M/S Commercial Steel Engineering ... vs The State Of Bihar And Ors on 5 February, 2019
Patna High Court – Orders
M/S Commercial Steel Engineering … vs The State Of Bihar And Ors on 5 February, 2019
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2125 of 2019
====================================================== M/s Commercial Steel Engineering Corporation
… … Petiti
Versus
The State of Bihar and Ors
… … Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Gautam Kumar Kejriwal, Adv. For the Respondent/s : Mr. Vikash Kumar, SC-11. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
and
HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE JYOTI SARAN) 2 05-02-2019 Heard Mr. Gautam Kumar Kejriwal, learned counsel appearing for the petitioner and Mr. Vikash Kumar, learned Standing Counsel No.11 for the State.
The petitioner is aggrieved by an order dated 06.11.2018 of the Assistant Commissioner, State Tax, Patliputra Circle, Patna whereby while rejecting an application filed by the petitioner under section 140 of the Bihar Goods and Service Tax Act, 2017 (hereinafter referred to as ‘the Act’) and the Rules framed thereunder, seeking an input tax credit, not only the authority has proceeded to reject the application rather has also created a liability of tax and imposed the penalty thereon.
In short, the submission of Mr. Kejriwal is that section 140 of ‘the Act’ enables the tax payers to carry forward his Patna High Court CWJC No.2125 of 2019(2) dt.05-02-2019 credit towards purchase tax or entry tax as the case may be to his electronic credit ledger which exercise is to be taken within 90 days of the appointed day prescribed under ‘the Act’.
According to Mr. Kejriwal, this right was exercised by the petitioner vide application present at Annexure-5 which is within time and when it came up for consideration before the Assessing Officer, instead of its consideration on the prescriptions underlying section 140 of ‘the Act’, he has proceeded to reject and set up a liability against the petitioner in exercise of powers vested under Section 73(9) read alongside section 50 of ‘the Act’ which exercise is wholly without jurisdiction inasmuch as the application of the petitioner under section 140 of ‘the Act’ had to be either accepted or rejected but it could not have given rise to a liability which may be an exercise independently but not in consequence of consideration of section 140 application.
Mr. Vikash Kumar, learned Standing Counsel No.11 while raising a preliminary objection as to the
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M/S Commercial Steel Engineering … vs The State Of Bihar And Ors on 5 February, 2019
maintainability of the writ petition in view of the alternative remedy so available under ‘the Act’, prays for a short accommodation to respond to the issue raised by Mr. Kejriwal as regarding the exercise by the Assistant Commissioner of State Tax under section 73 of ‘the Patna High Court CWJC No.2125 of 2019(2) dt.05-02-2019 Act’ while considering section 140 of ‘the Act’. According to Mr. Vikash Kumar, the order put to challenge in the writ petition is on account of mis-statement by the petitioner to seek input tax credit, which claim had already been rejected.
As prayed, list this matter ‘For Orders’ on Thursday next i.e. 07.02.2019 at 10:30 AM.
(Jyoti Saran, J) ( Arvind Srivastava, J) skpathak/-
U
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