TaxTMI 
TaxTMI 
2025 (7) TMI 1190
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....on that the right to avail ITC having been statutorily provided for in Section 16 of the said Act, the show cause notices are primarily without jurisdiction as the same does not identify infraction of any of the provisions contained in Section 16 of the said Act. Since, the show cause is without jurisdiction, the consequential orders passed under Section 74 of the said Act is also bad and consequentially a nullity and should not be acted upon. According to the petitioner, since the aforesaid is a jurisdictional issue, this Court under Article 226 of the Constitution of India is competent to entertain the petition and adjudicate the same on the merits, notwithstanding the presence of alternative remedy. The Counsel would submit that simply because the petitioner has not availed the alternative remedy, the same should not deter this Court to examine whether any case for interference has been made out. In support of his contention he has placed reliance on the judgments delivered by the Hon'ble Supreme Court in the case of Godrej Sara Lee Ltd. v. Excise and Taxation Officer-cum-Assessing Authority and Others, reported in (2023) SCC Online SC 95 . On the same and identical issue and th....
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....ilable on record that the petitioner's primary challenge is directed against the reversal of the ITC on the ground of irregular availment of ITC, since, according to the petitioner such reversal has been effected contrary to the provisions contained in Section 16 of the said Act. To appropriately consider the challenge made by the petitioner it is necessary to consider the provisions of Section 16 of the said Act. To appropriately appreciate the same the said Section is extracted hereinbelow:- "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 person. (2) Notwithstanding anything contained in this section, no registered person shall be entitled to the credit of any input tax in respect of any supply of goods or services or both to him unless,- (a) he ....
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.... supplier] of the amount towards the value of supply of goods or services or both along with tax payable thereon. (3) Where the registered person has claimed depreciation on the tax component of the cost of capital goods and plant and machinery under the provisions of the Income-tax Act, 1961 (43 of 1961), the input tax credit on the said tax component shall not be allowed. (4) A registered person shall not be entitled to take input tax credit in respect of any invoice or debit note for supply of goods or services or both after the [thirtieth day of November] following the end of financial year to which such invoice or [* * *] debit note pertains or furnishing of the relevant annual return, whichever is earlier: [Provided that the registered person shall be entitled to take input tax credit after the due date of furnishing of the return under Section 39 for the month of September, 2018 till the due date of furnishing of the return under the said section for the month of March, 2019 in respect of any invoice or [* * *] debit note for supply of goods or services or both made during the financial year 2017-18, the details of which have been uploaded by the s....
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....atement or suppression of facts to evade tax, to initiate the proceeding under the said Section by issuing a notice under Section 74 of he said Act. Admittedly, provisions of the said Act empower the proper officer to scrutinize and/or determine as to whether the ITC has been wrongly availed and/or utilized by reason of fraud and wilful misrepresentation. Both Section 16 as also Section 74 of the said Act provide for different consequences, and stands on two different and distinguished separate footings as noted above. Unfortunately, the petitioner has attempted to confuse the scope of Section 16 with that of Section 74 of the said Act. Two Sections stand on separate grounds. It is true, that the provisions of taxing statute is to be construed strictly, however, I find that the enquiry initiated by the respondents are well within their authority and/or jurisdiction and on such ground the judgment delivered in the case of Ajmera Housing Corporation & Anr. (supra) does not assist the petitioner, at all. 7. Admittedly, the provisions of the said Act provide for multi-tiered adjudicatory process. Not only the said Act provides for an appeal before the appellate authority under Secti....