Bharti. Telemedia Limited vs Union Of India on 11 February, 2021
Andhra Pradesh High Court – Amravati
Bharti. Telemedia Limited vs Union Of India on 11 February, 2021
Bench: Arup Kumar Goswami, C.Praveen Kumar
[ 3268 ]
(SHOW CAUSE NOTICE BEFORE ADMISSION)
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
(Special Original Jurisdiction)
THURSDAY, THE ELEVENTH DAY OF FEBRUARY,
TWO THOUSAND AND TWENTY ONE
:PRESENT:
THE HONOURABLE THE CHIEF JUSTICE SRI ARUP KUMAR GOSWAMI
AND
THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
WRIT PETITION NOs: 24826 OF 2020 with IA. No. 1 of 2020
AND
WRIT PETITION NOs: 24904 OF 2020 with IA. No. 1 of 2020
W.P. No. 24826 of 2020
Between:
Bharti Airtel Limited, Rep. by its Assistant Manager-Legal & Regulatory, Mr. Rajiv Praveen Kumar, Having office at D. No 40-1-140, 2/3 Sri Pothuri complex, MG Road, Labbipet, Vijayawada 520010, Andhra Pradesh
.. Petitioner
AND
- Union of India, Represented by the Secretary, Ministry of Finance Department of Revenue, Government of India North Block, New Dethi-110001
- State of Andhra Pradesh, Represented by its Principal Secretary, Revenue CT-II Department, Secretariat, Velagapudi, Amaravati
- Goods and Services Tax Council, Through its Chairman, GST Council Secretariat, 5″ Floor, Tower II, Jeevan Bharti Building, Janpath Road, Connaught Place, New Delhi-110 001
- Central Board of Indirect Taxes and Customs, Through its Chairman, North Block, New Delhi- 110 001
- Chief Commissioner of State Tax, D.No.5-59, R. K. Spring Valley Apartments,
_ Bandar Road, Eedupugallu Village, Kankipadu Mandal, Vijayawada, Krishna District, Pin-521151
6. Assistant Commissioner (ST), Suryabagh Circle, 4th Floor, Vuda Complex, Sirupuram, Visakhapatnam
Respondents
WHEREAS the Petitioner above named through his Advocate Sri K. Srinivasa
Rao, presented this Petition under Article 226 of the Constitution of India praying that
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Bharti. Telemedia Limited vs Union Of India on 11 February, 2021
the circumstances stated in the affidavit filed herein, the High Court may be pleased to
issue an appropriate writ, order or direction particularly in the nature of ‘Writ of Cer
or Prohibition’
(a) declaring Section 16(2)(c) of the Central Goods and Services Tax Act, 2017 as
discriminatory and violative of Article 14, Article 19 and Article 300A of the Constitut
of India and thus unconstitutional;
- declaring Section 16(2)(c) of the Andhra Pradesh Goods and Services Tax Act, 2017 as discriminatory and violative of Article 14, Article 19 and Article 300A of the Constitution of India and thus unconstitutional:
- declaring /reading down Section 16(2)(c) of the Central Goods and Services Tax Act, 2017 being ultra vires Section 16(1) and objective of the Central Goods and Services Tax Act, 2017
- declaring /reading down Section 16(2)(c) of the Andhra Pradesh Goods and
Services Tax Act, 2017 being ultra vires Section 16(1) and objective of the Central Goods and Services Tax Act, 2017
(e) quashing the Impugned Order dated 16.11.2020 passed by the Respondent No. 6
for being arbitrary, pre-meditated, wholly without jurisdiction, illegal, contrary to st
provisions, prescribed procedures and settled judicial precedents on the subject; WP. No. 24904 of 2020:
Between:
Bharti Telemedia Limited, Rep. by its Assistant Manager-Legal & Regulatory, Mr. Rajiv Praveen Kumar, Having office at D. No 40-1-140, 2/3 Sri Pothuri complex, MG Road, Labbipet, Vijayawada 520010, Andhra Pradesh
…Petitioner
AND
- Union of India, Represented by the Secretary, Ministry of Finance Department of Revenue, Government of India North Block, New Delhi-110001
- State of Andhra Pradesh, Represented by its Principal Secretary, Revenue CT-II Department, Secretariat, Velagapudi, Amaravati
- Goods and Services Tax Council, Through its Chairman, GST Council
Secretariat, 5″ Floor, Tower Il, Jeevan Bharti Building, Janpath Road, Connaught Place, New Delhi-110 001
4. Central Board of Indirect Taxes and Customs, Through its Chairman, North
Block, New Delhi- 110 001
5. Chief Commissioner of State Tax, D.No.5-59, R. K. Spring Valley Apartments,
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Bharti. Telemedia Limited vs Union Of India on 11 February, 2021
Bandar Road, Eedupugallu Village, Kankipadu Mandal, Vijayawada, Krishna District, Pin-521151
6. Assistant Commissioner (ST), Suryabagh Circle, 4th Floor, Vuda Complex, Sirupuram, Visakhapatnam
