TaxTMI 
TaxTMI 
2024 (11) TMI 39
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....f credits used for exempted services under section 17 (2) of the CGST Act and claiming refund of taxes on inputs and input services under the first proviso to section 54 (3) of the CGST Act and/or; (d) hold that right to avail Input Tax Credit is an indefeasible right under Article 300A of the Constitution and cannot be restricted on the basis of taxability of output service; (e) uphold that the benefit of taxes paid on both inputs and input services should be eligible to the petitioner in light of the decision of this Hon'ble Court in case of VKC Footsteps India Pvt. Ltd vs. UOI and others [TS-585-HC-2020 (Guj.)] (f) issue an appropriate order or direction permitting the petitioner to apply for registration and file GST returns with effect from 1st July 2017 to avail Input Tax Credit; and or (g) grant interim/ad interim reliefs as prayed for in clause (e) above and/or; (h) Grant such further reliefs as this Hon'ble Court may deem fit and proper; 2. Brief facts of the case are that the petitioner is providing exempted education services but, at the same time, the petitioner uses various taxable inputs, capital goods and input services and GST on such inputs, capital good....
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....mendations of the Council: Provided further that no refund of unutilised input tax credit shall be allowed in cases where the goods exported out of India are subjected to export duty: Provided also that no refund of input tax credit shall be allowed, if the supplier of goods or services or both avails of drawback in respect of central tax or claims refund of the integrated tax paid on such supplies." 6. Sub-clause (ii) of sub-section (3) clearly stipulates that the refund of the input tax credit could not be payable even when the credit has accumulated on account of credit of tax or inputs being higher than the rate of tax on output supplies other than fully exempt supplies. Admittedly, the education service provided by the petitioner and other educational institution falls in category of fully exempt supply and therefore, the petitioner would not be entitled to the input tax credit. Sub-clause (ii) of section (3) applies to the inverted rate structure only whereas, in the zero rated supply, Nil Rated supply or exempted supply, the same would not be applicable as the very basis of inverted rate structure would not be applicable as the entire GST paid on the inputs would be lia....
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.... the wide variety of diverse economic criteria that go into the formulation of a fiscal policy legislature enjoys a wide latitude in the matter of selection of persons, subject-matter, events, etc., for taxation. The tests of the vice of discrimination in a taxing law are, accordingly, less rigorous. In examining the allegations of a hostile, discriminatory treatment what is looked into is not its phraseology, but the real effect of its provisions. A legislature does not, as an old saying goes, have to tax everything in order to be able to tax something. If there is equality and uniformity within each group, the law would not be discriminatory. Decisions of this Court on the matter have permitted the legislatures to exercise an extremely wide discretion in classifying items for tax purposes, so long as it refrains from clear and hostile discrimination against particular persons or classes. 47. But, with all this latitude certain irreducible desiderata of equality shall govern classifications for differential treatment in taxation laws as well. The classification must be rational and based on some qualities and characteristics which are to be found in all the persons grouped toget....
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....resulting from fortuitous circumstances arising out of particular situations, in which some of the tax-payers find themselves, is not hit by Article 14 if the legislation, as such, is of general application and does not single them out for harsh treatment. Advantages or disadvantages to individual assessees are accidental and inevitable and are inherent in every taxing statute as it has to draw a line somewhere and some cases necessarily fall on the other side of the line." 106. The principles governing a benefit, by way of a refund of tax paid, may well be construed on an analogous frame with an exemption from the payment of tax or a reduction in liability (Assistant Commissioner of Commercial Tax (Asst.) v. Dharmendra Trading Company. 107. In Elel Hotels and Investments Limited and Others v. Union of India, Justice MN Venkatachaliah (as the learned Chief Justice then was) held that: "20...It is now well settled that a very wide latitude is available to the legislature in the matter of classification of objects, persons and things for purposes of taxation. It must need to be so, having regard to the complexities involved in the formulation of a taxation policy. Taxation is n....
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....rtain kinds of property, because they are visible and tangible, while others are of a nature to elude vigilance. It is only where statutes are passed which impose taxes on false and unjust principle, or operate to produce gross inequality, so that they cannot be deemed in any just sense proportional in their effect on those who are to bear the public charges that courts can interpose and arrest the course of legislation by declaring such enactments void." "Perfectly equal taxation", it has been said, "will remain an unattainable good as long as laws and government and man are imperfect." 'Perfect uniformity and perfect equality of taxation', in all the aspects in which the human mind can view it, is a baseless dream." 110. Parliament while enacting the provisions of Section 54 (3), legislated within the fold of the GST regime to prescribe a refund. While doing so, it has confined the grant of refund in terms of the first proviso to Section 54 (3) to the two categories which are governed by clauses (i) and (ii). A claim to refund is governed by statute. There is no constitutional entitlement to seek a refund. Parliament has in clause (i) of the first proviso allowed a refund of th....