Shree Shyam Steel Vs the Union of India and 5 Ors.

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GAHC010046732024

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/1315/2024

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SHREE SHYAM STEEL

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SAWKUCHI, LOKHRA ROAD, KALAPAHAR, KAMRUP METROPOLITAN, GUWAHATI-781034, ASSAM, REPRESENTED THROUGH THEIR AUTHORIZED SIGNATORY - MR. MAHESH KUMAR KHATUWALA, AGED ABOUT 52 YEARS, S/O SOHAN LAL KHATUWALA

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VERSUS

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THE UNION OF INDIA AND 5 ORS.

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REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI-110001

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2:THE PRINCIPAL COMMISSIONER CENTRAL GOODS AND SERVICE TAX AND CENTRAL EXCISE GST BHAWAN KEDAR ROAD GUWAHATI-781001

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3:THE ASSISTANT COMMISSIONER CGST GUWAHATI DIVISION-I GST BHAWAN KEDAR ROAD GUWAHATI-781001

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4:THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS 1ST FLOOR TOWER NBCC PLAZA 1 SECTOR-5 PUSHP VIHAR

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NEW DELHI-110017

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5:THE CHAIRPERSON GOODS AND SERVICES TAX COUNCIL 5TH FLOOR TOWER-II JEEVAN BHARTI BUILDING JANPATH ROAD CONNAUGHT PLACE NEW DELHI-11000

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Advocate for the Petitioner : MR. P K SARAF, MR. S S GUPTA,MR. D SARAF

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Advocate for the Respondent : DY.S.G.I., SC, GST

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BEFORE

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HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

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ORDER

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Date : 03-09-2025

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Heard Mr. D. Saraf, learned counsel for the petitioner. Also heard Mr. S. C. Keyal,

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learned standing counsel, Central Goods and Services Tax Department, appearing on behalf of the respondents.

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The petitioner, in the present proceeding, has presented a challenge to an order, dated 28-12-2023, rejecting his claim for availment of the Input Tax Credit(ITC) amounting to Rs. 1,60,23,021/-, for the period 2017-18, on the ground that the returns i.e. GSTR-3(B) returns for the said financial year, was filed on 04-03-2019, 20-05-2019 and 20-05-2019, after the due date for filing of such claim had passed and accordingly, applying the provisions of Section 16(4) of the Central Goods and Services Tax(CGST) Act, 2017; the said claim was so rejected.

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At this stage, it is to be noted that the provisions of Section 16 of the Central

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Goods and Services Tax(CGST) Act, 2017, as it stood before its amendment, provides for

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the eligibility conditions for taking the Input Tax Credit(ITC) for the registered persons.

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Section 16(4), thereof, provides for, as under:

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“4. A registered person shall not be entitled to take input tax credit in respect of any invoice or debit note for supply of goods or services or both after the [thirtieth day of November] following the end of financial year to which such invoice or [xxx] debit note pertains or furnishing of the relevant annual return, whichever is earlier: [PROVIDED that the registered person shall be entitled to take input tax credit after the due date of furnishing of the return under Section 39 for the month of September, 2018 till the due date of furnishing of the return under the said section for the month of March, 2019 in respect of any invoice or invoice relating to such debit note for supply of goods or services or both made during the financial year 2017-18, the details of which have been uploaded by the supplier under sub-Section (1) of Section 37 till the due date for furnishing the details under sub-section (1) of the said section for the month of March, 2019.]”

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An amendment was effected to the Finance Act by way of Finance (No.2) Act of

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2024 and Sub-Sections (5) & (6) were incorporated in the provisions of Section 16 of the Central Goods and Services Tax (CGST) Act, 2017.

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The provisions of Sub-Sections (5) & (6), of Section 16 as incorporated vide the said amendment; being relevant, is extracted here-in-below:

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“(5) Notwithstanding anything contained in sub-section (4), in respect of an invoice or debit note for supply of goods or services or both pertaining to the Financial Years 2017-18, 2018-19, 2019-20 and 2020-21, the registered person shall be entitled to take input tax credit in any return under Section 39 which is filed upto the thirtieth day of November, 2021.

