TaxTMI 
TaxTMI 
2024 (9) TMI 1543
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....Himanshu Tyagi and Mr Jitin Singhal, Advocates. Ms Vibhooti Malhotra, Mr Bhuvnesh Satija and Mr Udit Sharma, Advocates. Mr. Mohit Gupta, Advocate, Mr. Rajesh Mahna, Mr. Ramanand Roy, Mr. Mayank Routs, Ms Silky Wadhwa and Mr Shiva Narang, Advocates. Mr. Mayank Routs, and Ms Silky Wadhwa and Mr Shiva Narang, Advocates. For the Respondent : Mr Harpreet Singh, SSC, Ms Suhani Mathur, and Mr Jatin Kumar Gaur, Advocates. Mr Harpreet Singh, SSC, Ms Suhani Mathur, and Mr Jatin Kumar Gaur, Advocates. Mr. Anurag Ojha, Sr SC and Mr. Subham Kumar, Mr Kumar Abhishek, Mr Dipak Raj Singh, Advocates for R2 and R3. Mr R Ramchandran, Sr SC for R3., Mr. Rajeev Aggarwal, ASC Ms. Shaguftha Hameed Mr. Prateek Badhwar and Mr. Shubam Goel, Advocates for Department of Trade and Taxes Delhi, Mr Abhinav Kalia, and Mr Ajit Kumar Kalia, Advocates for R1 to R3. Mr.Anurag Ojha, Sr SC, Mr. Subham Kumar, Mr Kumar Abhishek, Mr Dipak and Mr Vipul Kumar, Advocates for R4. JUDGMENT VIBHU BAKHRU, J THE CONTROVERSY 1. The petitioners, in these batch of petitions, are taxpayers and are registered under the Central Goods and Services Tax Act, 2017 (hereafter the CGST Act) / Delhi Goods and Services Tax Act, ....
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....d 22.08.2024. 4. In view of the above, the only question that requires to be addressed is - whether Rule 86A of the Rules permits the Commissioner or an officer authorized by him, to block a taxpayer's ECL (Electronic Credit Ledger) by an amount exceeding the credit available at the time of issuance of the said order? SUBMISSIONS OF THE COUNSEL 5. The learned counsel appearing for the petitioners referred to the decision of the Gujarat High Court in Samay Alloys India Pvt. Ltd. v. State of Gujarat Neutral Citation No. 2022:GUJHC:6969-DB and the decision of the Telangana High Court in Laxmi Fine Chem vs Assistant Commissioner W.P.No.5256/2024 decided on 18.03.2024, which covers the controversy. 6. They submit that a taxpayer has a vested right in utilising the ITC as available in his ECL for discharge of its dues or in appropriate cases for seeking a refund of the same. Thus, the same could not be blocked or appropriated except by a specific statutory provision to the said effect. They contend that Rule 86A of the Rules is required to be strictly interpreted and a taxpayer's ECL can be blocked only to the extent as permitted under Rule 86A of the Rules. They submit that ....
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....Rules and the same did not restrict the power under Rule 86A only to the amount that is available in the taxpayer's ECL on the date of the issuance of the order. 10. Mr Rajiv Aggarwal, appearing for the Revenue in W.P.(C) Nos. 5395/2024 and 5397/2024, submitted that the language of Rule 86A of the Rules is clear and therefore, the same is required to be interpreted in its literal sense. He referred to the decision of the Supreme Court in Britannia Industries Ltd. v. CIT (2006) 1 SCC 646 in support of his contention. He also referred to the decision of the Constitution Bench of the Supreme Court in Commissioner of Customs (Import), Mumbai v. Dilip Kumar and Company & Ors. (2018) 9 SCC 1 and contended that the statute must be construed according to the intent of the legislature. He submitted that the intent of framing Rule 86A of the Rules was clearly to deprive the taxpayer of availing the ITC to the extent that such ITC was availed fraudulently or was ineligible. He submitted that the power to block the ITC is confined to sum equivalent to the ineligible and fraudulently availed ITC. 11. Next, he submitted that Rule 86A of the Rules use the words 'equivalent to such credit' i....
