TMI Blog2023 (2) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... so to section 140(1) of the JGST Act and has held therein that the proviso restricts the migration of credit, if the credit pertains to transactions which were prohibited under section 17(5) of the JGST Act in which no input tax credit is available. Since the issue involved in this case is squarely covered by the judgment, the impugned order dated 30.07.2021 passed in revision and Demand Notice dated 31.07.2021 are quashed and set aside - Application allowed. - HON BLE MR. JUSTICE APARESH KUMAR SINGH AND HON BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner : Ms. Amrita Sinha, Adv. For the Respondents : Mr. Sachin Kumar, AAG-II Mr. Gaurav Raj, A.C. to A.A.G-II Heard learned counsel for the parties. 2. The instant writ petition has been filed by the petitioner praying therein for the following reliefs:- (i) For a direction upon the concerned respondent authority to allow the petitioner to avail/utilize its excess Tax Deducted at Source (in short TDS) Credit amounting to Rs. 1, 19, 41, 937.36 available as on 30th June, 2017 i.e. Pre Goods and Services Tax regime. (ii) For a direction upon the concerned respondent to accept the FORM GST TRAN-1 filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 57 of the aforesaid return the total TDS for the aforesaid period was Rs.2,59,26,991/-. After being adjusted from the VAT payable during the period and other adjustment the balance amounting to Rs.1,24,68,378.36/- was auto populated in column 61 of the Return being Excess Input Tax Credit to be C/F to next period . On 01.07.2017, the GST Law was implemented, wherein section 140(1) of the JGST Act, 2017 makes every person entitled to take in his electronic credit ledger credit of the amount of Value Added Tax and Entry Tax, if any, carried forward in the return relating to the period ending 30.06.2017.In order to take credit of the aforesaid amount, the petitioner filed statutory form i.e., GST TRAN-1 migrating Rs.1,19,41,397/- from VAT regime to GST regime. The TRAN-1 filed by the petitioner was duly accepted by the respondent-Department and the petitioner was allowed to carry forward the amount deducted toward TDS under JVAT Act. However, to the utter surprise of the petitioner and after lapse 2 years the petitioner was in receipt of a notice granting opportunity of hearing to the petitioner in a revisional proceeding initiated under section 108 of the JGST Act suo-moto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned. Further section 45(7) says that sub section (4) and (5) of section 44 of the Act shall mutatis mutandis, apply. Sub section (4) and (5) of section 44 deals with issuance of certificate of Tax Deduction and adjustment of tax from the total output tax liability of the dealer. Thus, the petitioner is duly entitled for migration of TDS amount in term of section 140(1) of JGST Act as held by this Court in W.P(T) No. 2404/2020 vide order dated 09.01.2023. 5. Mr. Sachin Kumar, learned AAG-II submits that the records of the petitioner Anvil Cables (P) Ltd. for F/Y 2017-18 in Adityapur Circle, Jamshedpur were audited by the Accountant General Jharkhand, Ranchi vide I.R. 48/2018-19. In audit report it has been pointed out that the petitioner-Company has claimed transitional credit of I.T.C. for Rs. 1, 31, 77, 963.63 by TRAN-1 dated 23.12.2017 and had wrongly claimed and availed ITC of Rs.1,19,41,937/- which was to be reversed and deposited along with interest under section 50(3) and penalty under section 73(9) of the JGST Act amounting to Rs. 28,66,064.96 and Rs. 11,94,197.74/- respectively till 25.01.2018. He further submits that on perusal of the Audit Report by the Revisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of Excess Tax Deducted at source under section 45 of the JVAT Act, 2005 amounting to Rs. 1,19,41,937/- available as on 30.06.2017 under section 140(1) of the JGST Act being a credit of the amount of the Value Added Tax which a registered person is entitled to migrate in its electronic credit ledger . The issue before this Court in W.P.(T) No. 2404/2020 was Where the amount deducted towards TDS under section 44 of the Jharkhand Value Added Tax is a credit of the amount of Value Added Tax which a registered person is entitled to migrate in its electronic credit ledger . This Court in para 15 of the aforesaid judgment has interpreted the proviso to section 140(1) of the JGST Act and has held therein that the proviso restricts the migration of credit, if the credit pertains to transactions which were prohibited under section 17(5) of the JGST Act in which no input tax credit is available. Any contrary interpretation given to the proviso would have an effect of nullifying and/or setting at naught the real object of the transitional provision. This Court has further at para 16 of the aforesaid order observed that one provision under statute cannot be used to defeat anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen made have to be laid down before the legislature concerned does not confer any more sanctity or immunity as though they are statutory provisions themselves. Consequently, when the power to make Regulations is confined to certain limits and made to flow in a well-defined canal within stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the courts are bound to ignore them when the question of their enforcement arises and the mere fact that there was no specific relief sought for strike down or declare them ultra vires, particularly when the party in sufferance is a respondent to the lis or proceedings cannot confer any further sanctity or authority and validity which it is shown and found to obviously and patently lack. It would therefore, be a myth to state that the Regulations made under Section 23 of the Act have constitutional and legal status, even unmindful of the fact that any one or more of them are found to be not consistent with specific provisions of the Act itself. Thus, the Regulations in question, which AICTE could not have made so as to bind universities/UGC within the confines of the powers conferred upon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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