2022 (4) TMI 1399

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....na Prasad, learned counsel ORDER AS PER VIVEK RUSIA, J: The petitioner has filed the present writ petition under Article 226 of the Constitution of India being aggrieved by the reversal of Input Tax Credit (ITP) of Rs.39,93,286/- from DRC-03 dated 28.01.2020 (Annexure-P/1) followed by demand notice dated 18.06.2021 passed by respondents No.2 & 3. 02. The facts of the case in short are as under: - 2.1. The petitioner is a partnership firm engaged in the business of manufacturing wholesale beedi. The petitioner had declared the ITC pertaining to the financial year 2017 - 18 and 2018 - 2019 by filing Form GSTR 3B prescribed under Section 39 of Central Goods & Service Tax Act, 2017 (in short CGST Act). Admittedly, the aforesaid f....

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....cedural in nature, and respondents should not take away the right of filing of return with a late fee. There should be a scope of application of mind and consideration of non-filing of return within time while applying Section 16(4) of the CGST Act. The provision of Section 16(4) should not defeat a substantial claim of ITC which is otherwise allowable under the provisions CGST Act. 04. It is further submitted that the petitioner should not be relegated to the adjudicating authority as well as the appellate authority as admittedly the petitioner has availed the Input Credit, but there was a delay in submission of the return. Hence, a writ of mandamus be issued to the respondents directing them to permit the petitioner to submit the retur....

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....ondents No.2 & 3 submits that the present writ petition is not maintainable under Article 226 of the Constitution of India as the petitioner is having an alternative and efficacious remedy by filing an appeal before the appellate authority. It is further submitted that during the pendency of the writ petition, a show-cause notice dated 17.02.2022 has been issued to the petitioner by the Deputy Commissioner (Prev.) CGST & Central Excise, Ujjain. The petitioner, to the reasons best known to him, has not challenged the validity of the show-cause notice. Now the petitioner is required to approach the competent authority along with a reply to the show-cause notice. It is further submitted that the petitioner is not challenging the constitutional....