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....on the State to ensure that the taxpayer's right of the ITC is not impeded. However, conferring of the tax credits is in the nature of a 'privilege'. Although, a taxpayer may have beneficial interest in tax credit, it cannot be enforced against the State beyond the scheme of the Rules conferring such benefit. He referred to the decision of the Supreme Court in ALD Automotive Pvt. Ltd. v. Commercial Tax Officer now upgraded as Assistant Commissioner (CT) & Ors. (2019) 13 SCC 225 in support of his contention. 16. He submitted that the ITC must, thus, be viewed as an exemption and therefore, the principle governing exemption notifications would necessarily apply. He referred to the decision of the Supreme Court in Commissioner of Customs (Import), Mumbai v. Dilip Kumar and Company & Ors and submitted that where two views are possible in case of an exemption notification, the one which is favourable to the Revenue is required to be accepted. 17. He submitted that Rule 86A of the Rules must be interpreted by applying principles of purposive interpretation and therefore, Rule 86A of the Rules must be interpreted in a manner so as to further the remedy sought to be achieved. 18. ....
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....r. However, the tax is levied and collected at multiple stages of the supply chain. The GST is in the nature of a value added tax. It is chargeable on the supplies at multiple stages. However, a taxpayer is entitled to credit for the tax paid by him on the supplies received subject to the conditions as set out under the relevant statues. 23. Chapter V of the CGST Act and also the corresponding State and Union Territory legislations, contain provisions regarding ITC. For convenience and brevity, we shall refer to the provisions of the CGST Act for addressing the controversy in these petitions. It is relevant to refer to Sub-sections (1) and (2) of Section 16 of the CGST Act. The same are set out below: "16. Eligibility and conditions for taking input tax credit. - (1) Every registered person shall, subject to such conditions and restrictions as may be prescribed and in the manner specified in section 49, be entitled to take credit of input tax charged on any supply of goods or services or both to him which are used or intended to be used in the course or furtherance of his business and the said amount shall be credited to the electronic credit ledger of such per....
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....im along with interest payable under section 50, in such manner as may be prescribed: Provided also that the recipient shall be entitled to avail of the credit of input tax on payment made by him to the supplier of the amount towards the value of supply of goods or services or both along with tax payable thereon." 24. In terms of Section 16 (1) of the CGST Act, every registered person is entitled to take credit of the input tax charged on supply of goods or services or both, which is used or intended to be used in furtherance of his business. The said amounts are to be credited to the taxpayer's ECL. However, the entitlement is subject to the conditions and restrictions as may be prescribed and, in the manner, as posited under Section 49 of the CGST Act. Sub-section (2) of Section 16 of the CGST sets out the conditions, which if not complied with disentitles a registered person of any credit of input tax in respect of supply of goods or services or both. Sub-section (3) of Section 16 of the CGST Act disentitles a taxpayer for any ITC in respect of a depreciable capital goods where the registered person has availed of depreciation on the tax component of the value of suc....
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....ay be used for making payments of tax, interest, penalty and other amounts as may be payable under the CGST Act and the Rules made thereunder. 29. Sub-section (5) of Section 49 of the CGST Act prescribes the manner in which the amount of the ITC available in the ECL of a registered person can be used. Section 49A and 49B of the CGST Act prescribes the manner of utilization of the ITC and the order in which the ITC is required to be utilized. 30. A brief purview of the provisions of the CGST Act clearly indicate that a taxpayer is entitled to ITC only to the extent as provided under the CGST Act and subject to the stipulated conditions being satisfied. There is no cavil that if the conditions as set out under the CGST Act are not satisfied, the registered taxpayer would not be entitled to avail and utilize the ITC in respect of supplies received by it. The right to avail and utilize the ITC is thus a statutory right, which accrues by virtue of the provisions of the CGST Act and is subject to the conditions as set out therein. This right to avail and utilize the ITC is a valuable right. It is, undeniably, an asset, which vests with a taxpayer if the taxpayer satisfies all the s....
