M/S. Vijaykumar Bhogilal vs The Union Of India on 20 December, 2024

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Gujarat High Court

M/S. Vijaykumar Bhogilal vs The Union Of India on 20 December, 2024

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

                                                                                                                  NEUTRAL CITATION




                            C/SCA/12840/2024                                        ORDER DATED: 20/12/2024

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                    R/SPECIAL CIVIL APPLICATION NO. 12840 of 2024

                      ===============================================================
                                                  M/S. VIJAYKUMAR BHOGILAL
                                                             Versus
                                                  THE UNION OF INDIA & ORS.
                      ===============================================================
                      Appearance:
                      MR LOVE R SHARMA(11959) for the Petitioner(s) No. 1
                      MS SHRUNJAL SHAH, AGP for the Respondent(s) No. 2,3
                      NIDHI T VYAS(7772) for the Respondent(s) No. 1
                      NOTICE SERVED for the Respondent(s) No. 4
                      ===============================================================

                        CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
                              and
                              HONOURABLE MR.JUSTICE D.N.RAY

                                                           Date : 20/12/2024

                                                            ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)

1. Heard learned advocate Mr.Bharat

Raichandani through video conference with

learned advocate Mr.Rithik Jain for learned

advocate Mr.Love R. Sharma for the petitioner,

learned advocate Ms.Nidhi T. Vyas for the

respondent No.1 and learned Assistant

Government Pleader Ms.Shrunjal Shah for the

respondent Nos.2 and 3.

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2. By this petition under Articles 226 and

227 of the Constitution of India, the

petitioner has prayed for the following

reliefs :

“a) that this Hon’ble Court be pleased
to issue a Writ of Certiorari or any
other writ, order or direction under
Article 226 of the Constitution of
India calling for the records
pertaining to the Petitioner’s case and
after going into the validity and
legality thereof, set aside and quash
impugned Order dated 04.04.2024
(received on 12.04.2024) (Annexure-1),
to the extent it is against the
Petitioner;

b) that this Hon’ble Court be pleased
to issue a Writ of Mandamus or any
other appropriate Writ/ order/
direction under Article 226 of the
Constitution of India to stay the
operation of the impugned order
(Annexure-1) till the pendency of the

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present petition;

c) that this Hon’ble Court be pleased
to issue a Writ of Certiorari/Mandamus
or a writ in the nature of
Certiorari/Mandamus or any other writ,
order or direction under Article 226 of
the Constitution of India calling for
the records pertaining to the
Petitioner’s case and after going into
the validity and legality of the
provisions, invoke the doctrine of
necessity and allow the amendment of
GSTR 3B returns in peculiar facts and
circumstances of this case;

d) that this Hon’ble Court be pleased
to issue a Writ of Certiorari/Mandamus
or a writ in the nature of
Certiorari/Mandamus or any other writ,
order or direction under Article 226 of
the Constitution of India calling for
the records pertaining to the
Petitioner’s case and after going into
the validity and legality of the
provisions, direct the Respondent No. 3

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to accept the letter for the
rectification of the error dated
10.06.2024;

e) for interim and ad-interim reliefs
in terms of prayer (a), (b), (c) and

(d) above;

f) for costs of this Petition;

g) for such and other reliefs as the
nature and circumstances of the case
may require;

h) pass an ad-interim relief to the
petitioner as prayed mentioned at Para
12 of the main petition;

i) to set aside the order dated
04.04.2024 (received on 12.04.2024)
(Annexure-1) and order dated 09.10.2024
(received on 17.10.2024) (Annexure –

16);

j) for such and other reliefs as the
nature and circumstances of the case
may require.”

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3.1. Learned advocate Mr.Bharat Raichandani

for the petitioner submitted that the main

controversy in this petition pertains to the

Order-in-Original passed by the respondent-

Authority in view of the inadvertent error

committed by the consultant of the petitioner

at the time of filing of the returns in Form

GSTR-3B which was later on rectified while

filing the returns in Form GSTR-9 as well as

in Form GSTR-3B of March, 2020 for the period

2018-19.

3.2. It was submitted that the petitioner

had also preferred Miscellaneous Application

for rectification of the mistake arising out

of the Order-in-Original dated 04.04.2024

under Section 161 of the Gujarat Goods and

Services Tax Act, 2017 (for short ‘the GST

Act).

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3.3. It was further submitted that at the

relevant point of time, there was no amendment

by insertion of Sections 16(5) and 16(6) of

the GST Act and therefore, the petitioner had

no alternative remedy but to prefer the

Rectification Application to rectify the error

committed by the consultant so as to point out

that there is a reconciliation of Form GSTR-1

and Form GSTR-3B and no addition can be made

under Section 16(4) of the GST Act on account

of the difference between both the returns.

4. Learned advocates for the respective

respondents submitted that if the petitioner

makes an application under Sections 16(5) and

16(6) of the GST Act, the same shall be

considered in accordance with law.

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5. The provisions of Sections 16(5) and 16(6)

of the GST Act which have been inserted by the

Finance Act (No.2), 2024 dated 16.08.2024 with

effect from 01.07.2017 read as under :

“16(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.

16(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

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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 both, in a
return under section 39,-

(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

(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
cancellation of registration, where
such return is filed within thirty days
from the date of order of revocation of
cancellation of registration, whichever
is later.”

6. In view of the above provisions, it would

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be in the interest of justice to remand the

matter back to the respondent-Authority so as

to enable the petitioner to file appropriate

application for entitlement to take Input Tax

Credit in the returns filed under Section 39

of the GST Act as the returns are already

filed by the petitioner within the prescribed

time limit of 30th November, 2021.

7. In view of the above, the impugned Order-

in-Original dated 04.04.2024 passed in Form

GSTR DRC-07 is hereby quashed and set aside

and the matter is remanded back to the

respondent-Assessing Officer to pass afresh

de-novo order after considering the

application to be filed by the petitioner as

per the provisions of Sections 16(5) and 16(6)

of the GST Act in accordance with law. Such

exercise shall be completed within a period of

twelve weeks from the date of receipt of the

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copy of this order.

8. The petition is accordingly disposed of.

No orders as to cost.

(BHARGAV D. KARIA, J)

(D.N.RAY,J)
PALAK

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