M/S Poothokaren Agencies v. Deputy Commissioner State Tax, State GST Department, Special Circle, Tax Complex, Poothole P.O., Thrissur; Superintendent, Central Tax & Central Excise, Thrissur Range; State Tax Officer, Tax Payer Service Circle, Thrissur City; Goods and Services Tax Council; Union of India; State of Kerala, Taxes (B) Department

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 18[TH] DAY OF DECEMBER 2023 / 27TH AGRAHAYANA, 1945 ``` ## **`WP(C) NO. 41216 OF 2023`** ## **`PETITIONER:`** ``` M/S. POOTHOKAREN AGENCIES, TC/34/108/1, POST OFFICE ROAD, THRISSUR DISTRICT. REPRESENTED BY ITS PROPRIETOR, PAUL GEORGE, S/O.GEORGE, POOTHOKAREN HOUSE, ARANATTUKARA P. O., THRISSUR DISTRICT, PIN – 680001 ``` ``` BY ADVS. SRI. K. J. ABRAHAM SRI. ARAVINDAKSHAN K.R. SRI. NIKHIL JOHN ``` ## **`RESPONDENTS:`** - `1 DEPUTY COMMISSIONER STATE TAX, STATE GST DEPARTMENT, SPECIAL CIRCLE, TAX COMPLEX, POOTHOLE P. O., THRISSUR DISTRICT, PIN – 680004.` - `2 SUPERINTENDENT, CENTRAL TAX & CENTRAL EXCISE, THRISSUR RANGE, SAKTHAN NAGAR, THRISSUR DISTRICT, PIN – 680001.` - `3 STATE TAX OFFICER, TAX PAYER SERVICE CIRCLE, THRISSUR CITY, STATE GST DEPARTMENT, TAX COMPLEX, POOTHOLE P. O., THRISSUR DISTRICT, PIN – 680004.` - `4 THE GOODS AND SERVICE TAX COUNCIL, 5TH FLOOR, TOWER II, JEEVAN BHARATI BUILDING, JANPATH ROAD, CANNAUGHT PLACE,NEW DELHI, REPRESENTED BY ITS CHAIRPERSON, PIN – 110001.` - `5 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO MINISTRY OF FINANCE DEPARTMENT, NEW DELHI, PIN – 110001.` ``` WP(C) NO. 41216 OF 2023 ``` ``` 2 ``` ``` 6STATE OF KERALA, TAXES (B) DEPARTMENT, STATE GOODS & SERVICE TAX DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PIN – 695001. ``` ``` BY ADV. SRI. P. R. SREEJITH - SC SMT. RESHMITA RAMACHANDRAN - GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 41216 OF 2023 ``` ``` 3 ``` # **DINESH KUMAR SINGH, J.** -------------------------- ## **W.P.(C) No.41216 of 2023** ------------------------Dated this the 18[th] day of December, 2023 ## **JUDGMENT** ## 1. The present writ petition has been filed by the petitioner for the following reliefs; i. issue a WRIT OF CERTIORARI or any other appropriate writ, order or direction under Article 226 of the Constitution of India, quashing Exhibit P10 and P11 orders passed by the 3[rd] respondent as illegal, arbitrary and against the principle of natural justice, or pass such further or other orders as may deem fit and proper in the circumstances of this case, and render justice; ii. to direct the 4[th] , 5[th] and 6[th] respondents herein to make necessary arrangements to adjust the CGST credit available to the petitioner towards the SGST; iii. to grant such other relief’s as this Hon’ble Court may deem fit and proper; and iv. allow this Writ Petition with cost. v. Issue direction to dispense with the translation of vernacular document produce along with this Writ Petition. ``` WP(C) NO. 41216 OF 2023 ``` ``` 4 ``` 2. The petitioner is a registered dealer under the provisions of CGST/SGST Act, 2017. The petitioner is engaged in the business of grinding wheels, abrasive powder, transmission belts, cotton waster with HSN Code 68042110, 68052010, 40103490, 52029900. The petiioner filed Form GST TRAN – 1 as prescribed under Section 140 of CGST/SGST Act, 2017 and availed transitional credit of SGST for an amount of Rs. 7,89,384/-. On verification, it was noticed that the petitioner is not entitled to avail and utilise SGST transitional credit of Rs. 7,89,384/- which was already availed and utilised by him. A Show Cause Notice under Section 73 (1) of the SGST Act, 2017 along with the relevant documents and summary in Form DRC – 01 was issued to the petitioner. A demand was proposed for wrongly availed SGST transitional credit. The petitioner filed reply to the Show Cause Notice but, he did not make any payment against the demand in the Show Cause Notice. Despite several opportunities granted to the petitioner, the petitioner availed the opportunity of personal hearing. 