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....payer would have a substantive right to claim the same. The Supreme Court had referred to an earlier decision in Commissioner of Central Excise, Madras v. Home Ashok Leyland Ltd. (2007) 4 SCC 51 and held that the same was not applicable since all conditions for availing Cenvat credit in that case were satisfied. It is relevant to note that in that case the question that fell for consideration was whether the taxpayer could be denied the benefit of Rule 57-E of the Central Excise Rules, 1944 as amended with effect from 15.04.1987. The amended Rule stipulated that where the duty paid on any inputs in respect of which credit has been allowed under Rule 57-A, and if the said duty is varied subsequently due to any reason resulting in refund or if the duty is varied due to change in classification resulting in the recovery, then the credit allowed shall also be varied accordingly, by adjustment in the credit account. The High Court held that Rule 57-E as amended was clarificatory and therefore did not affect the right of the manufacturer to claim MODVAT credit for the duty paid on inputs. The Supreme Court upheld the said view. It held that Section 57-E is procedural and therefore did no....
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....utilised and some amount has to be paid by the manufacturer by way of cash. Prior to the 1995-96 Budget, the excise duty on inputs used in the manufacture of tractors and commercial vehicles varied from 15% to 25%, whereas the final products attracted excise duty of 10% or 15% only. The value addition was also not of such a magnitude that the excise duty required to be paid on final products could have exceeded the total input credit allowed. Since the excess credit could not have been utilised for payment of the excise duty on any other product, the unutilised credit was getting accumulated. The stand of the assessees is that they have utilised the facility of paying excise duty on the inputs and carried the credit towards excise duty payable on the finished products. For the purpose of utilisation of the credit, all vestitive (sic) facts or necessary incidents thereto have taken place prior to 16-3-1995 or utilisation of the finished products prior to 16-3-1995. Thus the assessees became entitled to take the credit of the input instantaneously once the input is received in the factory on the basis of the existing Scheme. Now by application of Rule 57-F(4-A), the credit a....
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....ction 37 of the Act does not enable the authorities concerned to make a rule which is impugned herein and, therefore, we may have no hesitation to hold that the Rule cannot be applied to the goods manufactured prior to 16-3-1995 on which duty had been paid and credit facility thereto has been availed of for the purpose of manufacture of further goods." 35. In a subsequent decision in the case of Collector of Central Excise, Pune and Ors. v. Dai Ichi Karkaria Ltd. & Ors. (1999) 7 SCC 448 the Supreme Court held that the credit which is validly taken is indefeasible. The relevant extract of the said decision is set out below: "18. It is clear from these rules, as we read them, that a manufacturer obtains credit for the excise duty paid on raw material to be used by him in the production of an excisable product immediately it makes the requisite declaration and obtains an acknowledgment thereof. It is entitled to use the credit at any time thereafter when making payment of excise duty on the excisable product. There is no provision in the rules which provides for a reversal of the credit by the Excise Authorities except where it has been illegally or irregularly taken, in w....
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.... "65. Our final conclusions may be summarized as under: - (I) The invocation of Rule 86A of the Rules for the purpose of blocking the input tax credit may be justified if the concerned authority or any other authority, empowered in law, is of the prima facie opinion based on some cogent materials that the ITC is sought to be availed based on fraudulent transactions like fake/bogus invoices etc. However, the subjective satisfaction should be based on some credible materials or information and also should be supported by supervening factor. It is not any and every material, howsoever vague and indefinite or distant remote or far-fetching, which would warrant the formation of the belief. (II) The power conferred upon the authority under Rule 86A of the Rules for blocking the ITC could be termed as a very drastic and far-reaching power. Such power should be used sparingly and only on subjective weighty grounds and reasons. (III) The power under Rule 86A of the Rules should neither be used as a tool to harass the assessee nor should it be used in a manner which may have an irreversible detrimental effect on the business of the assessee. (IV) T....
