Mahalaxmi Infra Contract Ltd vs State of Jharkhand

Jharkhand High Court allows revision of GSTR-1 to pass on Input Tax Credit ITC to the correct recepient

Heard learned counsel for the petitioner, Respondent No.5 ECL, Respondent no. 6 MIPL-NKAS (JV), Respondent No.8 GSTN and the Respondent State. Writ petitioner approached this Court to allow it to carry out amendment in its GSTR-1 for the month of January 2019 in order to rectify its mistake of mentioning wrong GSTIN number against the invoices raised on Respondent no.5. The GSTIN number of
petitioner’s own joint venture, Respondent No.6 was inadvertently mentioned therein. Petitioner also sought a direction upon the respondent GSTN to allow respondent No.5 purchaser of the petitioner to avail ITC
pertaining to the said transaction.

2. Petitioner is a company bearing GSTIN number 20AAGCM4615E1Z1 engaged in business of mining. It also undertakes transportation of goods for central government undertakings, including the Respondent no.5 Eastern Coalfields Limited, Central Coal Fields Limited etc. within the State of Jharkhand. In the year 2018 petitioner’s company was engaged by respondent no.5 bearing GSTIN No. 20AAACE7590E3ZX for providing services in relation to removal and re-handling of overburden from Dahernangi OC patch of Rajmahal Area. While filing its return in Form GSTR 1 for January 2019 in March 2019 i.e., within the time prescribed, according to the petitioner an inadvertent error was committed in the GSTIN of Eastern Coalfields Ltd. (GSTIN No. 20AAACE7590E3ZX ) as petitioner’s employee quoted the GSTIN of one MIPL-NKAS (JV) (GSTIN No.20AAEAM0162G1Z9). Petitioner approach this Court as this mistake was realized by it only in June 2021 during final settlement of accounts with Respondent No.5, Eastern Coalfields Limited.

When the matter was taken up on 23rd June 2022, upon hearing the learned counsel for the parties including GSTCouncil, State of Jharkhand and Respondent no.5, this Court encapsulated the grievance of the petitioner and the legal issues raised for consideration of this court. The order dated 23.06.2022 is extracted here under:

