Easwaran Brothers India Private Limited Vs. The Assistant Commissioner (ST) (FAC)

Highlighting the aforementioned facts, the learned counsel on record for the writ petitioner submits that there are two options: carrying forward the Input Tax Credit (ITC) to the GST regime or opting for a refund. When the writ petitioner has opted for a refund, the impugned order ought not to have been issued, particularly when a provisional refund order has already been issued after processing the refund application. Ms. Amirta Dinakaran, the learned Government Advocate, accepted notice for the lone respondent and, on instructions, adverting to the aforementioned provisional refund order made by the lone respondent on 06.10.2022, submitted that the dealer had taken the position that it had mistakenly reversed ITC in June 2017, which led to the issuance of the impugned notice.

Considering the facts and circumstances of the case, a counter from the Revenue is really not necessary. This Court is of the view that the main writ petition can be disposed of by making a simple order after having heard both sides. It is clear from the narrative thus far that the dealer has two options: either to seek a refund or to carry forward the ITC to the GST regime. In this case, the dealer has opted for the former and not the latter. The common portal, which allows the dealer to choose between these two options, is now active until 2024. Under such circumstances, the dealer cannot be compelled to opt for one of the two choices—refund or carrying forward the ITC to the GST regime—when it is, after all, an option provided to the dealer.

The case of the writ petitioner dealer is further supported by the provisional refund order made by the same sole respondent, along with the issuance of what is referred to as ‘FORM-P,’ which clearly quantifies the entitlement of the writ petitioner at Rs.13,36,741/-. Given this clear quantification and the provisional refund order, the issuance of the impugned notice seems unjustified and unwarranted. It is evident that the petitioner has followed the correct procedure, and the authorities have already acknowledged the petitioner’s entitlement through the provisional refund order.

Thus, based on the aforementioned details and the provisional refund order, it is clear that the petitioner’s choice of opting for a refund should be respected. The petitioner should not be forced into carrying forward the ITC to the GST regime against their initial choice. The Court, therefore, considers that the impugned order should be set aside, and the refund process should be completed as per the provisional refund order issued on 06.10.2022. This decision reinforces the importance of respecting the options provided to taxpayers and ensuring that procedural fairness is upheld in administrative processes. The authorities are directed to proceed with the refund of Rs.13,36,741/- to the writ petitioner, thus complying with the provisional refund order and the clear choice exercised by the petitioner.

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