2024(04)LCX0533

Andhra Pradesh High Court

Fluentgrid Limited

Versus

The Additional Commissioner of Central Tax

WP NO: 8291 OF 2024 decided on 04-04-2024

IN THE HIGH COURT OF ANDHRA PRAD

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
(SPECIAL ORIGINAL JURISDICTION)

THURSDAY, THE FOURTH DAY OF APRIL,

TWO THOUSAND AND TWENTY FOUR

:PRESENT:

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

AND
THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA

WP NO: 8291 OF 2024
 

Between:

M/s. Fluentgrid Limited, 5th Floor, D.No. 9-29-19/A, Waltair Heights,
Blaji Nagar, Siripuram, Visakhapatnam- 530003
Represented by its Assistant Vice President,
Finance Shri K. Venkata Krishna, S/o ShriPattabhiRamayya,
Aged 42 years, R/0 Flat SE-10-9, Celebrity Towers,
Shriram Panorama Hills, Yendada, Rushikonda,
Visakhapatnam(Rural), Andhra Pradesh- 530045                 ...Petitioners
 

AND

1. The Additional Commissioner of Central Tax,
Visakhapatnam Central GST Commissionerate, GST Bhavan,
Port Area, Visakhapatnam, Andhra Pradesh - 530 035.

2. The Superintendent of Central Tax, Srinagar CGST Range,
Visakhapatnam North CGST Division, Door No. 10-5-22,
Siripuram, Visakhapatnam, Andhra Pradesh - 530 003

3. Assistant/Deputy Commissioner of state tax,
Visakhapatnam II, State Taxes Complex,
Visakhapatnam, Andhra Pradesh - 530040

4. Union of India, Ministry of Finance, Represented by its Secretary,
North Block, New Delhi - 110001

5. The State of Andhra Pradesh, Represented by Secretary
of Government (CT), Finance, Andhra Pradesh
Central Board of Indirect Taxes and Customs,
GST Policy Wing, New Delhi Rep by its Commissioner

6. Central Board of Indirect Taxes and Customs, GST Policy Wing,
New Delhi Rep by its Commissioner                                                 Respondent
 

Petition under Article 226 of the Constitution of India is filed praying that in the circumstances stated in the affidavit filed therewith, the High Court may be.

A.The Hon'ble Court may be pleased to issue a writ, order, or direction more particularly one in the nature of a Writ of Mandamus or any other appropriate writ declaring the Order-In-Original No. VSP-CGST-ADC-19-2023-24 dated 20.12.2023 (Reference No. ZD37122301957IN) passed by the 1st Respondent (impugned order) as being void, arbitrary, illegal, without jurisdiction, violative of the principles of naturaljustice apart from being violative of Articles 14, 19(1 )(g) and 265 of the Constitution of India, and to consequently set aside the same and pass such further or other order(s) as this Honble Court may deem fit and proper in the circumstances of the case

B. The Honble Court may be pleased to issue a writ, order, or direction more particularly one in the nature of a Writ of Mandamus or any other appropriate writ declaring the respondents to adjust the payment in SEZ registration with the demand raised in DTA registration without interest and penalties or alternatively direct the respondent to refund the excess paid GST in SEZ registration and permit Petitioner to remit the GST in DTA registration without interest and penalties

C. The Honble Court may be pleased to issue a writ, order, or direction more particularly one in the nature of a Writ of Mandamus or any other appropriate writ declaring that the Notification No. 09/2023-C.T dated 31.03.2023 issued by Respondent No. 4 through Respondent No. 6 and corresponding GO Ms. No. 121 dated 25.08.2023 issued by Respondent No. 5 which extended the time limit for passing the orders, are without authority of law and ultra vires to the section 73(10) of the GST Act 2017 and Section 168A of GST Act, 2017 and violative of articles 14, 19(l)(g) 21 and 265 of the Constitution of India;

Petition under Section 151 CPC is filed praying that in the circumstances stated in the affidavit filed in support of the writ petition, the High Court may be pleased to stay the operation of the Order-ln-Original No. VSP-CGST-ADC-19-2023-24 dated 20.12.2023 (Reference No. ZD37122301957IN) passed by the 1st Respondent, pending disposal of WP.No.8291 of 2024, on the file of the High Court.

The petition coming on for hearing, upon perusing the Petition and the affidavit filed in support thereof and upon hearing the arguments of Sri Venkata Prasad P, learned counsel for the Petitioner and Ms.Santhi Chandra, learned Junior Standing Counsel for Respondent Nos.1 to 3 & 6 and Sri Y.V.Anil Kumar, learned counsel for the Respondent No.4, the Court made the following;

ORDER:

"Heard Sri Venkata Prasad P, learned counsel for the petitioner and Ms.Santhi Chandra, learned Junior Standing Counsel for respondent Nos.1 to 3 & 6.

2. Sri Y.V.Anil Kumar, learned counsel has accepted notice for Respondent No.4.

3. Sri Venkata Prasad. P, learned counsel for the petitioner submits that the controversy involved in this petition is also attracting attention of this Court in various writ petitions, one of which W.P.No.6084 of 2024 for the same financial year 2017-18. He submit that same order may be passed in the present case also.

