Brief facts of the case

1. That the petitioner M/s. Skyline Pipes and Tubes is a partnership

firm registered with department with GSTIN 27ADZFS5114K1ZD and

is administered by state GST authorities. The petitioner had opted

quarterly filing of the return for the period 01.04.2021 to 31.12.2021

and monthly filing of return for the period 01.01.2022 to 31.03.2022.

The petitioner has made an error while filing GSTR 3B(Q) for the

period ending 30.09.2021 wherein while filing GSTR 3B CGST as well

as SGST amount was entered as Rs. 1,56,744/- instead of Rs.

15,67,144/- resulting in short availment of CGST and SGST of Rs.

14,10,400/-. The error was noticed by the petitioner while filing GSTR

9 return for the Financial Year 2021-22 in December, 2022. The

petitioner seeks to rectify the GSTR-3B return for any of the month

from 30.09.2021 to 30.10.2022, either online or through GST portal

or manually or alternatively claim this credit in Form GSTR 3B for the

subsequent months or claim in Form GSTR 9, either online or

manually, in such a way that the ITC of the petitioner is reflected in

the electronic credit ledger. As per the provisions of Section 16(4) of

CGST Act, 2017, the petitioner was entitled to take input tax credit in

respect of any invoice or debit notes for supply of goods or services or

both after the 30th November, following the end of financial year to

which such invoice or debit note pertains or furnishing of the relevant

annual return, whichever is earlier. That is, ITC for the FY 2021-22

can be claimed only upto 30.11.2022 or in the GSTR-3B returns filed

upto 30th November, 2022. The error was noticed by the petitioner in

December, 2022 and a grievance was raised on GST portal on

08.12.2022 to rectify the error. GST portal vide their email dated

12.12.2022 sought the details of GSTR-2B for the respective period. A

response from GSTIN was received vide email dated 21.12.2022 to the

petitioner the same is reproduced as under:

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 "Dear Taxpayer,
You have reported issue related to auto population
Of the data from GSTR-1/ R2B to 3B. There is no
process to amend GSTR-3B form once it is
Offset/Filed. As per our system records you have
already filed 3B form for the reported month.
Please adjust the same ITC in your next month
manually. For any other queries/concerns, please
raise a ticket with helpdesk.
Thanks, Team GSTN."

2. The Petitioner understands that point No. 8E of Form GSTR- 9

providing space to report ITC available but not availed would be

applicable only in cases wherein date of annual return is prior to the

specified date to claim the ITC, i.e., 30 th November, 2022 in this case.

PARAWISE COMMENTS IN RESPECT OF GROUNDS OF PETITION

A. The error has been made by the petitioner in the quarter ending

30.09.2021, the same was correctible in quarterly GSTR 3B(Q) returns

filed in the quarter ending 31.12.2021 as well as for the subsequent

GSTR 3B returns filed till 30.11.2022. Also, Section 16(4) of the CGST

Act, 2017 enisages the timeline of 30 th November of subsequent year.

Thus, there is no violation of Article 14 of the Constitution of India.

B. The petitioner has relying upon the decision of Hon’ble Supreme Court in

the matter of Eicher Motors Limited, and Anr. v. Union ofIndia and Ors.

reported in 1999 (106) ELT3 (S.C.) and Collector of Central Excise, Pune

and Ors. w. Dai Ichi Karkaria Ltd. and Ors., 1999 (112) BLT 353 (S.C).,

state that accrued right cannot be taken away due to a mere clerical

error. The aforesaid case law is in relation to the rule of MODVAT not in

consonance with the Section of the Act. However, in the present case, the

time limit for availment of ITC in the return has been prescribed under

the provisions of Section 16(4) of CGST Act, 2017.

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C. No comments to offer.

D. The petitioner has already exchausted the time line of 30 th of November,

2022. Thus, there is no delay on the party of the GSTIN system as the

grievance was raised on 08.12.2022. Further, the GSTIN helpdesk is only

for the technical difficulties for the taxpayer. The GST helpdesk cannot

make any amendment which is contrary to the provisions of CGST Act,

2017.

E. The petitioner has cited various case laws in their support, however all

the case laws cited are in relation to amendment in form GSTR 1 and are

not relevant in the present case. Contrary to that Hon’ble Supreme Court

in the case of Union Of India Through Its ... vs Bharti Airtel Ltd.

on 28 October, 2021 have held in Para 50 of the order that

assessee cannot be permitted to unilaterally carry out the

rectification of his returns submitted electronically in Form

GSTR-3B. The relevant portion has been reproduced as under:

“In any case, the direction issued by the High Court being in the nature of

issuing writ of mandamus to allow the writ petitioner to rectify Form GSTR -

3B for the period July to September 2017, in the teeth of express statutory

dispensation, cannot be sustained.”

F. No comments to offer.

G. The petitioner contends that they have right to claim ITC under the

provisions of Section 16 of CGST Act, 2017. However, subsection(4) of

Section 16 clearly states that the last date for availing ITC for a

particular year is 30 th November of the next financial year. Thus, the

petitioner’s prayer is contrary to provisions of Section 16 of CGST Act,

2017;

H. No comments to offer;

I. No comments to offer as the case laws cited are in relation to Tran-I;

J. No comments to offier;

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K. There is no deficiency in the GSTIN system, as contemplated by the

petition. It was petitioner’s fault that they didn’t avail the input tax

credit(ITC) within the time prescribed in law i.e. before 30.11.2022

L. Same as above in Para(B);

M. No comments to offier;

N. No comments to offer;

O. No comments to offer;

P. No comments to offer;

Q. No comments to offer;

R. No comments to offer;

S. No comments to offer;

T.

Para 46-55 : No comments to offer;

Para 56: It is prayed before the court that the application of the petitioner be

dismissed, because As per the scheme of the 2017 Act, it is

required that the registered person is obliged to do selfassessment of ITC,

reckonits eligibility to ITC etc. primarily on the basis of his office record and

books of accounts required to be statutorily preserved and updated from

time to time. The same has been not done by the petitioner during the

period of 30.09.2021 to 30.11.20212 i.e. for a long gap of 14 month and

relief is being sought in the form of amendment in the statutory returns

contrary to the provisions in the CGST Act, 2017.

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