L THEERTHALINGAM CONTRACTOR vs The Commercial Tax Officer

WP No. 41944 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28-10-2026
CORAM
THE HON'BLE MR JUSTICE KRISHNAN RAMASAMY
WP No. 41944 of 2026
CNR:{HCMA012393982026}
AND
WMP NO. 47031 & 47033 OF 2026
L Theerthalingam Contractor
(Represented by its Proprietor
Mr. Loganathan Theerthalingam)
No. 779, NA, Thurapallam village,
Thiruvallur, Tamil Nadu, 601201.
..Petitioner(s)
Vs
The Commercial Tax Officer
Gummidipoondi Assessment Circle,
No.32, Elephant Gate Bridge Road,
Integrated Commercial Taxes Building,
Room No.113, 1st Floor, Chennai-600 003.
..Respondent(s)
Prayer:
Writ Petition filed under Article 226 of the Constitution of India, praying
for issuance of Writ of Certiorari, calling for the records on the files of the
Respondent herein in FORM GST DRC 07 with Reference No.
ZD3302230571411 dated 13.02.2023 along with the detailed order in GSTIN /
33ABIPT8013H1ZM / 2019-20 dated 13.02.2023 for the tax period April 2019
March 2020 and quash the same
For Petitioner(s): Mr.Kamala Kanth S
For Respondent(s): Mr.B.Sivaraman Govt. Advocate
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WP No. 41944 of 2026
Order
This Writ petition has been filed by the petitioner/taxpayer, who is
registered dealer on the files of the respondent-Department under the provisions
of the Goods and Service Tax Act, 2017 (GST Act)/ Central Goods and
Services Tax Act ( CGST Act) as the case may be, challenging the orders
passed by the respondent-Department, whereby, their claim of ITC was
reversed/negatived and consequently, the petitioners have been directed to pay
tax/penalty/interest.
2. When this Writ Petition is taken up for hearing, the respective learned
counsel for the petitioner and the respondent, would submit that the issue
involved in the present Writ Petition, has been squarely covered by the common
order of this Court, dated 17.10.2024 passed in W.P.Nos.25081 of 2023, etc.,
batch, wherein, this Court has categorically held in paragraphs 9 to 12 as under:
“9. The petitioners in all these Writ Petitions are
registered dealers on the files of the respondent-Department
under the provisions of the Goods and Service Tax Act,
2017/CGST Act 2017. Though the petitioners have filed
GSTR-1 returns in time, however, insofar as claim of ITC is
concerned, since the petitioners were faced with certain
difficulties, such as Financial constraints (as there was
complete lock down due to outbreak Covid-19) health related
ailments, fire accidents, they were unable to file GSTR-3B
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WP No. 41944 of 2026
returns, which prompted them not raising their claim ITC in
time before the prescribed date. Whereas, the respondent-
Department without considering such vital aspects and that
reasons for the delay is not deliberate, issued the show cause
notices to the petitioners, proposing to reverse the ITC
availed and went to the extreme level of confirming the
proposals contained in the show cause notices by passing the
impugned orders,whereby, the claim made by the petitioners
for ITC was reversed and the petitioners have been directed
to tax/penalty/interest. Aggrieved against the impugned
orders, the petitioners are before this Court by way of present
Writ Petitions seeking for setting aside the impugned orders.
10. After the filing of these Writ Petitions, certain
rd
development took place, i.e. that 53 GST Council Meeting
was held on 22.06.2024, and during the said Meeting, the
GST Council recommended for extension of the deadline for
availing ITC on any invoice or debit note under Section 16(4)
of the CGST Act and this extension would be applicable to
any GSTR-3B returns filed for the Fys 2017-18, 2018-19,
2019-20 and 2020-21 with a new deadline deemed to be as
''30.11.2021'', to which, the Presidential Assent was also
obtained by the Government of India on 16.08.2024, whereby,
the financial proposals of the Central Government for the
Financial Year 2024-25 was given effect to vide Finance Act,
(No.2) of 2024, and in view of the aforesaid enactment, the
Ministry of Finance (Department of Revenue) Central Board
of Indirect Taxes and Customs, issued a Notification, bearing
No.17 of 2024-Central Tax, dated 27.09.2024, pursuant to
which, a Circular No.237/31/2024-GST was issued by the
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WP No. 41944 of 2026
Central Board of Indirect Taxes and Customs, which was
addressed to all the Principal Chief Commissioners /Chief
Commissioners/Principal Commissioners/Commissioners of
Central Tax (All), thereby, clarifying the issues regarding
implementation of provision of sub-section (5) and sub-
section (6) in Section 16 of CGST Act, 2017, the impugned
orders are no longer sustainable and liable to be quashed.
In this context, it would be apposite to refer to both Section
16(4) of the CGST Act, 2017, as well as amendment made to
Section 16 (4) by interpolations of sub-sections 16 (5) and
(6), and by insertion of sub-section (5) to Section 16, which
are extracted herein under:-
Section 16 (4)
'' A registered person shall not be entitled to take input tax
credit in respect of any invoice or debit note for supply of goods or
services or both after the thirtieth day of 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.''
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 persons shall be entitled to take
input tax credit in any return under section 39 which is filed upto
the thirtieth day of November, 2021.''
10.1 Thus, a perusal of above Section 16 (5)
makes it clear that 'notwithstanding anything contained in
sub-section 4, referred to above, in respect of any invoice or
debit note for supply of goods or services or both pertaining
to the Fys 2017-18 to 2020-21, the registered persons shall be
entitled to take ITC in any return under section 39 which is
th
filed upto the 30 day of November, 2021.
