IN THE HIGH COURT OF JUDICATURE AT MADRAS
Name of Party: Cargotec
India Private Limited Vs. The Assistant Commissioner (ST),( W.P.No.13104 of 2023and
W.M.P.No.12870 of 2023 DATED : 23.04.2024)
Prayer:
Writ Petition filed under Article 226 of the Constitution of India, for
issuance of a Writ of Mandamus, to direct the first respondent to recredit or
refund the amount of Rs.3,76,35,138/~ and Rs.28,27,654/~ to the GST Electronic
Credit Ledger and Rs.19,297/~ and Rs.93,83,396/~ to the GST Electronic Cash
Ledger of the petitioner.
ORDER
1. By
this Writ Petition, the petitioner seeks a direction for recredit or refund of
the amounts recovered pursuant to assessment orders pertaining to assessment
years 2017-2018, 2018-2019 and 2019-2020.
2. Learned
counsel for the petitioner submits that the assessment
orders were issued on 28.12.2022. By
relying on Section 78 of applicable GST enactments, she contends that no recovery measures shall be undertaken by the GST
authorities for a period of three months from the date of such order since a
three month limitation period is prescribed for filing an appeal before the
first appellate authority. She
points out that appeals were lodged on 06.04.2023. However, she submits that recovery proceedings were initiated even prior to the
expiry of the three month period and that amounts were debited from the
petitioner-s Electronic Cash and Credit Ledgers in February 2023. She submits that this Writ
Petition was filed in the said facts and circumstances.
3. Mr.V.Prashanth
Kiran, learned Government Advocate, appears on behalf of the respondents. He placed reliance on the counter affidavit,
particularly paragraphs 6 and 10 thereof.
On such basis, he contends that the action of the respondents in
initiating recovery measures is justified.
Section
78 of the Tamil Nadu Goods and Services Tax Act, 2017 is as under: -
78.
Initiation of recovery proceedings. -
Any
amount payable by a taxable person in pursuance of an order passed under this
Act shall be paid by such person within a period of three months from the date
of service of such order failing which recovery proceedings shall be initiated.
Provided
that where the proper officer considers
it expedient in the interest of revenue, he may, for reasons to be recorded in
writing, require the said taxable person to make such payment within such
period less than a period of three months as may be specified by him.
4. The
proviso to Section 78 of the Tamil Nadu Goods and Service Tax Act, 2017, may be
invoked only if the proper officer records in writing the reason as to why he
considers it expedient in the interest of the revenue to require the taxable
person to make payment even before the expiry of the prescribed three month
period. In the case in hand, no material
has been placed on record to justify invoking the proviso to Section 78 of the
applicable GST enactments.
5. In
the counter affidavit, the respondents have stated as under in paragraphs 10
and 33 thereof:
·
10. It is submitted
that the fourth respondent had recovered the amount both from the Electronic
Credit Ledger and Electronic Cash Ledger even before the expiry of the 90 days
under proviso to Section 78 of the CGST Act/TNGST Act, 2017 and it is extracted
below.
·
provided that where the
proper officer consider it expedient in the interest of revenue, he may, for
reasons to be recorded in writing, require the said taxable person to make such
payments within such period less than a period of three months as may be
specified by him.
6. It
is only against this early recovery of the taxes from the GST Electronic Credit
Ledger and Electronic Cash Ledger of the taxable person, the petitioner had
approached the Honourable Court, for necessary relief.
·
33. With regard to the
averments made in Para 50 of the affidavit, it is submitted that the First
Respondent is ready to issue the refund of recovered amount by way of re-credit
to Credit Ledger and Cash Ledger respectively if the petitioner preferred a
refund application in the GST portal.
7. In
view of the fact that the respondents have failed to satisfactorily explain the
recourse to the proviso to Section 78, the petitioner is entitled to a
refund. Consequently, W.P.No.13104 of
2023 is allowed by directing the first respondent to either refund the recovered
amount or recredit the same to the petitioner-s Electronic Cash or Credit
Ledgers, as the case may be, within one month from the date of receipt of a
copy of this order. No costs. Connected Writ Miscellaneous Petition is
closed.
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