Vijaykumar Bhogilal Vs Union of India & Ors. (Gujarat High Court)
The petitioner is a registered dealer. It trades in cigarettes. Cess is payable on supply of the said commodity. It did not avail credit of such cess nor did disclose output liability of such cess in the monthly GSTR-3B for 2018-2019. It, subsequently, corrected the said error, committed by the consultant, while filing annual return GSTR-9. However, a notice was issued demanding output tax claiming that time limit for rectification of return under section 39 has lapsed and no ITC could be claimed. A demand of over Rs.7 crores was confirmed. The petitioner moved an application for rectification under section 161 of the GST Act claiming invocation of “doctrine of necessity”. However, no orders were passed, hence, writ petition came to be filed. During the pendency of writ, the rectification application was rejected as six months had lapsed for passing order.
The Hon’ble Gujarat High Court set aside the orders and remanded the matter back to the original authority.
It held: (i) the law has been amended retrospectively by introducing section 16(5) of the Act;
(ii) the petitioner has filed the return in time provided under section 16(5) and hence; the claim of the petitioner should be re-considered and fresh orders be passed.
The matter was argued by Ld. Counsel Bharat Raichandani along with Rithik Jain
