08 15.12. WPA 24840 of 2025

2025 Madhab Patra Ct. No. Vs.

The Assistant Commissioner, CGST & CX, Singur Ab Division, Howrah Commissionerate and others.

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Mr. Ankit Kanodia, Ms. Megha Agarwal, Mr. Piyush Khaitan. … for the petitioner.

Mr. Bhaskar Prosad Banerjee, Mr. Kaustav Kanti Maity.

… for the respondents-CGST & CX.

Ms. Sipra Chanda.

… for the respondent no. 5.

1. This writ petition lays challenge to an order dated June 23, 2025 (uploaded on June 24, 2025) passed by the appellate authority under Section 107 of the CGST Act, 2017/WBGST Act, 2017 (in short “said Act of 2017”) whereby the appellate authority has rejected the petitioner’s appeal filed against the order in original dated March

26, 2024 by the adjudicating authority.

2. The facts relevant for the purpose of the present petition as follows:

a. The petitioner had been issued notice of show- cause cum demand on December 27, 2023 whereby it had been alleged that the petitioner was liable to pay an amount of Rs. 2,48,92,900/- towards excess availment of Input Tax Credit (in short ‘ITC’). By the said notice to show-cause the proper officer also sought for an explanation from the petitioner as to why an amount of Rs.2,30,48,532/- that had already been paid by the petitioner would not be appropriated against the total demand indicated in the notice.

b. The petitioner replied to the said notice to show- cause. However, the petitioner’s reply did not weigh with the adjudicating authority and ultimately the order in original came to be passed on March 26, 2024 thereby disallowing ITC to the tune of Rs. 2,46,92,900/- and ordering appropriation of a sum of Rs. 2,30,48,532/- towards the aforesaid sum.

c. The petitioner assailed the said order in original in appeal before the appellate authority. Such appeal was filed on June 28, 2024.

d. During pendency of the petitioner’s appeal, on November 1, 2024, Section 128A of the said of the said Act of 2017 was notified.

e. Subsequently, on March 27, 2025, the Central Board of Indirect Taxes and Customs (in short ‘the Board’) issued a circular thereby clarifying as follows:

“4.2 Issue 2: Whether (i) the entire amount of tax demanded is required to be discharged and (ii) the appeal is required to be withdrawn for the entire period, where notices/statements/orders issued to taxpayers, pertains to period covered partially under Section 128A and partially by those outside it.

4.2.1. In cases where the notice/statement or order etc. pertains to the period partially covered under Section 128A and partially beyond the said period, Rule 164(4) and proviso to Rule 164(7) have been amended to allow the taxpayer to file an application under FORM SPL-01 or FORM SPA-02 as the case may be after making payment of his tax liability for the periods covered under section 128A. The taxpayer after filing FORM SPL-01 or FORM SPA-02 as the case may, shall intimate the appellate authority or Tribunal his intent to avail the benefit of Section 128A and that he does not intend to pursue the appeal for the period covered under the said Section i.e. FY 2017-18 to 1019-20. The Appellate Authority or Appellate Tribunal as the case may, shall after taking note of the aid request, pass such order for the period other than that mentioned in the said sub-section, as it thinks just and proper.”

f. In order to take advantage of the provisions of waiver of interest and penalty in terms of Section 128A of the said Act of 2017 read with the said circular dated March 27, 2025 issued by the Board, the petitioner made an application before the appellate authority indicating that the petitioner was desirous of availing of the benefit of waiver of interest and penalty in terms of the said provision in respect of Financial Year 2018-19. The petitioner thereafter in terms of the provisions of Section 128A of the said Act of 2017 and the said clarificatory circular of the Board, also made an application before the proper officer on June 12, 2025 seeking waiver of interest and penalt