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TMI Blog2025 (5) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment framed under Section 73 of the Central Goods and Services Tax Act, 2017, with the following prayer(s): "Under the above circumstances, it is most respectfully prayed that this Hon'ble Court may be graciously pleased to admit this petition, call for and peruse the relevant records and after hearing the petitioner's counsel, be further pleased to; (i) Issue a Writ in the nature of Certiorari quashing the impugned order dated 28.08.2024 passed by the opposite party No.2 under Annexure-3. (ii) Issue appropriate writ by setting aside the impugned Order dated 28.08.2024 and remand the matter to the opposite party No.2 for de-novo assessment in accordance with law by granting an opportunity to the petition for production of books of account. (iii) Issue a writ in the nature of Certiorarified Mandamus restraining the Opp. Parties from enforcing the demand as made under Annexure-3. (iv) Issue any appropriate writ(s) / direction (s) / deemed fit in the fact and circumstances of the case. And for which act of kindness, the petitioner as in duty bound shall ever pray." Facts : 2. As adumbrated in the writ petition, it is revealed that the petitioner, proprietor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point is involved in the matter that whether the authority is justified in rejecting the claim of input tax credit with respect of sale/supply of commodity dealt in by the petitioner, i.e., Kerosene Oil as a wholesale dealer under the PDS, and, thereby the demand of tax, interest and penalty in the assessment under Section 73 of the CGST Act is sustainable. 4. Heard Sri Rudra Prasad Kar, learned Senior Advocate for the petitioner being assisted by Sri Sriman Arpit Mohanty, learned Advocate and Sri Bismay Anand Prusty, learned Senior Standing Counsel appearing for the opposite parties. Rival contentions and submissions: 5. Sri Rudra Prasad Kar, learned Senior Advocate submitted that the doubt entertained by the Assessing Authority with regard to claim of input tax credit by the petitioner could very well be explained given an opportunity of producing books of accounts including the Stock Register vis-à-vis returns furnished. Since ex parte order was passed, the entire claim of input tax credit has been disallowed and, as a consequence thereof, not only tax has been quantified to be levied, but also interest has been directed to be levied, besides imposition of penalty und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal hearing on three occasions, due to circumstances unavoidable neither the Noticee nor could his representative avail such opportunities; but, the Assessing Authority having proceeded to undertake ex parte assessment under Section 73 of the CGST Act, documents available on portal and accessible by him could have been utilised and benefit should have been extended. Record does not reveal that the Assessing Authority has verified the returns with such evidence available on portal. 5.5. He, therefore, submitted that granting one opportunity to produce books of accounts, the petitioner would be in a position to explain the claims made in the returns furnished. 6. Sri Bismay Anand Prusty, learned Senior Standing Counsel while opposing the aforesaid contentions of the learned Senior Counsel, argued that since opportunities granted to the petitioner were not availed by him, the Assessing Authority had no other alternative than to proceed with the assessment ex parte and pass appropriate order, against which the petitioner is not remediless under the statute. With vehemence he urged that when claim of benefit like input tax credit has been made in the returns, onus lies on the taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of tax besides levy of interest and imposition of penalty, for which he appears to have paid the taxes to the OMC, i.e., IOCL at the time of receiving the Superior Kerosene Oil. 7.3. This Court is not oblivious of conceptual understanding of claim of exemption/benefit qua determination of entitlement by the Assessing Authority as propounded by a Division Bench of this Court in the case of Kiran Stone Crusher Vrs. State of Odisha, (2010) 31 VST 45 (Ori) = 109 (2010) CLT 291. This Court laid down that, "8. Apart from the above, learned counsel for the petitioner also places reliance on the judgment of the honourable Supreme Court in the case of Commissioner of Income-tax, Delhi Vrs. Mahalaxmi Sugar Mills Co. Ltd., (1986) 160 ITR 920 (SC) = AIR 1986 SC 2111 and in particular, the findings arrived at in paragraph 12 of AIR (at page 928 of ITR) thereof which is quoted hereinbelow: '12. *** In the second place, there is a duty cast on the Income-tax Officer to apply the relevant provisions of the Indian Income-tax Act for the purpose of determining the true figure of the assessee's taxable income and the consequential tax liability. Merely because the assessee fails to claim the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n fulfilment of certain conditions or restrictions as stipulated under the Act. In the event of breach of any of the conditions as enumerated under the Act, no benefit can be conferred to the taxable person. On perusal of Section 16 of the GST Act, it is clear that every registered taxable person can claim the benefit of ITC only on fulfilment of certain conditions as enumerated thereunder. Sub-section (1) of Section 16 deals with the eligibility of a registered person to avail of ITC on any supply of goods, or services or both which are used or intended to be used in the course or furtherance of his business and the said amount is to be credited to the electronic credit ledger of such person. The conditions enabling such benefit are available in said section. The existence of a tax invoice or debit note issued by the supplier, proof of receipt of goods or services or both and the tax charged in respect of such supply having been actually paid to the Government, either in cash or through utilization of ITC admissible in respect of the said supply. The said conditions are to be satisfied together and not separately or in isolation, and these are the conditions and restrictions which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is to receive the goods from only one supplier, i.e., IOCL, an Oil Marketing Company, at fixed price, the ITC appears to have been claimed against supply made to the consumers on the sale price fixed by the Government. Therefore, there can be no difficulty in verifying the genuineness of transactions with respect to input tax credit. 8. Diligent scrutiny of materials available on record indicates that the petitioner did not have proper opportunity to substantiate his claim made in the return vis-à-vis books of accounts. Therefore, this Court is of the considered view that the petitioner is entitled to one opportunity before the Assessing Authority. 9. In such view of the matter, the impugned ex parte assessment order dated 28.08.2024 framed under Section 73 of the GST Act by the Assistant Commissioner, GST & Central Excise, Cuttack-I Division, Cuttack is hereby set aside. In order to avail the opportunity, as discussed above, the petitioner is directed to appear before the said Authority within four weeks from the date of receipt of certified copy of this order. On the appearance of the petitioner, the Assessing Authority may take up the matter forthwith or specify a dat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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