2022 (11) TMI 689 - HC - VAT and Sales Tax

Gujarat HC grants certiorari, declares CGST/GGST Act provision unconstitutional. Stay on implementation order.

The Gujarat High Court granted the petitioner's request for a writ of certiorari to quash the impugned order under Section 73 dated 23.05.2022 issued by ... Input tax credit - non-quoting of Section 16(2)(c) of the CGST Act in the show cause notice - It is the case of the petitioner that all conditions prescribed under Section 16 of the CGST/GGST Act are fulfilled and the claim is made of the Input Tax Credit (ITC) on the supplies by the petitioner - HELD THAT:- Issue Notice returnable on 24.11.2022. Learned Assistant Government Pleader waives service of notice for and on behalf of respondent no.3. Qua rest of the respondents, over and above the regular mode of service, service through speed post is permitted. Issues involved:1. Challenge to the impugned order under Section 73 dated 23.05.2022 issued by respondent no. 05.2. Declaration of Section 16(2)(c) of CGST/GGST Act, 2017 as ultra vires and violative of the Constitution.3. Stay on the implementation of the impugned order under Section 73 of the CGST/GGST Act dated 23.05.2022.4. Seeking appropriate writs, orders, directions, or reliefs as deemed fit by the Court.Issue 1: Challenge to the impugned order under Section 73 dated 23.05.2022:The petitioner seeks a writ of certiorari to quash the impugned order under Section 73 dated 23.05.2022 issued by respondent no. 05. The petitioner contends that all conditions under Section 16 of the CGST/GGST Act have been met, and Input Tax Credit (ITC) on supplies has been claimed. However, due to an error in reporting by M/s. Bhilosa Industries Private Limited, the supply did not reflect in the petitioner's return in Form GSTR-2A. Despite M/s. Bhilosa Industries Private Limited acknowledging the mistake and providing a certificate, a show cause notice was issued on 11.04.2022, questioning the petitioner's purchase of goods without mentioning Section 16(2)(c) of the CGST Act, which is now being challenged.Issue 2: Declaration of Section 16(2)(c) of CGST/GGST Act, 2017 as ultra vires:The petitioner seeks a declaration that Section 16(2)(c) of the CGST/GGST Act, 2017 is ultra vires and violates Articles 14, 19(1)(g), and 300A of the Constitution. The petitioner argues that the provision should be struck down as it is alleged to be dehors the Act. Alternatively, the petitioner requests the Court to read down Section 16(2)(c) by interpreting that ITC will only be denied in cases of collusive and sham transactions. This issue raises significant constitutional implications regarding the validity of the statutory provision in question.Issue 3: Stay on the implementation of the impugned order under Section 73 dated 23.05.2022:As an ad-interim relief, the petitioner seeks a writ or direction to stay the implementation of the impugned order under Section 73 of the CGST/GGST Act dated 23.05.2022. The petitioner requests that no coercive action be taken against them until the final disposal of the petition. This issue involves considerations of fairness and preventing potential harm to the petitioner pending the resolution of the legal proceedings.Issue 4: Seeking appropriate writs, orders, directions, or reliefs:The petitioner requests the Court to issue any order, direction, writ, or relief deemed fit and proper in the circumstances of the case and in the interest of justice. This broad issue encompasses the petitioner's plea for comprehensive judicial remedies beyond the specific challenges raised in the petition. The petitioner expresses willingness to abide by the Court's decision and seeks justice through appropriate legal measures.This detailed analysis of the judgment before the Gujarat High Court highlights the various issues raised by the petitioner concerning the impugned order, the constitutional validity of a statutory provision, the request for a stay on implementation, and the broader plea for suitable judicial remedies. The legal arguments and factual circumstances presented in the petition underscore the complexity and significance of the matters under consideration by the Court.