The introduction of S.16(5) provides new grounds for claiming input tax credit, superseding the earlier provision S.16(4).

1. The petitioner is a registered tax payer under the provisions of the CGST / KGST Act, 2017. The grievance of the petitioner is against Ext.P1 order of assessment pertaining to the year 2018-19, in which the input tax credit claimed by the petitioner was declined. The reason for rejecting the claim was that the petitioner failed to submit the returns pertaining to the months of May 2018 - March 2019 within the period stipulated under S.16(4) of the CGST Act . The case of the petitioner is that, in view of S.16(5), which was subsequently introduced in the CGST Act , the petitioner is entitled to get the input tax credit, in view of the fact that the petitioner had submitted the returns pertaining to the relevant period before the cut off date contemplated under S.16(5) of the Act. It was in these circumstances that this writ petition was submitted.

2. I have heard Sri. Jaikrishna, the learned counsel for the petitioner, and Smt. Reshmitha R. Chandran, the learned Government Pleader for the respondents.

3. The learned Government Pleader pointed out that even going by the pleadings, the petitioner had earlier submitted a writ petition, which was numbered as W.P.(C.) No.31219/2022, before this Court challenging the constitutional validity of S.16(4) of the CGST Act , and as per the common judgment dated 04/06/2024, this Court rejected the said contention, and the writ petitions were dismissed. Therefore, it was pointed out that the petitioner cannot claim the relief in this writ petition without seeking the modification in the said judgment either by challenging or seeking review of the same.

4. However, after considering all relevant aspects, I am not inclined to accept the said contention. This is particularly because, the claim now raised by the petitioner is based on a statutory provision that was introduced later, and it specifically provides for input tax credit, subject to the condition that the returns are filed before the 30th day of November, 2021. Apart from the fact that the returns are to be filed within the said cut off date, no other conditions are imposed in S.16(5), and it is also a relevant aspect to notice that S.16(5) starts with the wording "notwithstanding anything contained in SubS.4." This would indicate that, once the tax payer submits the return within the period stipulated in S.16(5), the time limit contemplated under S.16(4) of the CGST loses its significance. Therefore, this being a separate statutory provision subsequently introduced, it amounts to a fresh cause of action for the petitioner to claim the relief sought in this writ petition. Therefore, I find that, the fact that the petitioner had earlier approached this Court challenging S.16(4) of the CGST Act and got an adverse order, cannot be a reason not to entertain this writ petition.
In such circumstances the petitioner is entitled to the benefit of S.16(5), and hence an interference is required. Accordingly, this writ petition disposed of quashing Ext. P1, with a direction to the 2nd respondent to reconsider the matter and pass fresh orders, by giving the petitioner an opportunity to be heard. While passing the said order, the benefit of S.16(5) shall be granted to the petitioner, if the petitioner is otherwise entitled to the same.