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(6) Where registration of a registered person is cancelled under section 29 and subsequently the cancellation of registration is revoked by any order, either under section 30 or pursuant to any order made by the Appellate Authority or the Appellate Tribunal or Court and where availment of input tax credit in respect of an invoice or debit note was not restricted under sub-section (4) on the date of order of cancellation of registration, the said person shall be entitled to take the input tax credit in respect of such invoice or debit note for supply of goods or services or

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both, in a return under Section 39,-

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(i) filed upto thirtieth day of November following the financial year to which such invoice or debit note pertains or furnishing of the relevant annual return, whichever is earlier; or

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(ii) for the period from the date of cancellation of registration or the effective date of cancellation of registration, as the case may be, till the date of order of revocation of cancelation of registration, where such return is filed within thirty days from the date of order of revocation of cancellation of registration.”

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The said amendment was so notified by the Central Government in the Finance Department, vide Notification No. 17/2024-Central Tax dated 27-09-2024 with retrospective effect, i.e. w.e.f. 01-07-2017.

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A careful perusal of the provisions of Sub-Sections (5) & (6) of Section 16 reveals that, notwithstanding, anything contained under Section 16(4) of the Central Goods and Services Tax(CGST) Act, 2017, in respect of any invoice or debit note for supply of goods or services, or, both pertaining to financial years 2017-18, 2018-19, 2019-20 and 202021, the registered person shall be entitled to take Input Tax Credit(ITC) in any return under Section 39 which is filed upto 30th day of November, 2021.

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A conjoint reading of these amended provisions further reveals that the challenge made in the present proceeding before this Court, is no longer required to be addressed in view of the amendments brought in by the Finance(No.2) Act, 2024.

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Accordingly, in view of the amendments brought in, it is evident that the petitioner, herein, is entitled to avail the benefit of Input Tax Credit (ITC) for the relevant period.

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Mr. Keyal, learned standing counsel, Central Goods and Services Tax Department, appearing for the respondents, has fairly submitted that in view of the amendments

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brought in by the Finance(No.2) Act, 2024 and in view of the Notification No.17/2024Central Tax, dated 27-09-2024; the amendments brought in to Section 16, thereof, have already taken effect with retrospective effect i.e. w.e.f. 01-07-2017.

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As such, in view of the amendments brought in, the petitioner, herein, is entitled to get the claim of the Input Tax Credit (ITC) subject to the conditions prescribed in the newly inserted Sections 16(5) and 16(6) of the Central Goods and Services Tax(CGST) Act, 2017[inserted vide Finance (No.2) Act, 2024].

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In view of the amendments brought into the statute by the Finance (No.2) Act, 2024 and which amendments have been given retrospective effect from 01-07-2017; the proceeding initiated against the petitioner, herein, by way of serving a Demand-cum-Show Cause Notice, dated 05-12-2022, has been rendered redundant.

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Accordingly, in view of the amended provisions of Section 16 of the Central Goods and Services Tax(CGST) Act, 2017, more particularly, incorporation of Sub-Section (5), therein; this Court, proceeds to set aside the impugned order, dated 25-12-2023. Consequently, the Demand-cum-Show Cause Notice, dated 05-12-2022, also stands set aside.

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Having interfered with the order, dated 26-04-2024; the matter is remanded back to the Assistant Commissioner, Central Goods and Services Tax, Guwahati Division-1, i.e. respondent No. 3, for issuing a fresh Show Cause Notice to the petitioner, herein, and thereafter, to take the matter to its logical conclusion after affording to the petitioner, herein, a due opportunity of hearing.

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With the above directions and observations, this writ petition accordingly stands

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disposed of.

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JUDGE

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Comparing Assistant

Shree Shyam Steel v. the Union of India and 5 Ors.

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Shree Shyam Steel v. the Union of India and 5 Ors.

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