BASANTA KUMAR SHAW Vs. ASSISTANT COMMISSIONER OF REVENUE

JUDGEMENT

(1.) This intra Court appeal by the writ petitioner is directed against the order dtd. 20/6/2022 in WPA 9820 of 2022. The said writ petition was filed by the appellant challenging the order No. 102 dtd. 23/5/2022 passed by the first respondent herein, in and by which disallowed debit of IGST from the electronic credit ledger in exercise of the power conferred under Rule 86A of the Central Goods and Services Tax Rules, 2017 (CGST Rules) and the West Bengal Goods and Services Tax Rules, 2017 (WBGST Rules) in terms of Clause (a) (ii) of Sub-Rule (1) of the said Rule for discharge of any liability under Sec. 49 of the WBGST / CGST or the claim of any refund of any unutilized input tax credit.

(2.) The appellant was issued three show-cause notices which were served in 20/1/2022 and 28/1/2022. It was stated that in terms of Sec. 42(1) (a) of WBGST / CGST Act the details of every inward supply furnished by a registered person for a tax period shall, in such manner and within such time as may be prescribed, be matched with the corresponding details of outward supply furnished by the corresponding registered person, the supplier, in his valid return for the same tax period or any preceding tax period. It was stated that as per the data based record, there is a mismatch between the appellant's input tax credit Form GSTR-2A (auto-populated) from details of outward supplies furnished by the appellant's suppliers in their respective GSTR-1 and GSTR-3B for the tax periods from April 2018 to March 2019, March 2019 to March 2020 and April 2020 to March 2021 which is inadmissible as per the provisions of the WBGST / CGST Act, 2017. The appellant was advised to furnish an explanation by 4/2/2022 or pay the amount of tax as assessed in the show-cause notices along with applicable interest through online mode failing which demand order containing tax, interest and penalty will be issued under Sec. 73(a) of the WBGST / CGST Act, 2017. On 30/3/2022 the appellant made a payment of Rs.10.00 lakhs. To be noted that the appellant did not submit their reply to the show-cause notices within the time permitted. The first respondent by order dtd. 23/5/2022 in exercise of power under Rule 86A of the WBGST Rules disallowed the debit of IGST amounting to Rs.2,67,96,042.00 from the electronic credit ledger in terms of Clause (a)(ii) of Sub-Rule (1) of Rule 86A for the discharge of any liability under Sec. 49 of the WBGST/ CGST Act or the claim of any refund of any unutilized input tax credit. It is thereafter on 31/5/2022, the appellant submitted three representations requesting extension of time by two weeks from the date of the said letter to enable them to submit a detailed reply. The said representation is stated to have been received in the office of the first respondent on 9/6/2022. On 30/5/2022 the appellant is stated to have submitted a representation to the first respondent requesting to revoke the order of blocking the electronic credit ledger. On 13/6/2022 the appellant filed their reply to the said show-cause notices. Even before filing the reply dtd. 13/6/2022, the appellant approached this Court and filed the writ petition which was affirmed on 6/6/2022. The writ petition has been disposed of by order dtd. 20/6/2022 by directing the first respondent to consider the reply filed by the petitioner to the show-cause notices on 30/6/2022 expeditiously and preferably within 3 weeks from the date of communication of the order in accordance with law and by passing a reasoned and a speaking order after providing an opportunity of hearing and if the appellant is able to make out a case in the course of hearing for revoking the blocking of the electronic credit ledger, the officer concerned was directed to take immediate steps for revoking the same.

(3.) Mr. Ankit Kanodia, learned Advocate appearing for the appellant submitted that the order impugned in the writ petition ought to have been quashed as the first respondent has initiated proceedings under Sec. 73 of the CGST/ WBGST Act and blocking of the input tax credit in the electronic credit ledger is not valid and bad in law as it would tantamount to recovery of demand without any adjudication. Further, it is submitted that Rule 86A of the said Rules provides for blocking of credit in the electronic credit ledger only to the extent the credit is available in the electronic credit ledger and on the date when the order was passed there was no credit available in the appellant's electronic credit ledger. Therefore, the blocking is in the nature of negative blocking which is not provided for under Rule 86A of the said Rules. Further, it is submitted that the learned Writ Court ought to have taken into account that when the reasons to believe by the proper officer that the credit of the input tax available in the electronic credit ledger has been fraudulently availed or ineligible as stated under Rule 86 of the said Rules has culminated into a show-cause notice under Sec. 73/74 of the Act, the blocking of the electronic credit ledger cannot be sustained. Further, it is reiterated that negative blocking of the electronic credit ledger would certainly amount to permanent recovery of the alleged ineligible input tax credit even before the conclusion of the adjudication as the appellant would have to additionally make the payment to the extent of the blocked input tax credit before discharging its output liability by claiming the input tax credit for any subsequent period post the negative blocking of electronic credit ledger. Further, it is submitted that due to the blocking of the electronic credit, the appellant is unable to run its business and unable to file its monthly returns. Further, it is submitted that the appellant has been restricted to utilize the input tax credit which is a vested right of the appellant. In support of the contention Mr. Kanodia placed reliance on the decision of the High Court of Gujarat in Samay Alloys India Pvt. Ltd. Versus State of Gujarat . It is submitted in the said decision that the question which fell for consideration was whether it is open to the authority to block the electronic credit ledger in exercise of power under Rule 86A of the Rules, more particularly, when the balance in such ledger is Nil. It is submitted that the Hon'ble Court held that Rule 86A of the CGST Rules empowers the Commissioner or his subordinates to freeze the debit of the electronic credit ledger provided he has reasons to believe that the credit of input tax available in the electronic credit ledger has been fraudulently availed or is ineligible. Therefore, the condition precedent is that the input tax credit should be available in the electronic credit ledger before the power under Rule 86A is invoked by the authority. Further, it was pointed out that the primary conditions in order to invoke Rule 86A is that credit of input tax should be available in the electronic credit ledger and further, such credit should be claimed to have been (supported by reason to believe recorded in writing) fraudulently availed.