Respondents
WHEREAS the Petitioner above named through his Advocate K. Srinivasa Rao,
presented this Petition under Article 226 of the Constitution of India praying that in t
circumstances stated in the affidavit filed therewith, the High Court may be pleased to
issue an appropriate writ, order or direction particularly in the nature of ‘Writ of Cer
or Prohibition’
(a)declaring Section 16(2)(c) of the Central Goods and Services Tax Act, 2017 as
discriminatory and violative of Article 14, Article 19 and Article 300A of the Constitut
of India and thus unconstitutional
- declaring Section 16(2)(c) of the Andhra Pradesh Goods and Services Tax Act, 2017 as discriminatory and violative of Article 14, Article 19 and Article 300A of the Constitution of India and thus unconstitutional:
- declaring /reading down Section 16(2)(c) of the Central Goods and Services Tax Act, 2017 being ultra vires Section 16(1) and objective of the Central Goods and Services Tax Act, 2017;
- declaring /reading down Section 16(2)(c) of the Andhra Pradesh Goods and Services Tax Act, 2017 being ultra vires Section 16(1) and objective of the Central Goods and Services Tax Act, 2017;
- quashing the Impugned Order dated 16.11.2020 passed by the Respondent No. 6 for
being arbitrary, pre-meditated, wholly without jurisdiction, illegal, contrary to statut
provisions, prescribed procedures and settled judicial precedents on the subject;
AND WHEREAS the High Court upon perusing the petition and affidavit
filed herein and upon hearing the arguments of Sri K. Srinivasa Rao, Advocate for the
Petitioner in both petitions, and Sri N. Harinath, Asst. Solicitor General for Responden
Nos 1 and 3 and GP for Commercial Tax for Respondent Nos 2, 5 and 6, and of Sri Suresh Kumar Potturu Standing Counsel for Respondent No.4, directed issue of notice to the Respondents herein returnable in three weeks to show cause as to why this WRIT PETITION should not be admitted.
You viz:
- The Secretary, Ministry of Finance Department of Revenue, Government of India North Block, Union of India, New Delhi-110001
- The Principal Secretary, Revenue CT-II Department, State of A.P., Secretariat, Velagapudi, Amaravati
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Bharti. Telemedia Limited vs Union Of India on 11 February, 2021
- The Chairman, Goods and Services Tax Council, GST Council Secretariat, 5′ Floor, Tower ll, Jeevan Bharti Building, Janpath Road, Connaught Place, New Delhi-110 001
- The Chairman, Central Board of Indirect Taxes and Customs, North Block, New Delhi- 110 001
- The Chief Commissioner of State Tax, D.No.5-59, R. K. Spring Valley Apartments, Bandar Road, Eedupugallu Village, Kankipadu Mandal, Vijayawada, Krishna District, Pin-521151
- The Assistant Commissioner (ST), Suryabagh Circle, 4th Floor, Vuda Complex, Sirupuram, Visakhapatnam .
are directed to show cause either appearing in person or through an Advocate, as to
why in the circumstances set out in the petition and the affidavit filed therewith (copy
enclosed) this WRIT PETITION should not be admitted.
WP. No. 24826 of 2020: IA NO: 1 OF 2020
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in W.P, the High Court may be pleased to grant stay on operation the Impugned Order dated 16.11.2020 passed by Respondent No. 6, consequently — direct the Respondents not to take any coercive steps for recovery of demand, Interest and Penalty, pending disposal of WP No. 24826 of 2020, on the file of the High Court.
WP. No. 24904 of 2020: IA NO: 1 OF 2020
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in W.P, the High Court may be pleased to grant stay on operation the Impugned Order dated 16.11.2020 passed by Respondent No. 6, consequently
direct the Respondents not to take any coercive steps for recovery of demand, Interest and Penalty, pending disposal of WP No. 24904 of 2020, on the file of the High Court.
The Court made the following
ORDER:
Heard Mr. Tarun. Gulati, learned Senior Counsel for the Petitioners, assisted by Mr. Nikil Gupta & Mr.Srinivasa Rao Kudupi in both the cases.
- Also heard Mr. N.Harinath, learned Assistant Solicitor General for Respondent No.1 & 3; Mr. Y.N.Vivekananda, Government Pleader for Respondent No.2, 5 & 6, and Mr. Suresh Kumar Routhu, Counsel for Respondent No.4.
- Issue notice, returnable in three weeks.
- No formal steps are called for as the Respondents are duly represented. However, extra copies be furnished.
