2021 (1) TMI 251 - HC - GST

Validity of Section 17(5)(c) and 17(5)(d) of CGST Act - utlra vires of Article 14 of the Constitution of India - seeking that Input Tax Credit is available on GST paid on goods/services used in construction of immovable property including civil works used in furtherance of business - ITC on on goods/services used in construction of immovable property including in civil works connected with the immovable property but not claimed in the GST return for the financial year 2019-20 - HELD THAT - Let notice be issued to the learned Attorney General of India and Advocate General of the State. The notice shall be made returnable within four weeks. The steps be taken within a week through normal mode as well as registered post.

Summary

Issues:
Challenge to the validity of Sections 17(5)(c) and 17(5)(d) of the CGST Act under Article 14 of the Constitution of India.
Claim for Input Tax Credit on GST paid for construction of immovable property and civil works.
Request for a writ of Mandamus to permit claiming Input Tax Credit for construction-related GST.
Claim for availing input tax credit not claimed in the GST return for the financial year 2019-20 and subsequent years.

Analysis:
The petitioner has filed a petition challenging the validity of Sections 17(5)(c) and 17(5)(d) of the CGST Act, alleging them to be arbitrary, unreasonable, discriminatory, and ultra vires Article 14 of the Constitution of India. The alternative prayer seeks a reading down of the said sections to allow Input Tax Credit on GST paid for goods/services used in the construction of immovable property and civil works related to business activities subject to GST levy. The court has considered the submissions and issued notice to the Attorney General of India and Advocate General of the State, making the matter returnable within four weeks. The respondents are directed to file counter affidavits within the same period, with one week granted to the petitioner's counsel for a rejoinder affidavit.

The petitioner seeks a writ of Mandamus to direct the respondents to permit claiming Input Tax Credit corresponding to the GST paid on goods/services used in the construction of immovable property, including civil works. Additionally, the petitioner requests to avail input tax credit not claimed in the GST return for the financial year 2019-20 and subsequent years without being time-barred or lapsed due to delayed availing. The court has acknowledged that if the petitioner succeeds in the petition, the right to claim Input Tax Credit will be addressed at the final disposal stage. The case is listed for immediate hearing after the specified period for filing affidavits, indicating the court's prompt attention to the matter and the importance of the issues raised regarding Input Tax Credit related to construction activities and GST payments.