ORDER : 1. In this writ petition, filed under Article 226 of the Constitution of India, the petitioner has prayed for declaring the Explanation 1 to Section 19 of the Jharkhand Value Added Tax Act, 2005 as inserted vide Jharkhand Act No. 22 of 2011, i.e. Jharkhand Value Added Tax (Amendment) Act 2011 as ultra vires. Petitioner has also prayed that the amendment carried to Section 19 of the Jharkhand Value Added Tax Act, 2005, as inserted vide Jharkhand Value Added Tax (Amendment) Act 2016, as contained in Notification No. L.G. 06/2017-44/Leg. dated 31st March, 2017 be also declared ultra vires. By virtue of the said amendment, the accrued Input Tax Credit of the petitioner stood forfeited. An alternative prayer has been made to the aforesaid two prayers. As per the alternative prayer, petitioner prayed for declaring that the amount of Rs.21,65,133/-which is admittedly the Input Tax Credit accrued in favour of the petitioner for the assessment year 2010-2011 be not treated to be forfeited and be carried forward to the next assessment year 2011-12. Petitioner has prayed that even if the amendment is not declared to be ultra vires, the credit which has already accrued, cannot be taken away or forfeited. Further prayer has been made to quash the assessment order dated 06.05.2017 passed by the respondents on remand, wherein the excess amount of Input Tax Credit brought forward in favour of the petitioner amounting to Rs.21,65,133/-from the financial year 2010-11 to the financial year 2011-12, has been forfeited. 2. Learned counsel appearing on behalf of the petitioner submits that admittedly, the petitioner purchased raw materials for manufacturing finished products and was having excess Input Tax Credit (hereinafter referred to as ITC) to the tune of Rs.21,65,133/-. Section 19 of the Jharkhand Value Added Tax provides for carrying forward the excess ITC to the next financial year. As the electricity connection of the petitioner was disconnected due to some dispute and allegation of theft of energy, the production of the unit of the petitioner was ‘NIL’ from 26.08.2010 to 03.12.2022. The petitioner filed ‘NIL’ returns for the period 2011-12, but the excess ITC was carried forward from the assessment year 2010-11 to 2011-12 and was further carried over to the next financial year, i.e. 2012-13. The petitioner filed ‘NIL’ returns for the period 2011-12, but the excess ITC was carried forward from the assessment year 2010-11 to 2011-12 and was further carried over to the next financial year, i.e. 2012-13. As per him, Section 19 of the Jharkhand Value Added Tax Act 2005 was amended and an explanation was inserted, which provided that no ITC shall be admissible to registered dealer, where his turn over is ‘NIL’ for 3 (three) consecutive months. In view of the said amendment, the petitioner was denied the benefit of carrying forward of excess ITC. As per him, the aforesaid amendment is bad and is against the provisions of the parent Act thus, is ultra vires. Further, by another amendment, the period of 3 (three) months was substituted by 12 months and the amendment was made effective from 7th May, 2011. As per him, the provision of retrospectivity is bad, which in fact took away the benefit already granted. In the alternative, he argues that since the amendment was brought after the benefit had accrued to the petitioner, the said amendment cannot take away the benefit, which has already crystalised. The petitioner had earlier challenged the initial amendment, which had given retrospective effect with effect from 01.04.2010, in W.P.(T) No. 2911 of 2015 Since the subsequent amendment extending the period of 3 (three) months to 12 (twelve) months and withdrawing the retrospective effect was passed during pendency of the said writ petition, the writ petition was disposed of with a direction to the respondents, i.e. Assessing Authority to pass an appropriate order after setting aside the assessment order dated 29.12.2014. On remand, similar order was passed, which is also illegal. As per him, when the retrospectivity has been done away with, the respondents could not have passed the impugned order forfeiting the ITC for the year 2010-11, which accrued on 31st March, 2011. 