AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 308
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.....17-18/2023-2024/No.7665 dated 31/12/2023 (Annexure-D Colly.); C.2 Your Lordships may be pleased to stay the implementation, execution and operation of the order in Form GST-DRC-07 along with 'Summary of Order' bearing Reference No.STO- 3/Morbi/DRC-07/R.V.ENT.17-18/2023- 2024/No. 7665 dated 31/12/2023 (Annexure- D Colly.), pending notice, admission and final hearing of this petition. C.3 Your Lordships may be pleased to grant ex- parte ad-interim order in terms of prayer clause C.2 hereinabove; C.4 Your Lordships may be pleased to issue writ of mandamus or writ in a nature of mandamus or any other appropriate writ 'reading down' Section 16(2)(c) of CGST Act, 2017/ SGST Act, 2017 in such a way that it should mean that the unscrupulous registered person who has colluded with the registered supplier who has not actually paid the tax charged in respect of the supplies received by the said registered person either in cash or through utilization of Input Tax Credit admissible in respect of the said supplies, may not be entitled to the credit of any Input Tax in respect of any supplies of goods or services or both to him and that said restriction may not be applicabl....
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....petitioner therefore, preferred a draft amendment which was allowed by order dated 2.05.2025. 5. Learned advocate Mr. Trivedi for the petitioner submitted that the impugned show cause notice as well as order-in-original are without jurisdiction in absence of issuance of notice in Form GST DRC-01A as the petitioner was prevented from filing reply to such intimation which ought to have been issued by the respondent authority to point out that the petitioner was a bona fide purchaser of the goods and has rightly availed the Input Tax Credit for the period under consideration. 5.1 In support of his submission, reliance was placed on decision of this Court in case of Agrometal Vendibles Pvt. Ltd. v. State of Gujarat reported in (2022) 63 G.S.T.L. 212 (Guj.) 5.2 It was further submitted that the petitioner has approached this Court by challenging the show cause notice issued under section 73 of the GST Act and during the pendency of this petition, the respondent authorities have passed the impugned order-in-original considering the documents available on record without giving any opportunity to the petitioner to reply . It was therefore, submitted that the petitioner has not been prov....
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....e decision in case of Suncraft Energy Pvt. Ltd. (supra) is dismissed by the Hon'ble Apex Court and as such, decision of Calcutta High Court is confirmed by the Hon'ble Apex Court. 5.8 In support of his submission that provisions of section 16(2)(c) is required to be read down so as to avoid double payment of tax by the petitioner, as the petitioner has already paid tax on the purchase of goods and once again, the petitioner cannot be saddled with tax liability, reliance was placed on the decision of this Court in case of New Nalbandh Traders v. State of Gujarat reported in 2022 (66) G.S.T.L. 334 (Guj.), wherein this Court considering the decision of Hon'ble Delhi High Court in case of On Quest Merchandising India Pvt. Ltd. v. Government of NCT of Delhi reported in 2018(10) G.S.T.L. 182 (Del.), has read down Rule 86A for blocking of credit in Electronic Credit Ledger. It was submitted that the decision in case of On Quest Merchandising India Pvt. Ltd. (supra), also pertains to reading down of provision of section 9(2)(g) of Delhi Value Added Tax, 2004 which stipulates for disallownace of credit similar to provisions of section 16(2)(c) of the GST Act. 5.9 It was therefore, submitt....
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.... undertaken at the principal place of business by the proper officer wherein it was found that no activity was actually being carried out from the said place. Further, the phone number that was registered with the department was not working. It is submitted that a statement of Mrs. Ushaben, the mother-in-law of the proprietor, who happened to be in the vicinity was recorded. In the statement she states that she is not aware of any business in the name of Pashavi Trade Link. It is further submitted that she didn't give the residential address of the proprietor of the firm for further inquiry. A copy of letter Dated09.03.2022 along with the statement of Mrs. Ushaben is attached herewith as Annexure R-1. c) It is further submitted that no reply was filed in furtherance to the notice dated 09.03.2022. Therefore, subsequently an order dated 12.04.2022 was passed in Form REG-19 wherein the registration of the said dealer cancelled ab-inito. It is further, submitted that application for till date revocation no of registration has been filed by the said proprietor in the case of Pashavi Trade Link. d) It is submitted that considering the said facts, the notice in form DRC 01 being ....
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....ive parties and considering the material placed on record and on perusal of the impugned show cause notice as well as order-in-original and the averments made in the affidavit-in-reply filed on behalf of the respondent no.2, it appears that supplier of the goods to the petitioner i.e. M/s. Parshvi Tradelinks is a non genuine supplier and the petitioner has not placed on record any material to show that the supplies received by the petitioner are supported by invoices, eway bill, transport receipt etc. as the petitioner has not provided such details on the ground that there is no allegation made in the show cause notice against the genuineness of the transactions entered into by the petitioner. However, once it is found by the respondent authority that the supplier of the goods to the petitioner has failed to discharge the tax liability as per the provisions of section 16(2)(c) of the GST Act, the petitioner is liable to pay such tax or input tax credit availed by the petitioner is liable to be reversed. Provision of section 16(2)(c) of the Act reads as under: "16 - Eligibility and condition for taking input tax credit xxx (2) Notwithstanding anything contained in this section....