IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3446] THURSDAY ,THE TWENTY FOURTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT HONOURABLE THE CHIEF JUSTICE DHIRAJ SINGH THAKUR THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO WRIT PETITION NO: 15780/2024 Between: M/s. Hanumanthu Ramu ...PETITIONER AND The Union Of India and Others ...RESPONDENT(S) Counsel for the Petitioner: 1. G. Narendra Chetty Counsel for the Respondent(S): 1. Josyula Bhaskara Rao (Sr.SC for CBIC) 2. G.P for Commercial Tax The Court made the following Order: (per Hon’ble Sri Justice R. Raghunandan Rao) Heard Sri G. Narendra Chetty, learned counsel appearing for the petitioner and the learned Government Pleader for Commercial Taxes, appearing for the respondents. 2 HCJ & RRR,J W.P.No.15780 of 2024 2. The petitioner, who is in the business of execution of contracts, had registered itself under the GST regime. The petitioner was required to file the returns, for the month of September, 2019, by 24.10.2020. However, the return was filed on 06.11.2020. 3. The 3rd respondent, issued a show cause notice, on 30.01.2024, calling upon the petitioner to show cause why the Input Tax Credit of Rs.4,21,726/- under the CGST Act and Input Tax Credit of Rs.4,21,726/- under the SGST Act should not be rejected as the return was filed beyond the time provided. The 3rd respondent, had raised this issue in view of the language, in Section 16(4) of the GST Act, which stipulated that a person registered under the GST Act, would not be entitled to take Input Tax Credit in relation to supply of goods or services, where the return, for the month of September, is filed beyond the due date available under Section 39 of the GST Act. 4. The petitioner filed its objections to this show cause notice, dated 30.01.2024. The 3rd respondent, after considering the objections filed by the petitioner had passed an order, dated 30.04.2024. In this order, the 3rd respondent declared that the petitioner was ineligible for claiming Input Tax Credit, for various periods in the year 2018-2019, on the ground that the returns were filed beyond the due date of filing. On this basis, the petitioner was called upon to pay IGST, with interest and 3 HCJ & RRR,J W.P.No.15780 of 2024 penalty of Rs.11,68,598/-, CGST with interest and penalty of Rs.19,05,662/-, SGST of Rs.19,05,662/- aggregating to Rs.49,79,922/-. 5. The aforesaid order, dated 30.04.2024, passed by the 3rd respondent is assailed in the present Writ Petition, on the following grounds: i) The order of assessment, under Section 73 of the GST Act, is beyond the period of limitation set out under the GST Act. The period of limitation is three years while the order has been passed on 30.04.2024, which is beyond the period of three years for the year 2018-2019; ii) The extension of limitation, granted by various orders of the government, is impermissible inasmuch as the requirements of Section 168-A of the GST Act, under which such extension has been granted, has not been complied with; iii) The extension of limitation, under Section 168-A could have been granted only in the event of a force majeure condition. None of the circulars, under which such extension has been given, mention a force majeure situation and accordingly, the circulars would have to be set aside and the impugned order would have to be declared to be beyond limitation; 4 HCJ & RRR,J W.P.No.15780 of 2024 iv) The impugned order does not contain the signature or a Document Identification Number (DIN) and same is fatal and the order has to be declared to be non-est and void; v) Since Section 16(2) of GST Act only stipulates that a registered person is entitled to the benefit of claiming Input Tax Credit if he is able to file a return and submit the documents necessary to show that he is entitled to Input Tax Credit. Since the petitioner has complied with and the requirement under Section 16(2), the 3rd respondent could not have denied the grant of Input Tax Credit to the petitioner. 6. The learned counsel for the petitioner would submit that there was a further legislative development, after the filing of the Writ Petition and that the said legislative development also supports the case of the petitioner. 7. Learned counsel for the petitioner submits that Section 16 was amended, by the Finance Act, 2024 with effect from 27.09.2024, by way of insertion of sub section (5), which reads as follows: “Section-16(5) Notwithstanding anything contained in sub-section (4), in respect of an invoice or debit note for supply of goods or services or both pertaining to the Financial Years 2017-18, 2018-19, 2019-20 and 2020-21, the registered person shall be entitled to take input tax credit in any return under section 39 which is filed up to the thirtieth day of November, 2021”. 5 HCJ & RRR,J W.P.No.15780 of 2024 8. Learned counsel for the petitioner would contend that Section 16(5) overrides the requirements of sub section (4) of Section 16 and the petitioner would be entitled to the benefit of Input Tax Credit as the period concerned is the Financial Year 2018-2019 and the returns have been filed much before 30.11.2021. 9. Heard the learned Government Pleader for Commercial Taxes. 10. A Division Bench of this Court, had considered the same issue, in its judgment dated 19.03.2025 in W.P.No.2555 of 2023. The Division Bench after considering the effect of sub section (5) of Section 16 of the GST Act, in a similar situation, had held that the petitioner, by virtue of the non-obstante clause, available in the provision, would be entitled to avail the credit which was rejected by the Assessing Officers, in the case before the Division Bench. 11. A perusal of the facts in the present case would show that the facts in this case are similar to the facts in the case before the Division Bench in W.P.No.2555 of 2023. 12. In the circumstances, this Writ petition is allowed setting aside the order of Assessment, dated 30.04.2024, and the matter is 6 HCJ & RRR,J W.P.No.15780 of 2024 remanded back to the 3rd respondent to pass a fresh assessment order keeping in view the insertion of Section 16(5) of the CGST Act. There shall be no order as to costs. As a sequel, miscellaneous petitions, pending if any, shall stand closed. DHIRAJ SINGH THAKUR ,CJ R. RAGHUNANDAN RAO, J RJS 7 HCJ & RRR,J W.P.No.15780 of 2024 HON’BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE & HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO WRIT PETITION No.15780 of 2024 (per Hon’ble Sri Justice R.Raghunandan Rao) 24.04.2025 RJS 8 HCJ & RRR,J W.P.No.15780 of 2024