3. Learned counsel for the respondents argued that the amendment to Section 19 of the Jharkhand Value Added Tax Act, 2005 by insertion of Explanation 1 cannot be said to be ultra vires. As per him, the ITC under the Jharkhand Value Added Tax Act is a concession and to impose any restrictions on such concession is fully within the domain of the State Legislature. As per him, the ITC under the Jharkhand Value Added Tax Act is a concession and to impose any restrictions on such concession is fully within the domain of the State Legislature. By way of an explanation, a restriction to such utilization of concession was introduced, as per which if turn over for a period of 3 (three) months was ‘NIL’ ITC would not be admissible. Subsequently, by the amendment of 2016, with effect from 07.05.2011, the period of 3 (three) months was extended to period of 12 (twelve) months. This amendment was brought to protect the interest of the State Government as the benefit of ITC cannot be allowed to be continued in perpetuity, especially during the period for which the dealer did not engage in any economic activity. Since the revenue was not generated during the aforesaid period, the credit which accrued to the dealer on earlier financial year, will naturally stand forfeited. There is no illegality or malafide in the amendment, which has been brought in, thus, the petitioner is not entitled for any benefit. The State counsel further argues that during the aforesaid period, it is the admission of the petitioner, that there was no business or commercial activity. When there was no commercial activity, the petitioner is not entitled to carry forward the ITC for subsequent financial years. In support of his contention, the State has relied on the following judgments: (i) Godrej and Boyce Mfg. Co. Pvt. Ltd. and Others vs. Commissioner of Sales Tax and Others, (1992) 3 SCC 624 (ii) State of Karnataka vs. M.K. Agro Tech (P) Ltd. (2017) 16 SCC 210 (iii) Jayam and Company vs. Assistant Commissioner and Another, (2016) 15 SCC 125 (iv) ALD Automotive Pvt. Ltd. vs. CTO, (2019) 13 SCC 225 (v) M/s Reliance Jute and Industries Ltd. vs. CIT, West Bengal, (1980) 1 SCC 139 (vi) Hungerford Investment Trust vs. Haridas Mundhra, (1972) 3 SCC 684 (vii) Thyssen Stahlynion Gmbh vs. SAIL, (1999) 9 SCC 334 (viii) Manager, VKNM Vocational Higher Secondary School vs. State of Kerala and Others, (2016) 4 SCC 216 4. After hearing the parties, we find that the petitioner is a manufacture of MS Ingots and Pencil Ingots. For the assessment year 201011 (01.04.2010 to 31.03.2011), admittedly, the petitioner was having an excess ITC to the tune of Rs.21,65,133/-. After hearing the parties, we find that the petitioner is a manufacture of MS Ingots and Pencil Ingots. For the assessment year 201011 (01.04.2010 to 31.03.2011), admittedly, the petitioner was having an excess ITC to the tune of Rs.21,65,133/-. The said ITC was to be carried forward to the next financial year, i.e. 2011-12 (01.04.2011 to 31.03.2012). This carrying forward of ITC is by virtue of Jharkhand Value Added Tax Act, which provides such carrying forward of excess ITC to the next financial year. It is necessary to quote Section 19 as it originally was, which reads as follows: 19. Input tax credit exceeding tax liability: (1) If the input tax credit of a registered dealer other than an exporter selling goods outside the territory of India determined under Section 18 of this Act for a period, exceeds the tax liability for that period, the excess credit shall be set off against any outstanding tax payable, penalty or interest payable under this Act as well as CST Act, 1956. (2) The excess input tax credit after adjustment under sub-section (1) may be carried over as an input tax credit to the subsequent period or periods. (3) In case where input tax credit is carried forward, a quarterly credit statement may be submitted by the dealer concerned and the claims shall be scrutinized by the prescribed authority. 5. Due to disconnection of electricity for the period from 26.08.2010 till 03.12.2012, there was no production in the petitioner’s unit and his return was ‘NIL’. The annual return of the petitioner for the year 2011-12 was shown ‘NIL’ but the ITC, which had accrued to the petitioner on the previous financial year was carried forward. Similarly, the said ITC was forwarded to the next assessment year 2012-13. 