GST: Input tax credit for FY 2018-19 was disallowed invoking section 16(4) solely on ground of belated claim filing but retrospective insertion of sections 16(5) and 16(6) by Finance (No. 2) Act, 2024 extending time would cure bar of time; thus, entitlement to ITC subsisted even without reply to SCN, subject to compliance.
HIGH COURT OF MADRAS
Om Sakthi Maligai v/s Superintendent of GST and Central Excise, Tiruvarur*
Input tax credit - Limitation period- Extension of time - Retrospective amendment - Period April 2018 to March 2019 - SCN proposed disallowance of input tax credit for belated availment under section 16(4) - Petitioner did not file reply to SCN - Impugned order confirmed proposal and raised demand - Finance (No. 2) Act, 2024 inserted section 16(5) and section 16(6) retrospectively from 01.07.2017 - Petitioner sought entitlement to credit notwithstanding non-filing of reply in view of retrospective cure - HELD : It was noted that confirmation based on section 16(4) time bar stood eclipsed by retrospective insertion of section 16(5) and section 16(6) - By statutory intervention, belatedly availed credit stood cured subject to fulfillment of stipulated conditions - Even without reply to SCN, entitlement subsisted subject to furnishing requisite documents evidencing receipt of supplies and eligibility - Benefit of retrospective amendment operated from 01.07.2017 for subject period - Matter was remitted to respondent for fresh order on merits in accordance with law [Section 16, read with section 155, of Central Goods and Services Tax Act, 2017/Tamil Nadu Goods and Services Tax Act, 2017 - Rule 36 of Central Goods and Services Tax Rules, 2017/Tamil Nadu Goods and Services Tax Rules, 2017 - Finance (No. 2) Act, 2024] [Paras 3 and 4] [In favour of assessee/matter remanded]
Ms. R. Dhanalakshmi for the Petitioner. Mrs. Revathi Manivannan, Senior Standing Counsel for the Respondent.
ORDER
1. Mrs.Revathi Manivannan, learned Senior Standing Counsel takes notice for the Respondent.
2. This Writ Petition is being disposed of at the time of admission with the consent of the learned counsel for the Petitioner and the learned Senior Standing Counsel for the Respondent.
3. The Petitioner is before this Court against the impugned Order bearing No.05/2024-GST TVR dated 26.04.2024 whereby the proposal in Show Cause Notice dated 25.12.2023 issued for the Tax Period April 2018-March 2019 has been confirmed. In absence of a reply to the Show Cause Notice, the demand has been confirmed on account of belated availing of Input Tax Credit under Section 16(4) of the respective GST Enactments which now stands condoned by virtue of insertion of Section 16(5) and Section 16(6) to the respective GST Enactments inserted by Finance (No.2) Act, 2024 (15 of 2024) dated 16.08.2024 with effect from 27.09.2024 vide SO 4253(E) with retrospective effect from 01.07.2017. By virtue of statutory intervention, the credit that was availed belatedly has been cured subject to certain condition.
4. Even if the Petitioner has not complied with the above condition i.e., filing of reply to the Show Cause Notice, the Petitioner is entitled to avail Input Tax Credit subject to the Petitioner filing requisite documents to establish that the Petitioner had indeed received interest on which Input Tax Credit was availed belatedly.
5. Considering the same, this case is remitted back to the Respondent to pass a fresh order on merits and in accordance with law as expeditiously as possible, preferably, within a period of three (3) months from the date of receipt of a copy of this order. Subject to the Petitioner complying the above stipulation, the attachment of the bank account of the Petitioner shall also stand automatically vacated.
6. This Writ Petition stands disposed of with the above observations. No costs. Connected Writ Miscellaneous Petition is closed.
*In favour of assessee.
Source: taxmann.com