M/S A2Z INFRA ENGINEERING LTD vs UNION OF INDIA AND ORS.

25.06.26
18 Ct. No.10
Sws.M
WPA 22309 of 2024


M/s A2Z Infra Engineering Ltd.
vs.
The Union of India &Ors.

Mr. Punit Agarwal
Mr. AvraMazumber
Ms. Alisha Das
Ms. Elina Dey
Ms. Rupamita Ghosh
Mr. Debdut Banerjee
….for the petitioner

Mr. Vipul Kundalia, Sr. Adv.
Mr. TapanBhanja
…for the Union of India
Ms. Manasi Mukherjee
Mr. Bijitesh Mukherjee
….for the respondent No. 7/CGST

1. Affidavit of service filed in Court today is taken on
record.
2. The petitioner challenges inter alia, the legality
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and sustainability of the order dated 29 April,
2024 for the assessment year 2018-19 passed
under Section 73 of the said Act.

3. The core issues involved in the instant writ
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petition is whether the order dated 29 April,
2024 passed under Section 73 of the CGST Act,
2017 (hereinafter referred ‘the said Act’) for the
assessment year 2018-2019 is liable to be
quashed and set aside on the ground that the
petitioner cannot be denied the benefit of the
amendment introduced by way of insertion of sub-
section 5 of section 16 of the said Act vide the

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Finance (No. 2) Act. 2024, which retrospectively
regularized the Input Tax Credit for financial year
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2017-18 to 2020-21 if returns are filed up to 30
November, 2021.
4. It is submitted the Section 16(5) of the said Act,
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subsequently inserted with effect from 1 July,
2017 by amending Section 16, provides:
“(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. It is contended that the petitioner filed the GSTR-
3B returns for July, 2018 to March, 2020 prior to
30.11.2021. By virtue of the inserted clause, as
amended in section 16, the petitioner cannot be
denied the benefit of such amendment. Hence, the
input tax credit denial is illegal.
6. The petitioner submits that for the year 2018-19,
respondent no. 7 imposed a demand of Rs.
4,22,88,416/- on the petitioner vide order in
original dated 6.3.23.
7. Notwithstanding the insertion of the clause
introduced by the Finance (No. 2) Act. 2024, the

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respondent authorities have issued the impugned
order dated 30.04.2024 for the same assessment
year when a demand of Rs. 4,22,88,416/- has
already been imposed vide order dated 06.03.2023
for the period 2017-18 to 2019-20. Issuance of
such fresh order dated 30.4.24 for assessment
year 2018-19 amounts to double adjudication for
the same cause of action.
8. In the present case the petitioner filed the return
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beyond due date but prior to 30 November, 2021.
9. In this context, the petitioner relies upon a
judgment of a Co-ordinate Bench of this Court in
the case of Hiranmoy Dutta vs. State of West
Bengal reported in [ 2025] 172 taxmann.com
750 (Calcutta) at paragraph 6, which is
reproduced below:
“6. Having heard the learned advocates
appearing for the respective parties
and noting that in this case, the ITC
had been disallowed by reasons of the
petitioner filing the return in Form
GSTR 3B beyond the due date, and on
the basis of insertion of subsection (5)
to Section 16, the returns filed by the
petitioner which are in respect of the
tax period from July, 2018 to March
2020 have now been regularized having
regard to the new cut of date provided
for in Section 16(5) of the said Act, I am
of the view that the petitioner cannot

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be denied the benefit of the aforesaid
amendment.”
10. Learned counsel appearing for the respondent
authorities vehemently opposes the same and
submits that the case of the petitioner does not
squarely fall within the inserted clause which has
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been introduced with effect from 1 July, 2017
and the order has already been passed by the
authority concerned. The order in original dated
06.03.2023 has already attained its finality.
11. Section 16(5) cannot be invoked to reopen a
concluded assessment. The benefit of the
amendment is conditional upon the filing return
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by 30 November, 2011. The petitioner has failed
to demonstrate such compliance.
12. It is further submitted by the respondent
authorities that the order dated 29.4.24 is a
rectification to the order in original dated 6.3.23
and not a fresh proceedings. Hence the bar of
double jeopardy does not apply. The petitioner has
failed to place on record any document to show
that GSTR-3B for July 2018 to March 2020 have
been filed upto 30.11.21. The benefit is factual
and conditional.
13. Having heard the parties and upon perusing the
record, this Court finds that the petitioner has
made out a prima facie case and interference is
warranted, at this stage.

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14. This Court finds that by virtue of the inserted
clause, as amended in Section 16, the petitioner
cannot be denied the benefit of such amendment.
The amendment is curative and retrospective from
01.07.2017.
15. The ratio in Hiranmoy Dutta (supra) is squarely
applicable. Once returns are filed by 30.11.21,
input tax credit for July 2018 to March 2020 is
regularized.
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16. In view of the above, the order dated 29 April,
2024 is hereby quashed and set aside and
accordingly, the writ petition is allowed and
disposed of.
17. The order in original dated 6.3.2023 shall be re-
adjudicated by the Joint Commissioner in light of
Section 16(5) of the said Act within 6 weeks after
verifying the date of filing GSTR 3B. The
respondent authorities are restrained from taking
any coercive steps till the date of re-adjudication.
18. Since no affidavit has been called for, the
allegations made in the writ petition are deemed
not to have been admitted by the respondents.
19. Urgent Photostat certified copy of this order be
supplied to the parties, if applied for, as early as
possible.

(Smita Das De, J.)