TaxTMI 
TaxTMI 
2023 (2) TMI 1088
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....s on 30th June 2017, which has been rejected by the respondent authority merely on the instance of Audit Observation by Accountant general, Jharkhand Ranchi on vide I.R. 48/2018-19. (iii) For issuance of an appropriate writ or a writ in the nature of certiorari for quashing and setting aside the ex-parte revision order dated 30.07.2021 (Annexure-10) passed under section 108 of the Jharkhand Goods and Services Tax Act, 2017, at its preliminary stage itself and even without forming its independent reasoning for disallowing the amount as transited in TRAN-1 and simply copy paste the audit observation and even without giving an opportunity of hearing to the petitioner passed the order and consequential Demand Notice in Form GST APL-04 being No. 694 dated 31.07.2021 under rule 109 B, 113(1) and 115 of the Jharkhand Goods and Services Tax Rules, 2017 (Annexure-11) raising a total demand of Rs. 1,60,02,196.69/- including penalty and interest therein. (iv) For issuance of an appropriate writ or a writ in the nature of certiorari for quashing and setting aside the Audit Observation by Accountant General, Jharkhand Ranchi on vide I.R. 48/2018-19 para 11: Incorrect claim/availment of tran....
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....oceeding. In compliance, the petitioner duly appeared wherein he was informed that pursuant to audit objection (Annexure-13) revisional proceeding has been initiated against the petitioner for wrongly availing the TDS amount in its TRAN-1 not being ITC. On 15.02.2021 the petitioner filed its written statement raising a preliminary objection with respect to audit objections and other grounds. Without considering the preliminary objection raised by the petitioner and ground mentioned therein and even without granting any opportunity of hearing, Joint Commissioner of State Tax (Respondent No.2) passed the Ex-Parte impugned order dated 30.07.2021 rejecting the TRAN-1 and directing the petitioner to refund excess ITC claimed amounting to Rs.1,19,41,937.86/- along with penalty under section 73(9)@10% and interest @24%, total amounting Rs. 1,60,02,196.69/-. 4. Ms. Amrita Sinha, learned counsel for the petitioner submits that the present case of the petitioner is squarely covered by the Judgment & order of this Court dated 09.01.2023 passed in W.P.(T) No.2404/2020, namely M/s Subhash Singh Choudhry & other analogous matter. She submits that in the present writ petition the issue is same; ....
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....pany in DRC-07 for Rs.1,81,577.15 each for SGST & CGST and revised DRC-08 was served on the company. However, after receipt of the I.R. by Accountant General proceeding was initiated on 03.04.2019 by the DCST Adityapur. On perusal of the audit observation and examination of the assessment records of the Company and upon information received by the DCST Adityapur Circle prima facie it appeared that the order dated 29.01.2019 passed by the adjudicating authority required to be revised. Therefore, it was decided to initiate proceeding under section 108 of the JGST Act, 2017 for Revision of the order passed by the DCST Adityapur Circle. He also submits that in revision proceeding notice was issued under section 108 dated 05.02.2021 and 06.03.2021 to the Petitioner Company as well as DCST, Adityapur Circle. He further submits that Revisional authority after going through the entire records of the case and also the judgment of the Bombay High Court relied upon by the petitioner-company revised the order under section 108 of the JGST Act, 2017 holding that the Kiran Gems Private Limited case related to Section 72A of the Finance Act 1994 and in said act there was a provision of CERA (Cen....
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....on of respondent Authority denying the migration of TDS amount and consequently, levying interest and penalty thereupon is not sustainable in the eye of law and has quashed impugned order and the demand Notice. For brevity para 16 to 18 is quoted hereinbelow: "16. It is also a well settled principal of law that one provision under a statute cannot be used to defeat another and it should not be lightly assumed that what legislature has given with one hand has taken away the same with other. If we give a wider interpretation to the proviso as suggested by the Respondent, the use of the words 'entry tax' under Section 140(1) of the JGST Act would be rendered nugatory as admittedly by virtue of 101st Constitutional Amendment, Entry 52 of List II has been deleted and, under no circumstances, entry tax would have been available as input tax credit under the GST Regime. Thus, we are of the opinion that proviso Clause (i) to Section 140(1) of the JGST Act only restricts migration of such amount of credit where there is an express prohibition in respect of such transaction of claiming input tax credit under Section 17(5) of the GST Act. 17. We have also carefully examined Rule 117 of th....