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2023 (12) TMI 1287 - HC - GSTRefund claim/Claim of input tax transition of credit - TDS amount remitted by the contractor of the petitioner - whether such amount can only be claimed through a refund application and is ineligible to be transitioned to GST regime credit, and such amount cannot be claimed in TRAN-1 as credit? - HELD THAT:- Section 17(5) which has been placed reliance does not have applicability in respect of the claim of input tax transition of credit in TRAN-1. Section 17(5) is only in respect of non-availability of the input tax credit in certain transactions, it has nothing to do with the claim of input tax credit on eligible transaction. The TDS which is tax deducted by the contractor on execution of the contract of the petitioner, cannot be said to be input tax credit. Such tax deducted at source is reflected in the electronic cash register and not in the electronic credit ledger. Only the amount which is reflected in the electronic credit ledger is to be treated as input tax credit and not any amount of tax which is reflected in the electronic cash register can be treated as the input tax credit. The two judgments relied by the learned Counsel for the petitioner of other High Courts, i.e. one by the Madras High Court in the case of DMR Constructions v. Assistant Commissioner, Commercial Tax Department [2021 (4) TMI 261 - MADRAS HIGH COURT] does not take note of the proviso to Section 140, and without taking note of the proviso to Section 140, the judgment has been rendered. Therefore, the said judgment would not be applicable while reading the provisions of the GST Act, including the definition as provided in Sections 2(62) and 2(63), as well as the proviso to Section 140 of the CGST/SGST Act - The next judgment of Jharkhand High Court in M/s Subhash Singh Choudhary and M/s Bhilai Engineering Corporation Ltd v. The State of Jharkhand, Joint Commissioner of State Tax (Administration) [2023 (1) TMI 1023 - JHARKHAND HIGH COURT] Jharkhand High Court also does not take into account the definition of ‘input tax’ and ‘input tax credit’. Section 140 of the CGST/SGST Act is in respect of the transitional credit of input tax and not every tax paid under the VAT regime. Therefore, there are no much substance in the present writ petition, which is hereby dismissed. However, the petitioner may apply for a refund of TDS in accordance with the law if he is so advised, and such claim shall be processed in accordance with the law - petition dismissed.
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