3. The following order was passed in W.P.No.6084 of 2024:-

"Heard Sri Karthik Ramana Puttamreddy, learned counsel for the petitioner and Sri Shekhar, learned Government Pleader for Commercial Tax for the respondents.

2. The petitioner is challenging the impugned order dated 27.12.2023 passed under Section 73(9) of the C.G.S.T. Act 2017, along with the show cause notice dated 28.09.2023 under Section

73(1). The challenge is on the ground that the period of limitation of three (03) years with effect from 07.02.2020 for the assessment year 2017-18, i.e. the extended period vide notification dated 03.02.2020 also expired on 07.02.2023. The impugned show cause notice and the impugned order passed under Section 73 are beyond the period of limitation which cannot be sustained being without jurisdiction. He submits that though the notification dated 31.03.2023 has been issued under Section 168A of the Act, but that would also not cover/save the present case, for limitation, as the notification itself is beyond the powers of Section 168A. The notification dated 31.03.2023 is also under challenge in the present petition. His submission is that such notification could be issued under Section 168A, only when the actions could not be completed under the Act, by 'Force Majeure', but any such Force Majeure is not mentioned in the notification which necessitated or empowered for its issuance.

3. He further submits that the High Court of Gujarat in the case of M/s. SRSS Agro Private Limited vs. Union of India , High Court of Allahabad in the case of M/s. Graxiano Trasmissioni vs. Goods and Services Tax and others and High Court for the State of Telangana in the case of M/s. Perfetti Van Melle India Private Limited vs. Union of India and others , under the similar circumstances, have entertained the writ petitions and the impugned show cause notices or the orders, as the case may be in those cases, have been stayed.

4. Learned Government Pleader submits that the limitation of three (03) years is to be considered from the date of actual filing of annual returns. He also prays for time to file counter affidavit.

5. The matter requires consideration.

6. Let the counter affidavit be filed within a period of four (04) weeks.

7. If counter affidavit is filed, the reply/rejoinder affidavit, if any, may be filed within a further period of two (02) weeks.

8. List on 22.04.2024.

9. Prima facie, in view of the statutory provisions and the plain language, there appears to be force in the submissions of the learned counsel for the petitioner that it is the 'due date' and not the 'actual date' of filing of returns which is relevant for the limitation purposes.

10. Till the next date of listing, no coercive action would be taken pursuant to the impugned order."
 

4. Ms. Santhi Chandra, learned Junior Standing Counsel submits that the order is appealable under the statute and for the filing the appeal, the petitioner would be required to deposit the amount of 10% of the disputed amount. She further submits that in view thereof, the petitioner may be directed to make the payment of the amount out of the disputed amount under the impugned order.

5. We are of the view that as the ground of challenge is that initiation of the proceedings is beyond the period of limitation as also extended period as the show cause notice was not issued inconsonance in the provisions of Section 73(2) and as such the order is within the jurisdiction and no tax would be levied. No cause is made out at this stage for direction to the petitioner to make any deposit.

6. Let the counter affidavit be filed.

7. If counter affidavit is filed, the reply/rejoinder affidavit, if any, may be filed.

8. List on 22.04.2024.

9. Prima facie, in view of the statutory provisions and the plain language, there appears to be force in thoe submissions of the learned counsel for the petitioner that it is the 'due date' and not the 'actual date' of filing of returns which is relevant for the limitation purposes. 10. Till the next date of listing, no coercive action would be taken pursuant to the impugned order."
 

Sd/-
G. HELA NAIDU
ASSISTANT REGISTRAR

TRUE COPY

SECTION OFFICER

1. The Additional Commissioner of Central Tax, Visakhapatnam Central GST Commissionerate, GST Bhavan, Port Area, Visakhapatnam, Andhra Pradesh - 530 035.
2. The Superintendent of Central Tax, Srinagar CGST Range, Visakhapatnam North CGST Division, Door No. 10-5-22, Siripuram, Visakhapatnam, Andhra Pradesh - 530 003
3. The Assistant/Deputy Commissioner of state tax, Visakhapatnam II, State Taxes Complex, Visakhapatnam, Andhra Pradesh - 530040
4. The Secretary, Union of India, Ministry of Finance, North Block, New Delhi - 110001
5. The Secretary of Government (CT), State of Andhra Pradesh, Finance, Andhra Pradesh Central Board of Indirect Taxes and Customs, GST Policy Wing, New Delhi Rep by its Commissioner
6. The Commissioner, Central Board of Indirect Taxes and Customs, GST Policy Wing, New Delhi (Addressee Nos.1 to 6 by RPAD)
7. One CC to Sri. Anil Kumar Bezawada .Advocate [OPUC]
8. One CC to Sri Y.V.Anil Kumar, Standing Counsel [OPUC]
9. One CC to Ms. Santhi Chandra, Standing Counsel [OPUC]
10. Two spare

RNT.J & KM,J
 

DATED:04/04/2024

NOTE: LIST ON 22.04.2024

ORDER

WP.No.8291 of 2024