2023 (12) TMI 1287

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....r V Jayanandakumar, a very eminent Counsel of this Court, for the petitioner, Mr P R Sreejith, learned Standing Counsel for the GST Department, and Ms Rasmitha Ramachandran, learned Government Pleader for the State. 2. The present writ petition under Article 226 of the Constitution of India has been filed by the petitioner questioning the Ext.P6 order, whereby the petitioner's claim for treating the TDS on outward supply has not been treated as the input tax credit for the purposes of giving transitional credit to the petitioner to an extent of Rs. 59,05,352/-. 3. The petitioner was registered as a dealer under the provisions of the Kerala Value Added Tax Act, and on the advent of the GST regime, transitioned to the provisions of CGST....

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....rged on any supply of goods or services or both made to him and includes- (a) the integrated goods and services tax charged on import of goods; (b) the tax payable under the provisions of sub-sections (3) and (4) of section 9; (c) the tax payable under the provisions of sub-sections (3) and (4) of section 5 of the Integrated Goods and Services Tax Act; (d) the tax payable under the provisions of sub-sections (3) and (4) of section 9 of the respective State Goods and Services Tax Act; or (e) the tax payable under the provisions of sub-sections (3) and (4) of section 7 of the Union Territory Goods and Services Tax Act, but does not include the tax paid under the composition levy; (63) "inp....

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.... speaks about tax paid as VAT, however, the proviso restricts the credit only in respect of the input tax credit for which TRAN-1 has been provided under the GST Rules. 3.4 Rule 117 of the GST Rules provides for the claim of input tax credit, which would read as under: "117. Tax or duty credit carried forward under any existing law or on goods held in stock on the appointed day.- (1) Every registered person entitled to take credit of input tax under section 140 shall, within ninety days of the appointed day, submit a declaration electronically in FORM GST TRAN-1, duly signed, on the common portal specifying therein, separately, the amount of input tax credit of eligible duties and taxes, as defined in Explanation 2 to s....

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.... existing laws till the appointed day; (b) in the case of a claim under sub-section (3) or clause(b) of sub-section (4) or subsection (6) or sub-section (8) of section 140, specify separately the details of stock held on the appointed day; (c) in the case of a claim under sub-section (5) of section 140, furnish the following details, namely:- (i) the name of the supplier, serial number and date of issue of the invoice by the supplier or any document on the basis of which credit of input tax was admissible under the existing law; (ii) the description and value of the goods or services; (iii) the quantity in case of goods and the unit or unit quantity code thereof; (iv) the amount of eligi....

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....ent. and twenty per cent. respectively of the said tax; (iii) The scheme shall be available for six tax periods from the appointed date. (b) The credit of central tax shall be availed subject to satisfying the following conditions, namely:- (i) such goods were not unconditionally exempt from the whole of the duty of excise specified in the First Schedule to the Central Excise Tariff Act, 1985 or were not nil rated in the said Schedule; (ii) the document for procurement of such goods is available with the registered person; (iii) The registered person availing of this scheme and having furnished the details of stock held by him in accordance with the provisions of clause (b) of sub-rule (2), submi....

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....h Choudhary and M/s Bhilai Engineering Corporation Ltd v. The State of Jharkhand, Joint Commissioner of State Tax (Administration) 2023 (1) TMI 1023 Jharkhand High Court also does not take into account the definition of 'input tax' and 'input tax credit'. 4.2 Section 17(5) which has been placed reliance does not have applicability in respect of the claim of input tax transition of credit in TRAN-1. Section 17(5) is only in respect of non-availability of the input tax credit in certain transactions, it has nothing to do with the claim of input tax credit on eligible transaction. 5. Therefore, I am of the view that the TDS which is tax deducted by the contractor on execution of the contract of the petitioner, cannot be said to be input ....