Fins Engineers and Contractors Private Limited Vs Superintendent (Kerala High Court)
Summary: The Kerala High Court examined whether ₹59,05,352 representing tax deducted at source (TDS) from works-contract receipts under the erstwhile Kerala Value Added Tax regime could be transitioned as input tax credit under the GST framework. Fins Engineers and Contractors Private Limited, a registered dealer under the Kerala VAT Act, migrated to the GST regime and filed Form GST TRAN-1 on 14 November 2022, claiming the amount under Section 140(1) of the State GST Act. The tax authorities issued a notice on 15 February 2023 and subsequently rejected the claim, concluding that TDS deducted from the petitioner’s contract receipts was not eligible input tax credit. The authorities maintained that the amount could instead be pursued through the statutory refund mechanism under Section 142(3). The petitioner challenged that determination under Article 226 of the Constitution.
The principal issue before the Court was whether tax deducted from outward works-contract receipts could qualify as input tax credit available for transition into the GST electronic credit ledger. The Court examined Sections 2(62) and 2(63), which define input tax and input tax credit, along with Section 140 and Rule 117 of the GST Rules. It reasoned that input tax concerns tax charged on supplies received by a registered person, whereas the disputed TDS represented tax deducted from payments made to the petitioner for its outward supplies. Consequently, the amount did not satisfy the statutory definition of input tax credit. The Court further held that the proviso to Section 140 restricted transitional credit to amounts otherwise admissible under the GST legislation, rather than permitting the migration of every amount paid or deducted under the earlier VAT regime.
The petitioner relied upon DMR Constructions Vs Assistant Commissioner, Commercial Tax Department of the Madras High Court and Subhash Singh Choudhary and Bhilai Engineering Corporation of the Jharkhand High Court, which supported transition of unadjusted legacy TDS balances. However, the Kerala High Court declined to apply those decisions. It observed that the Madras High Court ruling had not considered the restrictive proviso to Section 140, while the Jharkhand High Court had not examined the statutory definitions of input tax and input tax credit. The Court also rejected reliance on Section 17(5), explaining that the provision concerned restrictions on otherwise eligible input tax credit and did not determine whether legacy VAT TDS could qualify for transition in the first place.
The Kerala High Court concluded that TDS deducted from the petitioner’s contract receipts could not be treated as input tax credit merely because it represented tax deposited with the Government. It distinguished amounts reflected in the electronic cash ledger from eligible input tax credit recorded in the electronic credit ledger and held that Section 140 governed transition of qualifying input tax credit, not every tax amount arising under the earlier VAT legislation. Accordingly, the writ petition was dismissed and the transitional credit claim of ₹59,05,352 was rejected. Nevertheless, the Court expressly permitted the petitioner to apply for a refund of the TDS amount in accordance with law. It further directed that any such refund application should be considered on its merits without examining the question of limitation. The decision therefore denied the requested mode of transition while preserving the petitioner’s opportunity to pursue recovery through the refund mechanism.
Cases Discussed
- DMR Constructions v. Assistant Commissioner, Commercial Tax Department (Madras High Court); (2021) 91 GSTR 278 (Mad). The Kerala High Court declined to apply the decision because it considered that the proviso to Section 140 had not been addressed.
- M/s Subhash Singh Choudhary and M/s Bhilai Engineering Corporation Ltd. v. State of Jharkhand and Joint Commissioner of State Tax (Administration) (Jharkhand High Court); 2023 (1) TMI 1023. Distinguished for not addressing the definitions of input tax and input tax credit.
FULL TEXT OF THE JUDGMENT OF KERALA HIGH COURT
Heard Mr V Jayanandakumar, a very eminent Counsel of this Court, for the petitioner, Mr P R Sreejith, learned Standing Counsel for the GST Department, and Ms Rasmitha Ramachandran, learned Government Pleader for the State.
2. The present writ petition under Article 226 of the Constitution of India has been filed by the petitioner questioning the Ext.P6 order, whereby the petitioner’s claim for treating the TDS on outward supply has not been treated as the input tax credit for the purposes of giving transitional credit to the petitioner to an extent of Rs.59,05,352/-.
3. The petitioner was registered as a dealer under the provisions of the Kerala Value Added Tax Act, and on the advent of the GST regime, transitioned to the provisions of CGST/SGST Act 2017, the petitioner got registered as a dealer under the provisions of the CGST/SGST Act. The petitioner filed TRAN-1 on 14.11.2022 and claimed credit of Rs.59,05,352/- under the SGST Act through table 5 (c) as per Section 140(1) of the SGST Act 2017. This amount of Rs.59,05,352/- was the TDS amount deducted from the contract amount. Notice dated 15.02.2023 was issued to the petitioner in respect of the said claim. The petitioner filed a reply, and after giving an opportunity of hearing to the petitioner, the said claim for giving input tax credit of Rs.59,05,352/-, i.e., the TDS amount, was declined and rejected.