“Learned counsel for the petitioner Mr. Kartik Kurmy has submitted that while filing return in Form GSTR-1 for January 2019 in March 2019 i.e. within the time prescribed, an inadvertent error was committed in the GSTIN of Eastern Coalfields Limited (20AAACE7590E3ZX) as petitioner’s employee quoted the GSTIN of one MIPL-NKAS(JV) (20AAEAM0162G1Z9). 2. This entry related to the Tax Invoice No. 01/2018- 19, dated 17.01. 2019 issued by the petitioner which is at page 28 of the writ petition. As a result, the same was not reflected in the Form GSTR-2A of the recipient Eastern Coalfields Limited-Respondent-5. Instead, it got reflected in the Form GSTR-2A of MIPL-NKAS (JV). Extracts of the GSTR-2A concerning MIPL-NKAS (JV) is enclosed at page 62 of the writ petition. Petitioner realized this mistake only in June, 2021 during final settlement of accounts with the respondent No.5 Eastern Coalfields Limited. As a result of this inadvertent error, Eastern Coalfields Limited is not able to avail of the ITC in lieu thereof to the tune of Rs, 2,25,71,684.00/- whereas MIPLNKAS (JV) in whose GSTR-2A such ITC is being reflected is not entitled to avail it. Though the error has no revenue effect but petitioners outstanding bills are being withheld by the respondent No. 5 on account of non-reflection of such ITC in their GSTR-2A. Moreover, petitioner can be made liable for suppression of facts; whereas MIPL-NKAS (JV) can be made liable for suppression of purchases concerning the said invoice and respondent No.5 Eastern Coalfields Limited is not able to avail the ITC. 3. The manner in which a registered person can discover any such error or omission and rectify it as per Section 37 (3) has not yet been notified. Substituted Rules 59 and 60 have also not been notified, as a result, the forms on filling of which by Respondent No. 5 i.e., GSTR- 2, the petitioner might have noticed the error and sought amendment, could not be undertaken. The Form GSTR-2 and GSTR-1A are yet to be notified. In the absence of notification of such rules, petitioner supplier was not in a position to discover the error as there is no scope for such error being corrected by the recipient in Form GSTR-2 which would lead to auto correction of GSTR-1A. The GSTR-1 form are in operation since 1st July 2017 but in absence of the notification of the procedure in terms of section 37 (3) or 38 (3) & (4) and the relevant substituted rules 59 (3) & (4) and 60 (1), petitioner has not been able to make correction in the error in the Form GSTR-1 submitted in March, 2019. 4. Learned counsel for the petitioner has referred to the counter affidavit of the respondent No.1 GST-council at para 6 as per which details filled in the GSTR-1 can be edited and saved multiple times by the taxpayer before the same is submitted and signed digitally. However, no changes can be made after the submission of GSTR-1. Learned counsel for the petitioner has also referred to the following judgments; 1. M/s. Sun Dye Chem Vs. The Commissioner of State Tax, reported in 2020-VIL-523-MAD (Madras High Court). 2. Pentachle Plant Machineries Pvt. Ltd. Vs. Office of the GST Council & Others reported in 2022 U.P.T.C.[VOL.110]-442 (Madras High Court) 5. Mr. Rajesh Lala, learned counsel for the respondent No.5 has not disputed the fact that Form GSTR-2A for the relevant period does not reflect the ITC for the amount Rs.2,25,71,684.00/- to which respondent No.5 is entitled in lieu of purchases made against the Invoice No. 01/2018-19, dated 17.01.2019. That is the reason respondent No. 5 has withheld the final bill due to the petitioner. Petitioner has been communicated such error by a letter dated 30th January, 2021. 6. Mr. Salona Mittal, learned counsel for the State has submitted that any such rectification in Form GSTR-1 would have been done by the petitioner within the time limit prescribed under Section 37(3) of the JGST Act. Form GSTR-1 in column no. 9 provides for amendment of such errors or incorrect entries pertaining to invoice credit notes, debit notes as also GSTIN number which the petitioner has failed to avail. However, learned counsel for the State is not in a position to inform as to whether such ITC inadvertently reflected in the Form GSTR-2A of MIPL-NKAS (JV) has been availed by him or not. 7. Learned counsel for the State has further submitted that noticing of error is not dependent on statutory form, therefore absence of the GSTR- 2 or GSTR- 1A form being notified would not come to the aid of petitioner. He further submits that the whole argument of the petitioner that respondent No. 5 would not avail of ITC as it was not reflected in its GSTR-2A does not hold good, in view of the decision rendered by the Hon’ble Supreme Court in the case of Union of India Vs. Bharti Airtel Ltd. and others, reported in (2021) 54 GSTL 257 SC. He submits that at best the present dispute is inter se between the petitioner and the respondent No.5 8. In such circumstances, we deem it proper to direct impleadment of MIPL-NKAS (JV) through its Director as party respondent No.6 in this writ petition. 9. Learned counsel for the petitioner is allowed to make such addition in the array of respondents during course of the day. Learned counsel for the petitioner undertakes to effect Dasti service of notice on respondent No.6. Requisites for the purpose be filed by Monday. Office is directed to serve draft of notice upon respondent No. 6 by 04.07.2022 on learned counsel for the petitioner. After effecting Dasti service of notice on respondent No. 6, an affidavit to that effect be filed within one week thereafter by the petitioner. 10. Matter be listed on 20.07.2022. 11. Respondent No. 6 would enter appearance by the date fixed and if so advised, file their counter-affidavit also specifically indicating as to whether they have availed ITC wrongly reflected in their GSTR-2A of March 2019 of the value as indicated hereinabove. The respondent No. 6 would also indicate as to whether they have been subjected to any show cause for suppression of purchases by the tax authorities. 12. Learned counsel for the petitioner would enclose the instant order with the Dasti Service.

3. By the instant order, MIPL-NKAS (JV) was impleaded as Respondent number 6 and asked to file counter affidavit, specifically stating whether they have availed ITC wrongly reflected in their GSTR- 2A of March 2019 of the value indicated here in above. It was also asked to indicate as to whether they have been subjected to any show-cause for suppression of purchases by the tax authorities. Respondent No.6 appeared on notice and filed a counter affidavit. The stand of the Respondent No.6 as reflected in its counter affidavit are incorporated in the order dated 20th July 2022. It denied having availed such ITC wrongly reflected in its GSTR-2A. By the said order, upon consideration of the stand of the Respondent No.6 also, this court came to the opinion that all the three parties i.e., Petitioner, Respondent No.5 and 6 should appear before the Joint Commissioner, Administration ( Head Quarters), with the relevant records including their books of accounts and returns of the said period. The Joint Commissioner Administration ( Head Quarters) was therefore impleaded as Respondent No.7 and directed to carry out this inquiry and undertake due diligence with the concerned parties within a period of three weeks. Parties were directed to cooperate and produce all other relevant records called for by the Joint Commissioner Administration (Head Quarters) for the aforesaid purpose.

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