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....oted above, it was contended on behalf of the Revenue that ITC is in the nature of a concession in support of its contention that if two interpretations are possible, the one in favour of the Revenue ought to be accepted. Insofar as provisions relating to concessions and exemptions are concerned, it is settled that the same would be available only if the taxpayer discharges the burden of satisfying the necessary conditions for the same. To the said extent, the said principle may be applicable for conditions to be satisfied for availing ITC. In Jayam & Company v. Assistant Commissioner & Anr (2016) 15 SCC 125. the Supreme Court applied the said principle while considering the interpretation of Section 3 and Section 19 of the Tamil Nadu Value Added Tax, 2006 and held as under: "12. It is a trite law that whenever concession is given by statute or notification etc. the conditions thereof are to be strictly complied with in order to avail such concession. Thus, it is not the right of the "dealers" to get the benefit of ITC but it is a concession granted by virtue of Section19. As a fortiori, conditions specified in Section 10 must be fulfilled. In that hue, we find that Sectio....
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....es v. Union of India16, the Gujarat High Court had also observed that the provisions of Rule 86A of the Rules are reminiscent to Section 83 of the CGST Act. PRINCIPLES FOR INTERPRETATION OF RULE 86A 46. The provisions of Rule 86A of the Rules are required to be interpreted bearing in mind (a) that utilization of credit is a vested right albeit in respect of credit that has been validly accrued; (b) that the power under Rule 86A of the Rules is a drastic power and the same may have serious consequences for the taxpayer; and, (c) Rule 86A of the Rules concerns the power of the Commissioner, under defined circumstances, to interdict the taxpayer from accessing its valuable resource for discharging its dues or in given cases seeking a refund. It is not a provision, which imposes a condition to be satisfied by the taxpayer for availing the ITC. It is not a provision, which imposes a burden to be discharged by the taxpayer to be entitled to the ITC. 47. Insofar the principles regarding statutory interpretation are concerned, it is well settled that a statute must be interpreted as it reads. In CST v. Modi Sugar Mills Ltd. 1960 SCC OnLine SC 118 the Supreme Court had observed as ....
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....le even for the most imaginative legislature to forestall exhaustively situations and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the courts is only to expound and not to legislate. Legislation in a modern state is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the application of the legislation in hand may be called for and words chosen to communicate such indefinite referents are bound to be in many cases lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words the legislative intention i.e., the true or legal meaning of an enactment is derived by considering the meaning of the wo....
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....egislature." The only difference in the application of this dictum today and when it was said is that the "Recognised canons of construction" leave greater flexibility today, as will be seen below, for the use of matters outside the language of the text, where it is not clear, in order to discern the legislative intent. This principal effect of the rule requires to be considered in the light of the principal qualification, mentioned in the quotation from Lord Wensleydale above and considered further below. The distinction requires to be drawn between a result which appears absurd merely in the sense that it is hard to believe that the legislature would have wanted it and one which is absurd in the sense that it falsifies or produces inconsistency in the legislation, so that even looking at nothing but the literal meaning of the text as a whole a difficulty emerges. A mere anomaly, however, is not in itself sufficient to prevent the application of the literal meaning of an Act. See, for example, the following passage of the judgment of Peter Gibson L.J. in Slamon v Planchon - "I share the judge's unease at a construction which gives rise to th....
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....y in favour of those on whom the burden is sought to be imposed, and in revenue statutes in particular the subject is aided by presumptions such as that against double taxation, the question is primarily that of the "full and fair application of particular statutory language to particular facts as found. The desirability or the undesirability of one conclusion as compared with another cannot furnish a guide in reaching a decision." "So often, particularly in Tax Statutes, the spirit and intention of the Act... is subject to such uncertainty ... that it may provide a misleading rather than a reliable guide, and in any case affords a less certain guide than the construction of the words without a resort to conceptions of spirit and intention." The language used is not to be either stretched, in favour of the Crown or narrowed in favour of the taxpayer. So, where the court has to consider a provision expressly designed to prevent tax evasion, which uses unnecessarily wide language to achieve its purpose, that language will be given effect to even though the section is thereby made to apply to cases which it was probably never intended to catch. And where a statute referred to the surv....