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WP No. 41944 of 2026
10.2 Thus, this Court considering the fact that the issue
involved in all these Writ Petitions is only with regard to the
availment of ITC, which is barred by limitation in terms of
Section 16 (4) of the CGST Act, and in the light of the
subsequent developments took place, whereby, Section 16 of
the CGST Act was amended and sub-section (5) was inserted
to Section 16, which came into force with retrospective effect
from 01.07.2017, the petitioners are entitled to avail ITC in
respect of GSTR-3B filed in respect of FYs 2017-18, 2018-19,
2019-20 and 2020-21 as the case may be, on or before
30.11.2021, is inclined to quash the impugned orders.
11. Accordingly, this Court passes the following
orders.
i) The orders impugned in all Writ Petitions are quashed
insofar as it relates to the claim made by the petitioners for
ITC which is barred by limitation in terms of Section 16 (4) of
the CGST Act, 2017 but, within the period prescribed in terms
of Section 16 (5) of the said Act.
ii) Therefore, the respondent-Department is restrained
from initiating any proceedings against the petitioners by
virtue of the impugned orders based on the issue of limitation.
iii) In view of the fact that the impugned orders are
quashed, the respondent-Department is directed to take
immediate steps towards de-freezure of the concerned
petitioners bank accounts, which have been freezed in
furtherance of the impugned orders, by sending intimation to
the concerned bankers.
iv) In the event, in the interregnum, i.e. during the
pendency of these Writ Petitions, if any orders are proposed
to be passed towards recovery, same shall be dropped
immediately upon production of the order copy by the
petitioners, in whichever case, where, there is no interim
order.
v) It is also made clear that if at all, if there is any tax
amounts were collected from the petitioners based on the
impugned assessment orders from the cash ledgers/credit
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WP No. 41944 of 2026
ledgers of the petitioners concerned, the same shall be
refunded to them or by means of orders of this Court or even
in the absence of any order from this Court, if any amount is
deposited either in the cash ledgers/credit ledgers of the
petitioners concerned, the same is permitted to be
utilized/adjusted by the petitioners towards payment of future
tax.
vi) Insofar as the apprehension expressed by the learned
Additional Advocate General for the respondent-Department
that in certain Writ Petition apart from the issue on
limitation, challenges have also been made to the order
related to issues such as discrepancies in availing the
ITC/wrong availment of ITC/excess claim of ITC/Fake ITC
claim, as the case may be, or such other issues, liberty is be
granted to the respondent-Department to proceed against the
assessees/petitioners in furtherance of the impugned orders
in accordance with law.
12. In the result, all the Writ Petitions are
allowed on the aforesaid terms. No costs. Consequently,
connected Miscellaneous Petitions are closed.”
3. Therefore, the learned counsel for the petitioner would submit that
the above said order will hold good for the present Writ Petition also and hence,
prayed to dispose of the Writ Petition. The learned counsel appearing for the
respondent would fairly accede to the same.
4. In view of the above, this Court passes the following:
i) The impugned order dated 13.02.2023 is
quashed insofar as it relates to the claim made by the
petitioner for ITC which is barred by limitation in terms of
Section 16 (4) of the CGST Act, 2017 but, within the period
prescribed in terms of Section 16 (5) of the said Act.
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WP No. 41944 of 2026
ii) Therefore, the respondent-Department is
restrained from initiating any proceedings against the
petitioners by virtue of the impugned order based on the issue
of limitation.
iii) In view of the fact that the impugned order
is quashed, the concerned Bank is directed to de-freeze the
petitioner’s bank account, if any, which have been freezed in
furtherance of the impugned order, by sending intimation to
the concerned bankers.
iv) In the event, in the interregnum, i.e. during
the pendency of this Writ Petition, if any orders are proposed
to be passed towards recovery, same shall be dropped
immediately upon production of the order copy by the
petitioners, in whichever case, where, there is no interim
order.
v) It is also made clear that if at all, if there is
any tax amounts were collected from the petitioner based on
the impugned assessment order from the cash ledgers/credit
ledgers of the petitioner concerned, the same shall be
refunded to them or by means of orders of this Court or even
in the absence of any order from this Court, if any amount is
deposited either in the cash ledgers/credit ledgers of the
petitioner concerned, the same is permitted to be
utilized/adjusted by the petitioners towards payment of future
tax.
vi) If there is any challenge related to issues such
as discrepancies in availing the ITC/wrong availment of
ITC/excess claim of ITC/Fake ITC claim, as the case may be,
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WP No. 41944 of 2026
or such other issues, liberty is be granted to the respondent-
Department to proceed against the assessee/petitioner in
furtherance of the impugned order in accordance with law.
5. Accordingly, the present writ petition is allowed on the aforesaid
terms. No costs. Consequently, connected miscellaneous petition in
WMP.No.47033 of 2026 is closed. The miscellaneous petition in
WMP.No.47031 of 2026, which was filed to dispense with the production of
original impugned order, is ordered.
28-10-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
nsa
To
The Commercial Tax Officer
Gummidipoondi Assessment Circle,
No.32, Elephant Gate Bridge Road,
Integrated Commercial Taxes Building,
Room No.113, 1st Floor, Chennai-600 003.
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WP No. 41944 of 2026
KRISHNAN RAMASAMY J.
nsa
WP No. 41944 of 2026
AND
WMP NO. 47031 OF 2026,WMP NO. 47033 OF 2026
28-10-2026
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