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	Blog Categories All Constitution (3) Criminal Laws (27) Income Tax Updates (99) miscellaneous (3) Professional Updates > Constitution Professional Update Category: Constitution , Posted on: 08/06/2024 , Posted By: CA SHIKHAR GARG Visitor Count:48 Professional Update (Goods and Service Tax Case laws) Civil Writ 31559/2019 (Kerala HC) M. Trade Links vs UOI & CBIC & State of kerala. Facts The petitioner challenged the constitutional vires of the provision of section 16(2)(c ) and section 16(4). The section 16(2)(c ) wherein the burden of the tax deposit to the government is casted on the supplier. The petitioner contents that the doctrine of impossibility is attached wherein, the parliament cannot legislate the laws to compel the taxpayer to do the impossible. Therefore, accordingly to the petitioner, the said law is violative of section 19(1)(g). The petitioner challenges section 16(4) wherein, it is argued that when the statutory right have been enacted by the parliament for granting to ITC in section 16(1), then the legislature cannot put the restriction on the time limit of the availing the ITC. Issue Whether the section 16(2)(c ) and section 16(4) of the CGST Act is constitutional valid. Held. Kerala High Court upheld the validity of the section 16(2)(c ) of the CGST Act. In the Pre-GST regime, the same kind of regime is being uphold by the various constitutional court. If the supplier has not deposited the tax with the government, then the receiver gets a contractual right with the supplier to recover the money, which is not deposited to the government. Moreover, for seamless transfer of the credit, which is one of the main facets of the GST could be comprised. The states could face crores of loss, if the tax is not deposited and the credit is provided to the government. The Kerala high court upheld the constitutional validity of section 16(4) of the CGST Act, as the Act provides a reasonable time that is a minimum of 8 month time to avail the input tax credit. Further, such restriction is reasonable otherwise, the budget preparation and the compliance analysis of the government would never be prepared. The government would never be able to analysis the budgetary preparation since the credit claim could arise. Moreover, the availment of ITC is not a fundamental or a constitutional right of the taxpayer. It is a statutory right, which is based on the conditions stipulated to avail it. Being a fiscal statue, the act has to be read in strict sense and the time limit appears to be reasonable to the court. Therefore, the constitutional validity of section 16(2) © and section 16(4) of the CGST Act is upheld. High court sets aside the impugned order and the order to pass a afresh order after providing an opportunity of being heard to the petitioner. (Disclaimer: The information provided by the author in the article is for general informational purposes only. All information provided is in the good faith, however we make no representation or warranty of any kind, express or implied, regarding the accuracy, adequacy, validity, reliability, availability or completeness of any information in the article.) CA Manoj Garg 9811275735 Disclaimer: The content of the blog does not create any responsibility of the firm / its authorized persons whose website is being accessed. The blog is not for legal use. Kindly verify the correctness of data/contents from your own sources. This is only for information purpose. To Activate comments you need to provide details for google authentication and facebook authentication

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