ITC Denial Quashed: Supplier Had Paid Tax with Interest

By | January 27, 2026

ITC Denial Quashed: Supplier Had Paid Tax with Interest

 

Issue

Whether an assessment order raising a demand for Input Tax Credit (ITC) under Section 74 is sustainable when the denial is based on the alleged non-payment of tax by the supplier, despite evidence showing the supplier eventually complied.

Facts

  • Period: February – March 2020.

  • The Demand: The Department issued an order under Section 74 (invoking fraud/suppression) against the petitioner-assessee. The core allegation was that the petitioner claimed ITC for supplies where the supplier had failed to pay the tax to the Government.

  • Court Proceedings: In response to the writ petition, the Departmental Authorities checked their records and informed the High Court that the supplier had indeed filed the due returns and paid the tax along with applicable interest.

  • Admission: The Revenue admitted that, given this payment by the supplier, the ITC was rightfully available to the recipient/assessee.

Decision

  • Correction of Error: Since the foundation of the demand (non-payment by supplier) was proven false by the Department’s own admission, the impugned order could not stand.

  • Order Set Aside: The High Court set aside the adjudication order.

  • Remand: The matter was remanded to the Assistant Commissioner with a direction to re-open and re-adjudicate the issue, taking into account the confirmation that the supplier had paid the taxes.

Key Takeaways

  • Supplier Compliance is Key: Under Section 16(2)(c), ITC is contingent on the supplier paying the tax. However, if the supplier pays late (with interest), the recipient’s right to ITC is restored/protected.

  • Section 74 Misuse: Invoking Section 74 (Fraud) for what often amounts to a supplier’s delay or a data mismatch is frequently challenged by Courts. If the tax is eventually paid, the element of “fraud” by the recipient often disappears.

  • Verification: Before accepting a demand for “supplier non-compliance,” always verify if the supplier has filed returns belatedly (GSTR-3B).

HIGH COURT OF HIMACHAL PRADESH
Shivalik Containers (P.) Ltd.
v.
Assistant Commissioner*
Vivek Singh Thakur and Jiya Lal Bhardwaj, JJ.
CWP No. 20174 of 2025
DECEMBER  24, 2025
Vishal Mohan, Sr. Adv. and Parveen Sharma, Adv. for the Petitioner. Sushant Keprate, Additional Adv. General for the Respondent.
ORDER
Vivek Singh Thakur, J. – Petitioner has approached this Court seeking following substantial relief:-
“a. That this Hon’ble Court may be pleased to issue a writ in the nature of certiorari and quash the show cause notice and order dated 04.01.2023 issued under Section 74 of the CGST Act, 2017 holding the same to be illegal and not sustainable in the eyes of law.”
2. Impugned order dated 4.1.2023 (Annexure P-4) has been issued under Section 74 of the CGST Act raising demand for Rs. 16,72,140/- for non-payment of tax by the supplier for which ITC has been claimed by present petitioner.
3. In response to the petition, learned Additional Advocate General has placed on record instructions received from Deputy Director (Legal) Commissioner of State Taxes and Excise alongwith communication of Assistant Commissioner of State Taxes and Excise (GST) to the Joint Commissioner of State Taxes and Excise (Legal) Headquarter Shimla, H.P., informing as under:-
“It is further intimated that to verify the claim of the appellant regarding filing of returns by their supplier M/s Shivalik Marketing, the GST BO Web portal has been referred and it is found that the due returns for the period Feb, 2020 to March, 2020 has been filed by the supplied along with interest and the ITC is now available to the recipient for the claim of the same.”
4. Learned counsel for the petitioner submits that in view of above instructions petition deserves to be allowed and impugned order dated 4.1.2023 (Annexure P-4) deserves to be set aside. Whereas, learned Additional Advocate General submits that there is delay of more than 5 years in deposit of tax by the supplier and, therefore, notice has rightly been issued to the petitioner, which has been issued prior to deposit of tax by the supplier and further that in any case unless it is directed by the Court, concerned authority is not having jurisdiction or power to re-adjudicate the claim of the ITC which, for deposit of tax alongwith interest by the supplier is available to the recipient, i.e. petitioner.
5. In view of above, we are of the opinion that appropriate directions are required to be issued to adjudicating authority, i.e. respondent No. 1-Assistant Commissioner, State Taxes and Excise, Nahan, District Sirmour, H.P., especially in view of instructions placed on record, wherein it has been stated that after deposit of tax by the supplier alongwith interest ITC is available to the recipient for the claim of the same.
6. Accordingly, impugned order dated 4.1.2023 (Annexure P-4) is set aside and respondent No. 1-Assistant Commissioner, State Taxes and Excise, Nahan, District Sirmour, H.P. is directed to re-open the issue and re-adjudicate the matter in reference in accordance with law and determine the liability, if any, of the petitioner or accept its claim as admissible under law. Needful be done on or before 31st January, 2026.
The petition stands disposed of alongwith pending application(s), if any, in aforesaid terms.
Category: GST

About CA Satbir Singh

Chartered Accountant having 12+ years of Experience in Taxation , Finance and GST related matters and can be reached at Email : Taxheal@gmail.com