2024(01)LCX0414
Karumpelil Medicals
Versus
THE ASSISTANT COMMISSIONER
W.P.(C) NO. 44150 OF 2023 decided on 16-01-2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
TUESDAY, THE 16TH DAY OF JANUARY 2024 / 26TH POUSHA, 1945
W.P.(C) NO.44150 OF 2023
PETITIONER:
M/S. KARUMPELIL MEDICALS,
KURUMPELLIL AVENUE, PATTATHANAM,
KOLLAM, PIN-691 021
REPRESENTED BY ITS MANAGING PARTNER,
MUHAMMED ASLAM
BY ADVS.
HARISANKAR V. MENON
MEERA V.MENON
R.SREEJITH
K.KRISHNA
PARVATHY MENON
RESPONDENTS:
1 THE ASSISTANT COMMISSIONER,
KERALA GOODS & SERVICE TAX DEPARTMENT TAX PAYER
SERVICES, KOLLAM EAST, KOLLAM, PIN-691 021.
2 UNION OF INDIA
REPRESENTED BY SECRETARY TO GOVERNMENT,
MINISTRY OF FINANCE (DEPARTMENT OF REVENUE),
NORTH BLOCK, NEW DELHI, PIN-110 001.
3 CENTRAL BOARD OF INDIRECT
TAXES & CUSTOMS,
GST POLICY WING, NORTH BLOCK, NEW DELHI-110 001
REPRESENTED BY PRINCIPAL COMMISSIONER(GST).
4 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
TAXES DEPARTMENT, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
SRI. P.R. SREEJITH
SMT. RESHMITA RAMACHANDRAN, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 16th day of January, 2024
The present writ petition has been filed impugning the order dated 16.11.2023 passed by the 1st respondent - Assistant Commissioner, KGST Department (Taxpayer Service Circle), Kollam East under Section 73(9) read with Rule 142(5&6) of the CGST/SGST of the rules made thereunder.
2. The petitioner is the registered dealer under the provisions of CGST/SGST Act. The petitioner deals with commodities under HSN 3002, 3006, 3003, 3004 and 3005. The petitioner had filed return in Form GSTR 3B and statement of outward supplies in Form GSTR 1 for the financial year 2017-2018. The statement of inward supplies in Form GSTR 2A for the period was autopopulated in the common portal. On scrutiny of the returns filed by the petitioner dealer, certain discrepancies were noticed in respect of availing the ITC credit as per GSTR 3B and GSTR 2A. The discrepancies were communicated to the petitioner dealer, vide notice dated 02.03.2020.
3. The petitioner filed a reply on 08.11.2020 to the said notice. His reply was not accepted. In view of the provisions under Section 16(2)(c), a show cause notice was issued to the petitioner and an opportunity of personal hearing was granted to him on 25.07.2022. The petitioner did not appear on 25.07.2022 and another opportunity of hearing was granted on 25.04.2023, however, the petitioner did not respond to the notice. Another reminder was issued giving him an opportunity of personal hearing on 13.07.2023. The petitioner filed a reply to the show cause notice and produced some supporting documents. The reply was verified with the documents furnished. The case of the supplies received by the petitioner would suggest that the petitioner did not produce any credible documents in respect of the inward supplies acquired from M/s. Sarah Enterprises, Modikits, Jayakrishna Agencies and Prompt Marketing. It would also suggest that in all the supplies taken by the petitioner, GSTIN of the tax payer was not present in the invoices, and the seal of the supplier was also not present in the invoices. As the petitioner failed to prove discharge burden under Section 155 of the CGST Act, regarding payment of inward supplies received by them, and the supplier's bill, input tax credit for an amount of Rs.1,24,618.60/- and supported excess claim of input tax credit of Rs.1,24,618.60/-, the interest and penalty had been levied and the total amount assessed is Rs.5,22,174/- along with interest at the rate of 18% per annum.
4. Considering the detailed discussion on the petitioner's supplies that if the petitioner had taken input tax credit may not support with cogent and technical evidence and he failed to discharge the burden under Section 155 of the CGST Act and considering the provision under Section 16(2)(C) of the CGST Act, input tax credit to the extent of Rs.1,24,618.60/- under CGST Act, I do not find any grounds to enter into the error of law, requiring this Court to interfere with the assessment order that deny the input tax credit, as mentioned above.
In view thereof, this writ petition is dismissed, however, it will be open to the petitioner to take recourse to any other remedy of appeal as provided under Section 107 of CGST/SGST Act within the said order and if the petitioner files the appeal, the appellate authority shall decide the issue on merits, without being influenced by any of the other issues made therein.
Sd/-
DINESH KUMAR SINGH
JUDGE
APPENDIX OF WP(C) 44150/2023
PETITIONER'S EXHIBITS
Exhibit P1 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2017-18 DTD. 16-11-2023
Exhibit P2 COPY OF ORDER IN WPC NO 34128/2022 OF THIS HON'BLE COURT DTD. 28-10-2022