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2020 (10) TMI 1056 - HC - GSTReopening of portal for filing of Form GST TRAN-1 - transitional credit. - applicability of time limitation provided under the retrospective amendment to Section 140(1) of the CGST Act and MGST Act read with Rule 117 of the CGST Rules and MGST Rules - directory in nature or mandatory? HELD THAT - On a conjoint reading of the provisions of Section 140(1) read with Rule 117(1), prima facie, it appears that a person is allowed to carry forward Cenvat credit from the erstwhile regime to the GST regime by fling of Form GST TRAN-1 - In the present case the petitioner has attempted to file Form GST TRAN-1, although belatedly, but alongwith the applicable late fees in compliance of the erstwhile service tax laws as also the provisions of the CGST Act and MGST Act. The petitioner s application dated 04.12.2019 is pending adjudication with the appropriate authority i.e. respondent No.6 - We may state that the present petition can be disposed of by issuing a direction to the respondent No.6/appropriate authority to consider the application dated 04.12.2019 fled by the petitioner for seeking to carry forward the accumulated Cenvat credit into the GST regime and acceptance of the petitioner s Form GST TRAN-1 in accordance with law. In doing so respondent No.6 / appropriate authority shall give a hearing to the petitioner and thereafter pass a speaking order on the aforesaid application. The respondent No.6 / appropriate authority i.e. Joint Commissioner of State Tax (EIU), Economic Intelligence Unit, C Wing, Old Building, GST Bhavan, Mazgaon, Mumbai- 400 010 is directed to decide the application dated 04.12.2019 fled by the petitioner for seeking to carry forward transition of accumulated Cenvat credit into GST regime in accordance with law - respondent No.6 / appropriate authority shall accord an opportunity of hearing to the petitioner before deciding and passing order on the petitioner s application dated 04.12.2019. Petition disposed off.
Issues:
1. Interpretation of time limit under retrospective amendment to Section 140(1) of the CGST Act and MGST Act for transition of credits. 2. Reopening of GST common portal for filing Form GST TRAN-1 to avail eligible credit. 3. Direction to credit transitional credit to electronic credit ledger. 4. Legal position on time limit for transition of Cenvat credit into the GST regime. 5. Refusal to accept manual Form GST TRAN-1 by jurisdictional officer. 6. Pending application for carry forward of Cenvat credit into GST regime. 7. Disposal of the writ petition and issuance of relevant directions. Analysis: 1. The petition sought clarification on the nature of the time limit provided under the retrospective amendment to Section 140(1) of the CGST Act and MGST Act, arguing it to be directory, not mandatory. The court highlighted the provisions of Section 140(1) and Rule 117(1), indicating that a person can carry forward Cenvat credit by filing Form GST TRAN-1 within the prescribed time. The petitioner's belated attempt to file the form was noted, and the application was pending adjudication with the appropriate authority. 2. The petitioner requested the reopening of the GST common portal to file Form GST TRAN-1 for availing eligible credit. The court directed the appropriate authority to consider the application for transitioning accumulated Cenvat credit into the GST regime. It emphasized the need for a hearing for the petitioner and a speaking order on the application. 3. The court issued directions to the respondent No.6/appropriate authority to decide the application for carrying forward Cenvat credit into the GST regime and accepting Form GST TRAN-1 in accordance with the law. The authority was instructed to provide a hearing to the petitioner and pass a speaking order on the application within 8 weeks. 4. The legal position on the time limit for transitioning Cenvat credit into the GST regime was discussed, citing judgments from various High Courts. The court emphasized the need for a fair consideration of the petitioner's application and compliance with the law in deciding the matter. 5. The refusal to accept the manual Form GST TRAN-1 by the jurisdictional officer was highlighted, leading to the petitioner's approach to the Nodal Officer. The court directed the appropriate authority to consider the application and pass a speaking order expeditiously, ensuring a fair hearing for the petitioner. 6. The pending application dated 04.12.2019 for carrying forward Cenvat credit into the GST regime was a key issue in the judgment. The court disposed of the writ petition by issuing directions to the appropriate authority for timely consideration and resolution of the petitioner's application. 7. The writ petition was ultimately disposed of with specific orders for the respondent No.6/appropriate authority to decide on the application, provide a hearing to the petitioner, and pass a speaking order within a stipulated timeframe. The parties were directed to bear their own costs, and the judgment was digitally signed for immediate action.
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