6. By virtue of an amendment of Jharkhand Valued Added Tax (Amendment) Act, 2011 as contained in Gazette Notification No. 676 dated 1st October, 2011, Section 19 of the Jharkhand Value Added Tax Act was amended and an explanation was inserted in Section 19. Explanation 1 to Section 19 as inserted by the Amending Act, reads as follows: “Explanation 1 - Notwithstanding anything contained in this Act, no input tax credit shall be admissible by a registered dealer, where there is nil turnover by such registered dealer for a consecutive three months.” 7. Explanation 1 to Section 19 as inserted by the Amending Act, reads as follows: “Explanation 1 - Notwithstanding anything contained in this Act, no input tax credit shall be admissible by a registered dealer, where there is nil turnover by such registered dealer for a consecutive three months.” 7. As a result of the said insertion, no ITC is admissible to a registered dealer when there is NIL return filed by the said dealer for a period of consecutive 3 (three) months. 8. As per Explanation III of Jharkhand Value Added Tax (Amendment) Act, 2011, this period shall mean “one calendar month” or “quarter” or “year.” Thus, due to the aforesaid amendment, if in respect of a dealer, the return for 3 (three) consecutive months in a calendar year is ‘NIL’ he will not get the benefit of ITC. 9. Taking resort to the aforesaid amendment, the ITC, which accrued to the petitioner, was disallowed. The petitioner challenged the aforesaid amendment, in W.P. (T) No. 2911 of 2015, as the same was given retrospective effect from 01.04.2010. 10. Vide Gazette Notification dated 8th November, 2016, by virtue of Jharkhand Value Added Tax Act (Amendment) Ordinance 2016, explanation 1 to Section 19 of the Jharkhand Value Added Tax Act was further amended. The Ordinance reads as follows: “In Explanation 1 the word “three” appearing in between the words “consecutive” and “months” shall be substituted by the word “twelve.” This shall be effective from 7 May, 2011. 11. From perusal of the said subsequent amendment to the Explanation 1, and if it is read with earlier Explanation 1, it is clear that now in place of 3 (three) months, the period will be 12 months and the same now has been made effective from 7th May, 2011. This suggests that the said provision would be effective from 7th May, 2011 and the period of ‘NIL’ return should be for 12 (twelve) months, which would attract forfeiture of ITC. The writ petition, being W.P.(T) No. 2911 of 2015, was disposed of directing the authorities to reconsider the case of the petitioner. Thereafter the case of the petitioner was reconsidered but relying upon the said amendment, which is with effect from th May, 2011, the claim of the petitioner was dismissed. 12. The writ petition, being W.P.(T) No. 2911 of 2015, was disposed of directing the authorities to reconsider the case of the petitioner. Thereafter the case of the petitioner was reconsidered but relying upon the said amendment, which is with effect from th May, 2011, the claim of the petitioner was dismissed. 12. In the instant case, the ITC, which accrued to the petitioner is for the financial year 2010-11, that means from 1st April 2010 to 31st March 2011. By virtue of Section 19 (1), ITC can be carried forward to the next financial year subject to the restrictions in Explanation (1), which is effective from 7th May, 2011. The restriction is that there should not be ‘NIL’ return for 12 months in a calendar year. Admittedly, the petitioner’s production was ‘NIL’ from 26.08.2010 to 03.12.2012, but this provision of 12 months came into effect from 7th May, 2011. The benefit of ITC got accrued to the petitioner and the right to carry forward the same accrued to the petitioner immediately on expiry of financial year 2010-2011, i.e. on and from 1st April, 2011. On closure of financial year 2010-11, i.e. 31st March, 2011, the excess ITC got automatically carried forward by virtue of Section 19 of the Jharkhand Value Added Tax Act on 1st April, 2011, as there was no explanation to the said provision then. Thus, in the books of accounts, on 1st April, 2011 this excess ITC stood recorded as carried forward ITC. On the said date, i.e. 01.04.2011, i.e. the first day of financial year 2011-12, the Explanation (1) to Section 