Chakradhari Sharan Singh, J. – Common challenge in the present batch of writ applications filed under Article 226 of the Constitution of India the petitioners is to the constitutional validity of Section 16(4) of the Central Goods and Services Tax Act (‘CGST Act’ in short) and Section 16(4) of the Bihar Goods and Services Tax Act, 2017 (‘BGST Act’ in short) which deny entitlement of Input Tax Credit (ITC) in respect of any invoice or debit note for supply of goods or services or both after due date of furnishing of returns under the respective Sections 39 of the said Acts, for the month of September following the end of financial year to which such invoice or invoice relating to such debit note pertains or furnishing of the relevant annual return, whichever is earlier; same being violative of Articles 14 and 300A of the Constitution of India.

2. Alternatively, the petitioners are seeking a declaration that the conditions as prescribed in Section 16(4) of the CGST/BGST Act are merely procedural in nature and cannot override the substantive conditions for availing ITC prescribed under Section 16(1) and Section 16(2) of the said Acts. It is their case that because of the non obstante clause in Section 16(2) of the CGST/BGST Act, the same shall prevail over Section 16(4) of the Act. Yet another alternative argument has been made on behalf of the petitioners that by reading down the provisions under Section 16(4) of the CGST/BGST Act, this Court should declare that the embargo in the said provision would apply only to restrict claim of ITC in respect of invoices or debit notes received after the end of the financial year beyond September of the preceding financial year.

3. The petitioners are further seeking a declaration that GSTR-3B cannot be treated to be a return prescribed under Section 39(1) of the CGST Act as it does not satisfy the parameters of a return contemplated under Section 39(1) of the said Act. They are also seeking a declaration that Rule 61(5) of the CGST Rules, 2017, as amended retrospectively prescribing Form GSTR-3B as a return under Section 39(1) of the CGST Act is ultra vires Section 39(1) of the CGST Act itself.

4. As all these writ applications involve identical issues pertaining mainly to the constitutional validity of Section 16(4) of the CGST/BGST Act, they have been heard together and are being disposed of by the present judgment and order.

5. We have heard Mr. S.D. Sanjay, learned Senior Counsel, Mr. D.V. Pathy, Mr. Gautam Kumar Kejriwal, Mr. Sriram Krishna, Mr. Akshay Lal Pandit and Mr. Satish Chandra Jha-3, learned counsel appearing on behalf of the petitioners; Dr. K.N. Singh, learned Additional Solicitor General for the Union of India; Mr. P.K. Shahi, learned Advocate General, Bihar and Mr. Vivek Prasad, learned GP-7 for the State of Bihar.

6. The petitioners in all these cases are registered persons within the meaning of Section 2(94) of the CGST/BGST Act. So as to appreciate the background in which these writ applications have been filed, we deem it appropriate to refer briefly to the facts stated in the first case i.e. Gobinda Construction (CWJC No. 9108 of 2021) as the representative case.

7. The petitioner claims to have filed its monthly returns in Form GSTR-1 for the each of the month of financial year 2018- 19, however, it filed its return in GSTR-3B for the period February 2019 and March 2019 on 23.10.2019 and 07.11.2019. The Assistant Commissioner of State Tax, Patna Central, Patna (Respondent No. 6) issued a show cause notice on 20.02.2020 under Section 73 of the BGST Act proposing to disallow ITC for the tax period February and March 2019 on the ground of late filing of return in Form GSTR-3B. It is mentioned in the said notice that ITC had wrongly been availed by the petitioner for the aforesaid period and accordingly the petitioner was asked to furnish reply with supporting documents as evidence in support of the claim, by the date mentioned therein. The said show cause notice, which has b