2. The State Tax Officer vide a detailed and well considered order in Exhibit P-10 confirmed Rs. 7,89,384/- as SGST liability for which the petitioner availed the transitional credit wrongly. Levy of interest of ``` WP(C) NO. 41216 OF 2023 ``` ``` 5 ``` Rs. 8,44,360/- was also confirmed and penalty of Rs. 78,938/- was also imposed. The petitioner was also informed that the petitioner can file appeal against the order under Section 107 of the CGST/SGST Act, 2017. 3. It is not in dispute that the petitioner has wrongly availed that SGST transitional credit. The learned Counsel for the petitioner submits that the petitioner ought to have avail the CGST for the said amount and as the petitioner did not availed CGST of the said amount, there should be an adjustment between the CGST and SGST departments regarding the SGST credit of Rs. 7,89,384/- utilised by him. 4. On the other hand, learned Counsel for the respondents submitted that the petitioner had filed revised Tran – 01 claiming CGST transitional credit for the said amount of Rs. 7,89,384/- for which has been sanctioned. As the petitioner had wrongly availed the SGST, he is liable to pay interest and penalty. The petitioner wants to avoid the payment of interest and penalty and, therefore, he has approached this Court by filing this writ petition. ``` WP(C) NO. 41216 OF 2023 ``` ``` 6 ``` 5. I have considered the submissions and facts and circumstances of the case. The petitioner himself has admitted that he had wrongly availed SGST Tran credit for an amount of Rs. 7,89,384/-. As per the learned Counsel for the petitioner, the petitioner had also filed revised Tran – 01 and the CGST for the said amount has been sanctioned. Therefore, I find no substance in this writ petition for directing the Department to adjust the amount of Rs. 7,89,384/-. The SGST utilised by the petitioner against the due CGST credit for the said amount is sanctioned by the Central GST Department. Thus, the present writ petition is hereby dismissed. However, if the petitioner is still aggrieved by the decision in Exhibit P-10, he can file an appeal as advised in Exhibit P-10 order itself, and if such an appeal is filed within a period of fifteen days from today, the same shall be considered and decided in accordance with the law expeditiously. If the petitioner files the appeal as mentioned above, the appellate authority shall consider the appeal on merit without being influenced by any observations made herein. **Sd/-** **DINESH KUMAR SINGH JUDGE** Svn ``` WP(C) NO. 41216 OF 2023 ``` ``` 7 ``` ## **`APPENDIX OF WP(C) 41216/2023`** ## **`PETITIONER'S EXHIBITS`** - `EXHIBIT P1 TRUE COPY OF THE ELECTRONIC CREDIT LEDGER MAINTAINED BY THE PETITIONER IN THE GST WEB PORTAL FOR THE PERIOD 01.07.2017 TO 30.11.2017` - `EXHIBIT P2 TRUE COPY OF FORM GST DRC-01A INTIMATION OF TAX ASCERTAINED AS BEING PAYABLE UNDER SECTION 73(5) SGST ACT DATED 21.01.2021 FOR RS.7,89,384/-ISSUED BY THE 1ST RESPONDENT` - `EXHIBIT P3 TRUE COPY OF THE SUMMARY OF SHOW CAUSE NOTICE U/S 73 OF THE KSGST/CGST ACT 2017 IN FORM GST DRC-01 DATED 25.11.2021` - `EXHIBIT P4 TRUE COPY OF THE SHOW CAUSE NOTICE IN REF NO:ZJ3212210001671 WITH SUMMARY IN FORM GST DRC-01 DATED 01.12.2021 FOR RS.7,89,384/-` - `EXHIBIT P5 TRUE COPY OF THE SHOW CAUSE NOTICE IN CASE ID NO.32AENPP9405K1Z4/2017-18 DATED 12.01.2022 ISSUED BY THE 1ST RESPONDENT` - `EXHIBIT P6 TRUE COPY OF SHOW CAUSE NOTICE REF NO:ZJ32012200038031 DATED 13.01.2022` - `EXHIBIT P7 TRUE COPY OF THE ANNEXURE-II IN CIRCULAR NO.182/14/2022-GST REFERENCE NO.21/2023 DATED 03.02.2023` - `EXHIBIT P8 TRUE COPY OF THE ORDER NO.32AENPP9405K1Z4/ 2017-18 DATED 17.02.2023 IN DIN: 320220280001951 PASSED BY THE 3RD RESPONDENT` - `EXHIBIT P9 TRUE COPY OF THE REPLY TO THE SHOW CAUSE NOTICE IN FORM GST DRC-06 DATED 04.09.2023 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT` - `EXHIBIT P10 TRUE COPY OF THE ORDER U/S. 73 OF THE SGST, 2017 DATED 08.09.2023 PASSED BY THE 3RD RESPONDENT IN FORM DRC-07 ALONG WITH SUMMARY OF ORDER AND ANNEXURE` ``` WP(C) NO. 41216 OF 2023 ``` ``` 8 ``` ``` EXHIBIT P11TRUE COPY OF THE ORDER U/S. 73 OF THE SGST, 2017 DATED 08.09.2023 PASSED BY THE 3RD RESPONDENT IN FORM DRC-07 ALONG WITH SUMMARY OF ORDER AND ANNEXURE EXHIBIT P12TRUE COPY OF THE NOTE ON TRANSITION PROVISIONS UNDER GST ISSUED BY THE DIRECTORATE GENERAL OF TAXPAYER SERVICES, CENTRAL BOARD OF EXCISE & CUSTOMS THROUGH THE OFFICIAL WEB PORTAL ```