19 had not seen the light of the day. It came into effect on and from 7th May, 2011 only. Thus, the question is when the right had already stood crystalised and posted on 01.04.2011, can the same be taken away by way of amendment, which came to effect from 7th May, 2011? The issue has been set at rest by the Hon’ble Supreme Court of India in the case of Jayam and Company vs. Assistant Commissioner and Another, (2016) 15 SCC 125 . At paragraph 19 of the said judgment, the Hon’ble Supreme Court has held that such a provision which is made for the first time and is to the detriment to the dealer, cannot have retrospective effect. At paragraph 19 of the said judgment, the Hon’ble Supreme Court has held that such a provision which is made for the first time and is to the detriment to the dealer, cannot have retrospective effect. Moreso, when the vested right had accrued in favour of the dealer in respect of purchases and sales. In the aforesaid case, the Hon’ble Supreme Court quashed retrospectivity of the Amendment of Section 19(2) of the Tamil Nadu Value Added Tax Act, 2006 by Amendment Act of 2010, which was given retrospective effect from 01.01.2007, by which some accrued benefits were taken away. 13. Further, in the case of DG of Foreign Trade vs. Kanak Exports, (2016) 2 SCC 226 , at paragraph 135, the Hon’ble Supreme Court has held that no doubt, the Government has, otherwise, power to amend, modify or withdraw a particular scheme which gives benefits to a particular category of persons under the said scheme. At the same time, if some vested right has accrued in favour of the beneficiaries, who achieved the target stipulated in the scheme and thereby became eligible for grant of duty credit entitlement, that cannot be snatched from such persons/exporters by making the amendment retrospectively. 14. In the case of State of U.P. vs. Vam Organic Chemicals Ltd. (2010) 6 SCC 222 , the Hon’ble Supreme Court has held that when a recognition certificate is issued, a benefit of concessional rate of tax is given to the dealer. He arranges his business affairs on those lines. Therefore, that benefit cannot be withdrawn retrospectively. 15. In the case of Govind Das vs. ITO, (1976) 1 SCC 906 , the Hon’ble Supreme Court at paragraph 11 thereof has held that retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. 16. As held earlier, the right to the petitioner to carry forward the ITC by virtue of Section 19 of the Jharkhand Value Added Tax Act has already taken effect from 01.04.2011 and the amendment is effective from 7th May, 2011. 16. As held earlier, the right to the petitioner to carry forward the ITC by virtue of Section 19 of the Jharkhand Value Added Tax Act has already taken effect from 01.04.2011 and the amendment is effective from 7th May, 2011. Thus, in view of the principles laid down in the aforesaid judgments by the Hon’ble Supreme Court, we hold that the amendments of Explanation (1) to Section 19 cannot be resorted to by the State in the instant case and the ITC, which accrued in favour of the petitioner and has been carried forward for the financial year 2010-11 cannot be taken away or withdrawn by virtue of insertion of Explanation (1) to Section 19 of the Jharkhand Value Added Tax Act, 2005. The impugned Assessment Order dated 06.05.2017 (Annexure 13) passed by respondent No. 4, on remand, by which excess amount of ITC brought forward by the petitioner from the financial year 2010-11 to the financial year 2011-12 has been forfeited and, consequentially, the aforesaid amount has not been allowed to be carried forward to the next financial year 2012-13, is bad. 17. Considering what has been held above, since the petitioner succeeds on this point, we are not entering into the realm of the challenge thrown to the vires of the Jharkhand Value Added Tax (Amendment) Act, 2011 and Jharkhand Value Added Tax (Amendment) Ordinance 2016. This writ petition stands allowed by setting aside the impugned Assessment Order dated 06.05.2017 (Annexure 13) passed by respondent No. 4, keeping open the challenge to the vires of the Jharkhand Value Added Tax (Amendment) Act, 2011 and Jharkhand Value Added Tax (Amendment) Ordinance 2016. 18. There shall be no orders as to costs. Urgent certified copies of this order shall be issued as per the Rules.