The Tripura High Court disallowed the rectification of tax invoices as not covered under Section 161 of the CGST Act, and Limitation Act is not applicable to Special statute.
The petitioner, M/s Kiran Enterprise is a sole proprietorship firm and the distributor of Airtel as engaged by Bharati Hexacom Limited for Dharmanagar. The tax invoices used to be prepared by Bharati Hexacom Limited in the name of M/s New Kiran Enterprise however, he mistakenly entered the name of M/s Kiran Enterprise.
When a search was carried out under Section 67(2) of CGST Act, it was revealed from GSTR-3B for the period from July 2017 to 31st March 2018 that the Petitioner had been found to have wrongly utilized excess Input Tax Credit at Rs.20,03,893.80, as per Form GSTR- 2A (inward supply). By the order of seizure tax invoices were seized by the Superintendent of State Tax, Dharmanagar, and a show cause notice was issued to the Petitioner to show cause as to why the amount (excess ITC) along with interest payable thereon and penalty equivalent to the tax be levied and why further penal action should not be taken under Clause (e) of Section 122(3) OF TSGST Act.
The Petitioner by filing a reply to the notice clarified that owing to the inadvertent name of M/s Kiran Enterprise was recorded in the tax invoice instead of M/s New Kiran Enterprise, to Respondent and the order dated November 15, 2018 was passed raising the claim in the form No. GST DRC-07 asking to deposit the tax, penalty and interest.
Further, the Petitioner filed a petition dated November 08, 2019 for rectification of the error in the tax invoice and to recall the SCN dated October 10, 2018 and the order dated November 15, 2018, and to condone the delay occurred in filing such petition laying the reason for delay.
Having considered the plea, the Respondent by his communication had conveyed the decision that the adjudicating authority has no right to rectify an error after expiry of a period of more than six months.
The Petitioner by way of this Writ petition filed, has challenged fundamentally two orders being the order dated November 15, 2018 and the decision contained in the communication dated December 17, 2019.
The issue raised was whether the Respondent had the authority to condone the delay on the face of the petition filed for rectifying the defects or errors in the notice dated October 10, 2018 and the order dated November 15, 2018.
The division bench of Justice S. Talapatra and Justice S. G. Chattopadhyay rejected a petition filed along with condonation of delay application for rectification of error in the name of the party in the tax invoice under Section 161 of the CGST Act for being barred by limitation.
The court further held that the rectification as sought is not covered by Section 161 of the CGST Act and when a legal action is barred by limitation unless that bar is overcome, no decision can be rendered on merits.Subscribe Taxscan AdFree to view the Judgment