GIST OF RECENT PRONOUNCEMENTS ON GST (PART-XXI)

[Dr. Sanjiv Agarwal]

Goods and Services Tax (GST), introduced from July 1, 2017 is about twenty months old now but has resulted in operational and implementation disruptions affecting all stakeholders.  GST law, as drafted and legislated, is not free from the interpretational hassles. GST Council is however, making regular changes to fix the anomalies and hardships faced by taxpayers.  34 meetings of GST Council have been held till 31^st  March, 2019.

Taxpayers have already challenged various provisions of GST laws and rules framed thereunder with over 300 writs being filed in different courts. High courts and Supreme court have taken a liberal stand so far in view of the fact that law is new and is yet evolving. However, CBIC may move to Supreme court where the verdict is against the Government. In recent past, CBIC had issued directions to be officers to defend the writs. Further, we have over 350 rulings from Authority for Advance Ruling (AAR) and over 60 Orders from National Anti-profiteering Authority (NAA) out of which two Anti-profiteering cases have gone to Delhi High Court. Even the orders from Appellate Authority for Advance Ruling have also started pouring in and we have over three dozen Appellate Orders from AAAR.

Here are few more judicial pronouncements for information and guidance of various stakeholders. It is expected that the litigation by way of writs is bound to go up as time passes by unless the Government comes out with proactive approach and solutions.

• In Cloud 9 Projects (P.) Ltd. v. Union of India 2018 (8) TMI 209 - ALLAHABAD HIGH COURT , where assessee's application in Form GST TRAN-1 was not entertained on last date, i.e., 27-12-2017 because electronic system of Department did not respond, Competent Authority was directed to reopen portal within two weeks or entertain application of assessee manually and pass orders on it after due verification of the credits as claimed by the assessee. They were also directed to ensure that the assessee is allowed to pay its taxes on the regular electronic system also which is being maintained for use of the credit likely to be considered for the assessee.

• In E.V. Radha Krishna Kurup v. Union of India 2018 (7) TMI 1829 - KERALA HIGH COURT ;  where the assessee was unable to upload FORM GST TRAN-1 to take credit of input tax available at time of migration, within time stipulated, it was held that assessee can prefer application within two weeks from date of receipt of copy of judgment before Nodal Officer appointed to resolve such issues and also, appropriate action should be taken to enable assessee to take credit of input tax, if FORM GST TRAN-1 could not be uploaded for reasons not attributable to assessee.

• In Cee Pee Marble & Granite v. GST Council  2018 (7) TMI 1746 - KERLA HIGH COURT ;  the assessee had failed to upload Form GST TRAN-1 because of some system error and as such, it filed a writ petition seeking directions to enable it to take credit of the available input tax.

It was observed that there is a Circular No. 39/13/2018-GST, dated 3-4-2018 issued by the Government of India for 'setting up an IT Grievance Redressal Mechanism to address the grievances of tax payers due to technical glitches on GST Portal.' Paragraph 5 of the Circular outlines the procedure the Nodal Officer is to follow. Not only the present assessee but also many other people faced this technical glitch and approached this Court. Both the counsels submit that this Court on earlier occasions permitted the petitioners to apply to the Nodal Officer for the issue resolution. It was observed and directed that in view of the said Circular, the assessee may apply to the Nodal Officer. The assessee applying, the Nodal Officer will look into the issue and facilitate the assessee's uploading Form GST TRAN-1 without reference to the time frame.If the uploading of Form GST TRAN-1 is not possible for reasons not attributable to the assessee, the authority will also enable it to take credit of the input tax available at the time of migration.

• In Calibre Industries  v. Principal Commissioner, GST & Central Excise   2018 (8) TMI 137 - MADRAS HIGH COURT   the assessee was unable to upload Form GST TRAN-1 within the time stipulated on account of some error and therefore, it filed a writ petition seeking appropriate directions in this regard. The court directed to submit application in accordance with paragraph 8 of Circular No. 39/13/2018-GST, dated 3-4-2018 before concerned Assessing Authority, who would forward same to Nodal Officer for necessary action.

The respective Commissioner of GST and Central Excise were directed to appoint Nodal Officer/Officers for the State of Tamil Nadu, if not already appointed, within a period of 2 weeks, and the assessee was directed to submit its application in accordance with paragraph 8 of the Circular dated 3-4-2018 within a period of two weeks to his respective Assessing Officer/Jurisdictional Officer/GST Officer. The Assessing Officer was directed to forward the application to the Nodal Officer within a period of one week. The Nodal Officer nominated will, in consultation with the GSTN, shall take note of the grievances expressed by the assessee and forward the same to the Grievance Committee, who, in turn, would take an appropriate decision in the matter within a period of three weeks.

• In Smartuff Glass Ltd. v. Union of India 2019 (4) TMI 845 - KERALA HIGH COURT ;  in the instant case, the assessee had failed to upload Form GST TRAN-1 because of some system error and therefore, it filed a writ petition seeking directions to enable it to take credit of the available input tax.

The court observed that the Government of India had issued Circular No. 39/13/2008-GST, dated 3-4-2018 for 'setting up an IT Grievance Redressal Mechanism to address the grievances of tax payers due to technical glitches on GST Portal.' Paragraph 5 of the Circular outlines the procedure the Nodal Officer has to follow.

The court accepted the petition and assessee was directed to apply to Nodal Officer in this regard, who would look into issue and facilitate assessee's uploading Form GST TRAN-1. If the uploading of Form GST TRAN-1 is not possible for reasons not attributable to the assessee, the Nodal Officer will also enable it to take credit of the input tax available at the time of its migration.

• In Mountain Valley Springs India Pvt. Ltd. v. Assistant / Deputy Commissioner of GST  2018 (9) TMI 372 - DELHI HIGH COURT , where assessee was unable to upload data to avail Cenvat credit and VAT credit or credit on stock in trade, court directed assessee to make representation to the concerned Nodal Officer and Nodal Office to consider it in terms of the Grievance Redressal Mechanism and pass a speaking order following similar relief in Sare Reality Projects Pvt. Ltd. v. Union of India in W.P. No. 1300 of 2018 decided by Delhi High Court on 01.08.2018 [ 2018 (9) TMI 373 - DELHI HIGH COURT ].

 

(Some more cases to follow)