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Bharti. Telemedia Limited vs Union Of India on 11 February, 2021
- In the two Writ Petitions, one filed by Bharti Airtel Limited and the other by Bharti Telemedia Limited, the petitioners challenge Section 16(2)(c) of the Central Goods and Services Tax Act, 2017 (for short ‘CGST Act’), as ultra vires and unconstitutional. Challenge is also made to separate orders, both dated 16.11.2020, passed by Respondent No.6, whereby, assessment of an amount of Rs.11,44,83,005/- (in W.P.No.24826 of 2020) and Rs.47,48,748/- (in. W.P.No.24904 of 2020) was confirmed and the assesse was directed to pay the said tax along with the applicable penalty under Section 73 and interest payable thereon, under Section 50 of the Andhra Pradesh Goods and Services Tax (for short ‘APGST Act’), CGST Acts, 2017.
- I.A.No.1 of 2020 in W.P.No.24826 of 2020 and I.A.No.1 of 2020 in W.P.No.24904 of 2020 are applications praying for stay of operation of the impugned order(s) dated 16.11.2020.
- Learned Senior Counsel for the petitioners, while praying for an interim order, has submitted that though the petitioners had paid tax, the respondent no.6 had arbitrarily rejected the Input Tax Credit (ITC) on account of mismatch between ITC claimed in Form GSTR-3B vis-a-vis ITC reflecting in Form GSTR -2A on the GST portal. He submits that because of Section 16(2)(c) of the CGST Act, benefit of ITC is denied to the petitioners on account of default of the supplier, . over whom the petitioners do not have any control, in paying tax to the Government after having collected the same from the petitioners. It is also submitted that in the Value Added Tax (WAT) regime, similar provision was struck down.
- Mr. Gulati has also drawn the attention of the Court to Section 107 of the CGST Act and submits that the petitioners have fulfilled the condition of filing appeal before the appellate authority as the petitioners had deposited 10% of the disputed amount of tax. He contends that as such, in the event of filing an appeal, under the provisions of the CGST Act, recovery proceedings for the balance amount would be deemed to have been stayed. Accordingly, he submits that this Court may stay the impugned order(s) dated 16.11.2020.
- Learned counsel appearing for the Respondents| submit that there is no illegality in the impugned order(s) dated 16,11.2020 and the petitioners will not be entitled to any benefit unless Section 16(2)(c) of the CGST Act is struck down and therefore, no interim order is called for. It is also submitted that there is fundamental difference between CGST regime and VAT regime, and so an analogy with VAT regime cannot be drawn.
- Section 16 provides for Eligibility and Conditions for taking ITC. Entitlement for ITC is subject to certain conditions and Section 16(2)(c) provides that subject to Sections 41 and 43A of the Act, the amount claimed as ITC is actually paid to the Government. Admittedly, aforesaid condition precedent for taking ITC has not been fulfilled.
- In view of the above, we are of the considered opinion that no _ interim order is called for and accordingly, prayer for interim order is rejected.
- I.A.No.1 of 2020 in W.P.No.24826 of 2020 and I.A.No.1 of 2020 in W.P.No.24904 of 2020, accordingly, are dismissed.
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Bharti. Telemedia Limited vs Union Of India on 11 February, 2021
- Respondent No.4 may file counter affidavit(s) within a period of three weeks from today. Reply affidavit(s) thereto may also be filed by the petitioners.
- List both these cases together after 3 (three) weeks.
SD/- G. Srinivasa Re y ASSISTANT .EGISFRAR ITTRUE COPY// AAC For ASSISTANT REGISTRAR To,
- The Secretary, Ministry of Finance Department of Revenue, Government of India North Block, Union of India, New Delhi-110001
- The Principal Secretary, Revenue CT-ll Department, State of A.P., Secretariat, Velagapudi, Amaravati
- The Chairman, Goods and Services Tax Council, GST Council Secretariat, 5th Floor, Tower Il, Jeevan Bharti Building, Janpath Road, Connaught Place, New Delhi-110 001
- The Chairman, Central Board of Indirect Taxes and Customs, North Block, New Delhi- 110 001
- The Chief Commissioner of State Tax, D.No.5-59, R. K. Spring Valley Apartments, Bandar Road, Eedupugallu Village, Kankipadu Mandal, Vijayawada, Krishna District, Pin-521151
- The Assistant Commissioner (ST), Suryabagh Circle, 4th Floor, Vuda Complex, Sirupuram, Visakhapatnam (Addressee Nos 1 to 6 by RPAD- along with a copy of petition and affidavit)
- One CC to SRI. K. Srinivasa Rao, Advocate [OPUC]
- One CC to SRI. N. Harinath (Asst Solicitor General), High Court of A.P., at Amaravati [OUT)
- Two CCs to GP for Commercial Tax, High Court of A.P., at Amaravati (OUT)
- Two CCs to Sri Suresh Kumar Routhu, Standing Counsel (OPUC)
- One spare copy Skm HIGH COURT HC,J & CPK,J DATED:11/02/2021 NOTICE BEFORE ADMISSION WRIT PETITION NOs: 24826 OF 2020 with IA. No. 1 of 2020 AND WRIT PETITION NOs: 24904 OF 2020 with IA. No. 1 of 2020 Nt 18 FFA 2021 we OY
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