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....ease to have effect after the expiry of a period of one year from the date of imposing such restriction." 54. We may now proceed to examine the plain language of Rule 86A of the Rules to examine its literal meaning and whether the same leads to an anomaly or any absurdity that requires this Court to take recourse to other principles of statutory interpretation. 55. The opening line of Sub-rule (1) of Rule 86A of the Rules stipulates that an order under Rule 86A (1) can be passed only if the Commissioner or any other officer authorized by him in this behalf has reasons to believe that the credit of input tax available in the ECL has been fraudulently availed or is ineligible. If the said condition is satisfied, the officer may after recording the reasons in writing, not allow debit of an amount equivalent to such credit. The relevant portions of Rule 86A (1) of the Rules are highlighted below: "86A. Conditions of use of amount available in electronic credit ledger.- (1) The Commissioner or an officer authorised by him in this behalf, not below the rank of an Assistant Commissioner, having reasons to believe that credit of input tax available in the electronic....
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....the ITC used in the past for payment of dues or which has been refunded. 60. Mr. Rajeev Aggarwal, learned counsel appearing for the Revenue submitted that there are three possibilities. First, that the ITC available in a taxpayer's ECL is wholly tainted, that is, that the Commissioner or the officer authorized by him has reasons to believe that the same has been fraudulently availed or is ineligible; second, that part of the available ITC is tainted and there is no suspicion that the remaining part have been validly availed; and third, that the available ITC is wholly untainted. He submitted that in all the three situations the expression "available" must not be co-related to the ITC, which is credited in the ECL at the time of the decision to block a debit from the ECL. He submitted that the ITC, which is wrongfully availed (fraudulently availed or is ineligible) may have been available at another point of time but that would not preclude the Commissioner or an officer authorized by him, to issue an order under Rule 86A (1) of the Rules. However, the amount in respect of which debit is not allowed is confined to the quantum of the ITC, which the Commissioner has reasons to beli....
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....as been", if done so, it clearly manifests that what was "available" in the electronic credit ledger at the relevant time has been fraudulently availed or is ineligible. This interpretation alone would be in consonance with the object of the Act and Rules. One of the objectives of the CGST Act is to incentivize tax compliance by tax payers. An interpretation of rule 86A which would render the object of the enactment is to be avoided." [Emphasis added] 62. We are, respectfully, unable to concur with the aforesaid interpretation for the reason that it is not in conformity with the opening line of Rule 86A (1) of the Rules. The words "credit of input tax available in the electronic credit ledger" plainly refers to the credit, which is at the given point of time available in the taxpayer's ECL. If the same had already been utilized in payment of tax, penalties or other dues, or has been refunded, the same would not be available in the ECL. 63. It is relevant to understand the meaning of the words, "availed", "available in the electronic credit ledger", "used" and "utilized" as used in the CGST Act and the Rules. 64. Section 41 of the CGST Act contains provisions regar....
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....Section 49 (4), Section 49A and Section 49B of the CGST Act are reproduced below: "Section 49. Payment of tax, interest, penalty and other amounts.- *** *** *** (4) The amount available in the electronic credit ledger may be used for making any payment towards output tax under this Act or under the Integrated Goods and Services Tax Act in such manner and subject to such conditions and restrictions within such time as may be prescribed. 49A. Utilisation of input tax credit subject to certain conditions.- Notwithstanding anything contained in section 49, the input tax credit on account of central tax, State tax or Union territory tax shall be utilised towards payment of integrated tax, central tax, State tax or Union territory tax, as the case may be, only after the input tax credit available on account of integrated tax has first been utilised fully towards such payment.] 49B. Order of utilisation of input tax credit.- Notwithstanding anything contained in this Chapter and subject to the provisions of clause (e) and clause (f) of sub-section (5) of section 49, the Government may, on the recommendations of the Council, prescribe the order ....
