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TMI Blog2020 (2) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... RI V.S.KALASURMATH, HCGP) In this writ petition, the petitioner has sought for the following reliefs: a) Issue writ of mandamus directing the respondent to allow the petitioner to pay taxes on the regular electronic system also which is being maintained for use of the credit likely to be considered for the petitioner. b) Issue writ of mandamus and it is prayed that this Hon ble Court may be pleased to direct the respondents to provide revise facility in uploading GST TRAN-1 and other returns filed by the petitioner either online or manually and allow the credit claimed and order such other and further reliefs as deems fit, in the interest of justice and equity. 2. Learned counsel for the petitioner has relied on the order passed by this Court in W.P.No.33290/2019 and other connected matters which were disposed of on 19.11.2019 and sought for granting the same relief which is granted by this Court in the aforesaid petitions, wherein this Court at paragraph Nos.6, 8, 9 and 10 has passed the following order: 6. Similarly Hon ble High Court of Punjab and Haryana in the case of Adlfert Technologies Pvt. Ltd., supra as held thus: 9. Having scrutinize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase of goods or services within return to be filed under Section 39 for the month of September following the end of financial year to such purchase or furnishing of the relevant annual return, whichever is earlier. Whereas, Rule 117 allows time limit only up to 27th December 2017 to claim transitional credit on pre-GST purchases. Therefore, it is arbitrary and unreasonable to discriminate in terms of the time-limit to allow the availment of the input tax credit with respect to the purchase of goods and services made in pre-GST regime and post-GST regime. This discrimination does not have any rationale and, therefore, it is violative of Article 14 of the Constitution. 35. The Supreme Court, in the case of Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors., reported in AIR 1981 SC 487 , has held that Article 14 strikes at the arbitrariness because any action that is arbitrary, must necessarily involve negation of equality. It is sufficient to state that the content and reach of Article 14 must not be confused with the doctrine of classification. The doctrine of classification which is evolved by the courts is not para-phrase of Article 14 nor is it the objective and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confined within traditional and doctrinaire limits. From a positivistic point of view equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. 17. This vital and dynamic aspect which was till then lying latent and submerged in the few simple but pregnant words of Article 14 was explored and brought to light in Royappa's case and it was reaffirmed and elaborated by this Court in Maneka Gandhi v. Union of India, (1978) 2 SCR 621 : (AIR 1978 SC 597), where this Court again speaking through one of us (Bhagwati, J.) ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carry forward and utilise the CENVAT credit after satisfying all the conditions as mentioned in the Central Excise Law and, therefore, disallowing such vested right is offensive against Article 14 of the Constitution as it goes against the essence of doctrine of legitimate expectation. 37. The Supreme Court, in the case of MRF Ltd. v. Assistant Commissioner (Assessment) Sales Tax, reported in 2006 (206) E.L.T. 6 (S.C.) = 2006-TIOL-124-SC-CT, has held that a person may have a 'legitimate expectation' of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. The doctrine of legitimate expectation has an important place in developing law of judicial review. We may quote the relevant paragraph 38 of the judgment thus: 38. The principle underlying legitimate expectation which is based on Article 14 and the rule of fairness has been restated by this Court in Bannari Amman Sugars Ltd. v. Commercial Tax Officer, 2005 (1) SCC 62 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness. 38. By not allowing the right to carry forward the CENVAT credit for not being able to file the form GST Tran-1 within the due date may severely dent the writ-applicants working capital and may diminish their ability to continue with the business. Such action violates the mandate of Article 19(1)(g) of the Constitution of India. 39. This High Court, in the case of Indsur Global Ltd. v. Union of India, reported in 2014 (310) E.L.T. 833 (Gujarat) = 2014 TIOL-2115-HC-AHM-CX, has held as under: 34. By no stretch of imagination, the restrictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in form GST TRAN-1 and GST TRAN-2 so as to enable them to claim transitional credit of the eligible duties in respect of the inputs held in stock on the appointed day in terms of Section 140(3) of the Act. It is further declared that the due date contemplated under Rule 117 of the CGST Rules for the purposes of claiming transitional credit is procedural in nature and thus should not be construed as a mandatory provision. xxxx Accordingly, we direct respondents to permit the petitioners to file or revise where already filed incorrect TRAN-1 either electronically or manually statutory Form(s) TRAN-1 on or before 30th November 2019. The respondents are at liberty to verify the genuineness of claim of petitioners but nobody shall be denied to carry forward legitimate claim of CENVAT/ITC on the ground of non-filing of TRAN-1 by 27.12.2017. 7. xxxxx 8. In the light of Section 140 of the Act read with section 142 and 172 as well as Rule 117 (1A), it is clear that through there is no explicit provision to permit revision filing of Tran-1 at an extended period for the registered persons who fail to furnish the material for having filed the same by 27.12.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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