3.1 The Assessing Authority has been of the view that the TDS amount remitted by the contractor of the petitioner can only be claimed through a refund application, such amount is ineligible to be transitioned to GST regime credit, and such amount cannot be claimed in TRAN-1 as credit. The petitioner/assessee may file an application under Section 142(3) of the SGST/CGST Act 2017 for a refund, but the TDS is not an input tax credit for which the provision of Section 140 is applicable as transitional credit under the GST regime.
3.2 Section 2(62) and 2(63) defines ‘input tax’ and ‘input tax credit’ as under:
“2. Definitions.—
In this Act, unless the context otherwise requires,–
………
(62) “input tax” in relation to a registered person, means the central tax, State tax, integrated tax or Union territory tax charged on any supply of goods or services or both made to him and includes—
(a) the integrated goods and services tax charged on import of goods;
(b) the tax payable under the provisions of sub-sections (3) and (4) of section 9;
(c) the tax payable under the provisions of sub-sections (3) and (4) of section 5 of the Integrated Goods and Services Tax Act;
(d) the tax payable under the provisions of sub-sections (3) and (4) of section 9 of the respective State Goods and Services Tax Act; or
(e) the tax payable under the provisions of sub-sections (3) and (4) of section 7 of the Union Territory Goods and Services Tax Act, but does not include the tax paid under the composition levy;
(63) “input tax credit” means the credit of input tax;”
For claiming an amount as input tax credit, the said amount should fall within the definition of ‘input tax’ and ‘input tax credit’ as defined under Sections 2(62) and 2(63).
3.3 Section 140 of the CGST/SGST Act 2017 facilitates the claim of the transitional input tax credit from the transition of the VAT regime to the GST regime. Section 140 on reproduction would read as under:
“140. Transitional arrangements for input tax credit.—
(1) A registered person, other than a person opting to pay tax under section 10, shall be entitled to take, in his electronic credit ledger, the amount of CENVAT credit of eligible duties carried forward in the return relating to the period ending with the day immediately preceding the appointed day, furnished by him under the existing law within such time and in such manner as may be prescribed:
Provided that the registered person shall not be allowed to take credit in the following circumstances, namely:—
(i) where the said amount of credit is not admissible as input tax credit under this Act; or
(ii) where he has not furnished all the returns required under the existing law for the period of six months immediately preceding the appointed date; or
(iii) where the said amount of credit relates to goods manufactured and cleared under such exemption notifications as are notified by the Government.
….”
Though sub-section (1) of section 140 speaks about tax paid as VAT, however, the proviso restricts the credit only in respect of the input tax credit for which TRAN-1 has been provided under the GST Rules.
3.4 Rule 117 of the GST Rules provides for the claim of input tax credit, which would read as under:
“117. Tax or duty credit carried forward under any existing law or on goods held in stock on the appointed day.-
(1) Every registered person entitled to take credit of input tax under section 140 shall, within ninety days of the appointed day, submit a declaration electronically in FORM GST TRAN-1, duly signed, on the common portal specifying therein, separately, the amount of input tax credit of eligible duties and taxes, as defined in Explanation 2 to section 140, to which he is entitled under the provisions of the said section:
Provided that the Commissioner may, on the recommendations of the Council, extend the period of ninety days by a further period not exceeding ninety days.
Provided further that where the inputs have been received from an Export Oriented Unit or a unit located in Electronic Hardware Technology Park, the credit shall be allowed to the extent as provided in sub-rule (7) of rule 3 of the CENVAT Credit Rules, 2004.
(1A) Notwithstanding anything contained in sub-rule (1), the Commissioner may, on the recommendations of the Council, extend the date for submitting the declaration electronically in FORM GST TRAN-1 by a further period not beyond 31st March, 2020, in respect of registered persons who could not submit the said declaration by the due date on account of technical difficulties on the common portal and in respect of whom the Council has made a recommendation for such extension.
(2) Every declaration under sub-rule (1) shall- (a) in the case of a claim under sub-section (2) of section140, specify separately the following particulars in respect of every item of capital goods as on the appointed day-
(i) the amount of tax or duty availed or utilized by way of input tax credit under each of the existing laws till the appointed day; and
(ii) the amount of tax or duty yet to be availed or utilized by way of input tax credit under each of the existing laws till the appointed day;
(b) in the case of a claim under sub-section (3) or clause (b) of sub-section (4) or subsection (6) or sub-section (8) of section 140, specify separately the details of stock held on the appointed day;
(c) in the case of a claim under sub-section (5) of section 140, furnish the following details, namely:—
(i) the name of the supplier, serial number and date of issue of the invoice by the supplier or any document on the basis of which credit of input tax was admissible under the existing law;
(ii) the description and value of the goods or services;
(iii) the quantity in case of goods and the unit or unit quantity code thereof;
(iv) the amount of eligible taxes and duties or, as the case may be, the value added tax [or entry tax] charged by the supplier in respect of the goods or services; and
(v) the date on which the receipt of goods or services is entered in the books of account of the recipient.