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....eeze the ECL to the extent of inadmissible ITC by disallowing debit of an amount equivalent to the inadmissible ITC. However, such an order can be passed only if ITC is available in the taxpayer's ECL and the concerned officer has reasons to believe that the same has been fraudulently availed or is ineligible for the reasons as set out in Clauses (a) to (d) of Rule 86A of the Rules. 72. Paragraphs 3.3.2 and 3.4.3 of the Circular (Circular No. CBEC-20/16/05/2021-GST) dated 02.11.2021 issued by the CBIC and referred to by the learned counsel for the Revenue are relevant and the same are set out below: "3.3.2 The amount disallowed for debit from electronic credit ledger should not be more than the amount of input tax credit which is believed to have been fraudulently availed or is ineligible, as per the conditions / grounds mentioned in sub-rule (1) of rule 86A. *** *** *** 3.4.3 As the restriction on behalf of electronic credit ledger under sub-rule (1) of rule 86A is resorted to protect the interests of the revenue and the said action also has bearing on the working capital of the registered person, it should be endeavored that in all such cases, the in....
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.... it transpires that the power conferred under Rule 86A can be exercised by the Commissioner or an officer authorised by him (not below the rank of an Assistant Commissioner). Further the powers can be exercised if the following cumulative conditions are satisfied. i) Credit of input tax should be available in the electronic credit ledger, ii) The Commissioner of an officer authorised by him should have reason to believe that such credit has been fraudulently availed or is ineligible, iii) The reason to believe are be recorded in writing. 30. In case the above referred conditions are satisfied, a proper officer can invoke Rule 86A. Upon invocation of Rule 86A, a proper officer can - a) Disallow debit from the electronic credit ledger for discharge of any liability under section 49 or for claim of any refund of any unutilised amount. b) Such restriction should be for an amount equivalent to the amount claimed to have been fraudulently availed or is ineligible 31. Rule 86A (1) of CGST Rules, 2017 is broadly divided into two parts. The opening part of the rule deals with the conditions required to be fulfilled in order to i....
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....available, then the authorities concerned in terms of provisions of Rule 86 (A) may for reasons to be recorded in writing not allowed the credit of the said amount available equivalent to such credit. However, there is no power conferred upon the authorities for block of the credit to be availed by the petitioner in future." 76. We respectfully concur with the views of the Division Bench of the Gujarat High Court in Samay Alloys India (P) Ltd. v. State of Gujarat and the Division Bench of the Telangana High Court in Laxmi Fine Chem v. Assistant Commissioner. 77. Since there is no ambiguity in the plain language of Rule 86A (1) of the Rules, it is not necessary to resort to the rule of purposive interpretation. However, we find that the aforesaid interpretation is also in conformity with the legislative scheme of the CGST Act and the Rules. 78. It is necessary to bear in mind that not allowing debit of an ITC is a temporary measure, which is imposed only if the conditions set out in Rule 86A of the Rules are satisfied. It is not necessary for any proceedings to be initiated against the taxpayer prior to passing an order under Rule 86A (1) of the Rules. The said order can be....
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....of government revenue, it is necessary to do so, he may pass an order under Section 83 (1) of the CGST Act, provisionally attaching any property including the bank account of a taxpayer. This is also one of the measures that may be resorted to pending conclusion of the proceedings. 82. Rule 86A (1) of the Rules does not contemplate an order, the effect of which is to require a taxpayer to replenish his ECL with valid availment of ITC, to the extent of ITC used in the past, which the Commissioner or an officer authorized by him has reasons to believe, was fraudulently availed or was ineligible. Such an interpretation would in effect amount to construe an order under Rule 86A (1) of the Rules as an order for recovery of tax. This is obvious because the taxpayer would now have to incur a larger cash outflow for payment of taxes as he would be denied utilization of validly availed ITC, which he would require to accumulate to compensate for the ITC availed and utilized which the Commissioner or an officer authorized by him, has reasons to believe was fraudulently availed or was ineligible. CONCLUSION 83. In view of the above, the petitions are allowed and the orders impugned in....