Assessing Officer taking note of the Circular No.7/2021 dated 7th November 2021 issued by the Commissioner of State Goods and Services Tax Department, Kerala, concluded that the petitioner was eligible to utilise ITC to the tune of Rs.65,61,906/- during 2017-2018 and thereby availed and utilised Rs.19,830/-, excess input tax credit.
4. The question whether input tax credit to a dealer would be denied merely on the ground of non-remittance of tax by the supplier/dealer on the goods/services supplied to the assessee as the same tax is not reflected in the Form GSTR-2A, would be enough to deny the claim of input tax credit to the assessee has been considered in the judgment dated 12th September 2023 passed in WPC No.29769 of 2023 in the case of Diya Agencies v State Tax Officer.
5. Paragraph 8 of the said judgment reads as under:
8. In view thereof, I find that the impugned Exhibit P-1 assessment order so far denial of the input tax credit to the petitioner is not sustainable, and the matter is remanded back to the Assessing Officer to give opportunity to the petitioner for his claim for input tax credit. If on examination of the evidence submitted by the petitioner, the assessing officer is satisfied that the claim is bonafide and genuine, the petitioner should be given input tax credit. Merely on the ground that in Form GSTR-2A the said tax is not reflected should not be a sufficient ground to deny the assessee the claim of the input tax credit. The assessing 2023:KER:55318 WP(C) NO. 29769 OF 2023 8 authority is therefore, directed to give an opportunity to the petitioner to give evidence in respect of his claim for input tax credit. The petitioner is directed to appear before the assessing authority within fifteen days with all evidence in his possession to prove his claim for higher claim of input tax credit. After examination of the evidence placed by the petitioner/assessee, the assessing authority will pass a fresh order in accordance with law.
6. Considering the aforesaid judgment, the present Writ Petition is allowed. Impugned order Ext.P1(A) for denial of input tax credit to the petitioner to the extent of 19,830/- is hereby set aside and the matter is remitted back to the Assessing Office to give one opportunity to the petitioner for giving evidence and documents in support of his claim for input tax credit which has been denied vide order Ext.P1(A). If on examination of the evidence and documents submitted by the petitioner, the Assessing Officer is satisfied that the claim is bonafide and genuine, the petitioner should be given credit of input tax which has been denied by the order, Ext.P1(A).
7. The petitioner is directed to appear before the Assessing Officer within ten days with all evidence in his possession to prove his claim for input tax credit of Rs.19830/- which had been denied to the petitioner. After examination of the evidence and documents placed by the petitioner/assessee, the Assessing Officer is directed to pass fresh orders in accordance with law.
With the aforesaid direction, the Writ Petition is disposed of.
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