(3) The amount of credit specified in the application in FORM GST TRAN-1 shall be credited to the electronic credit ledger of the applicant maintained in FORM GST PMT-2 on the common portal.
(4) (a) (i) A registered person who was not registered under the existing law shall, in accordance with the proviso to sub-section (3) of section 140, be allowed to avail of input tax credit on goods (on which the duty of central excise or, as the case may be, additional duties of customs under sub-section (1) of section 3 of the Customs Tariff Act, 1975, is leviable) held in stock on the appointed day in respect of which he is not in possession of any document evidencing payment of central excise duty.
(ii) The input tax credit referred to in sub-clause (i) shall be allowed at the rate of sixty per cent. on such goods which attract central tax at the rate of nine per cent. or more and forty per cent. for other goods of the central tax applicable on supply of such goods after the appointed date and shall be credited after the central tax payable on such supply has been paid: Provided that where integrated tax is paid on such goods, the amount of credit shall be allowed at the rate of thirty per cent. and twenty per cent. respectively of the said tax; (iii) The scheme shall be available for six tax periods from the appointed date.
(b) The credit of central tax shall be availed subject to satisfying the following conditions, namely:-
(i) such goods were not unconditionally exempt from the whole of the duty of excise specified in the First Schedule to the Central Excise Tariff Act, 1985 or were not nil rated in the said Schedule;
(ii) the document for procurement of such goods is available with the registered person;
(iii) The registered person availing of this scheme and having furnished the details of stock held by him in accordance with the provisions of clause (b) of sub-rule
(2), submits a statement in FORM GST TRAN 2by 31st March 2018, or within such period as extended by the Commissioner, on the recommendations of the Council, for each of the six tax periods during which the scheme is in operation indicating therein, the details of supplies of such goods effected during the tax period: Provided that the registered persons filing the declaration in FORM GST TRAN-1 in accordance with sub-rule (1A), may submit the statement in FORM GST TRAN-2 by 30th April, 2020;
(iv) the amount of credit allowed shall be credited to the electronic credit ledger of the applicant maintained in FORM GST PMT-2 on the common portal; and
(v) the stock of goods on which the credit is availed is so stored that it can be easily identified by the registered person.”
4. The two judgments relied by the learned Counsel for the petitioner of other High Courts, i.e. one by the Madras High Court in the case of DMR Constructions v. Assistant Commissioner, Commercial Tax Department1 does not take note of the proviso to Section 140, and without taking note of the proviso to Section 140, the judgment has been rendered. 1 (2021) 91 GSTR 278 (Mad) Therefore, I am of the considered view that the said judgment would not be applicable while reading the provisions of the GST Act, including the definition as provided in Sections 2(62) and 2(63), as well as the proviso to Section 140 of the CGST/SGST Act.
4. The two judgments relied by the learned Counsel for the petitioner of other High Courts, i.e. one by the Madras High Court in the case of DMR Constructions v. Assistant Commissioner, Commercial Tax Department1 does not take note of the proviso to Section 140, and without taking note of the proviso to Section 140, the judgment has been rendered. 1 (2021) 91 GSTR 278 (Mad) Therefore, I am of the considered view that the said judgment would not be applicable while reading the provisions of the GST Act, including the definition as provided in Sections 2(62) and 2(63), as well as the proviso to Section 140 of the CGST/SGST Act.
4.1 The next judgment of Jharkhand High Court in M/s Subhash Singh Choudhary and M/s Bhilai Engineering Corporation Ltd v. The State of Jharkhand, Joint Commissioner of State Tax (Administration)2 also does not take into account the definition of ‘input tax’ and ‘input tax credit’.
5. Therefore, I am of the view that the TDS which is tax deducted by the contractor on execution of the contract of the petitioner, cannot be said to be input tax credit. Such tax deducted at source is reflected in the electronic cash register and not in the electronic credit ledger. Only the amount which is reflected in the electronic credit ledger is to be treated as input tax credit and not any amount of tax which is reflected in the electronic cash register can be treated as the input tax credit.
5.1 Section 140 of the CGST/SGST Act is in respect of the transitional credit of input tax and not every tax paid under the VAT regime. Therefore, I find not much substance in the present writ petition, which is hereby dismissed. However, the petitioner may apply for a refund of TDS in accordance with the law if he is so advised, and such claim shall be processed in accordance with the law. If the petitioner files an application for a refund of TDS, the application should be considered in accordance with the law without going into the question of limitation.
