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TMI Blog2021 (9) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... neral of India, assisted by Mr Sudarshan Singh, Mr Krishna Ji Shukla, Mr Anant Kumar Tiwari, Mr Rajesh Tripathi, Mr Ishan Shishu and Mr Manoj Kumar Singh for the Union of India and; Mr Ramesh Chandra Shukla, Mr Ashok Singh, Mr Parv Agarwal, Mr Dhananjai Awasthi, Mr Krishna Agarwal, Mr Gaurav Mahajan, Mr Amit Mahajan, Mr Ankur Agarwal and Mr B.K. Singh Raghuvanshi, for the CGST authorities. 2. This batch of writ petitions has been filed seeking relief in the nature of mandamus commanding the respondent authorities to allow the petitioners to submit/revise/re-revise electronically, their respective declarations on Form GST TRAN-1 and GST TRAN-2, under the provisions of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the 'CGST Act') and, the Uttar Pradesh Goods and Services Tax Act, 2017 (hereinafter referred to as the 'UPGST Act'), to carry forward the CENVAT and VAT Input Tax Credit, under the CGST Act , 2017 and the U.P. GST Act, 2017. No other relief has been pressed at the hearing. 3. On facts, broadly there are three types of cases. First, some of the petitioners claim, they had submitted electronically, the Form GST TRAN-1 and/or TRAN-2 (on the GST Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,46,415 6.7.2017 27.12.2017 - - 6 702 /2018 27,76,000 - - To be verified 27.12.2017 - - 7 720 /2018 - - 4,43,479 28.9.2017 27.12.2017 - - 8 721 /2018 - - 4,18,067 28.9.2017 27.12.2017 - - 9 727 /2018 1,68,41,568 - - To be verified - 27.12.2017 28.12.2017 10 736 /2018 75,18,296 - - To be verified December 2017 - - 11 774 /2018 23,75,831.65 - 2,35,81,098 To be verified 26.10.2017 26.10.2017 27.12.2017 12 792 /2018 11,44,322 Claiming only CENVAT 11,44,322 Claiming only CENVAT 26.12.2017 27.12.2017 - 13 800 /2018 1,49,922 - 1,46,415 6.7.2017 27.12.2017 - - 14 802 /2018 - - 4,81,445 To be verified 27.12.2017 - - 15 807 /2018 22,06,927 - - To be verified 27.12.2017 - - 16 823 /2018 - - 20,15,902 To be verified 27.12.2017 - - 17 829 /2018 - - 30,40,657 To be verified 27.12.2017 Screenshot of attempt to upload TRAN 1 available and invoices have been processed - 18 838 /2018 - 27,06,843.03 - To be verified 27.12.2017 27.12.2017 - 19 847 /2018 - 55,60,967 - To be verified 27.12.2017 27.12.2017 27.12.2017 20 856 /2018 - - 8,51,817 To be verified 27.12.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 55 411/2019 8,25,373/- - 2,66,224 VAT 21-7-2017 ER-1 10-7-2017 27-12-2017 9-1-2020 - 56 541/2019 5,10,153 4,33,761 - VAT 16-7-2017 ER-1 19-7-2017 27.12.2017 - - 57 550/2019 - 22,40,891 - To be verified 27.12.2017 - - 58 887/2019 - - 10,73,350 To be verified 27.12.2017 - - 59 903/2019 - - 11,25,192 To be verified 27.12.2017 - - 60 977/2019 12,65,078 - 65,33,573 August 2017 25.12.2017 25.12.2017 - 61 1000/2019 89,18,31,760 15,44,848 - 10.7.17 31.7.17 August 2017 August 2017 27.12.2017 62 1136/2019 3,43,19,951 40,52,969 - To be verified - 26.12.2017 - 63 1147/2019 - - 67,98,005 To be verified 9.1.2018 18.1.2018/23.1 .2018 - 64 1178/2019 - - 12,54,328 20-7-2017 27-12-2017 - - 65 1244/2019 17,32,879 - - ST-3 25.09.2017 - 21-12-2017 27.12.2017 66 1245/2019 4,43,131 - - ER-1 19.07.2017 27.12.2017 - - 67 1246/2019 16,06,984 - - 23.09.2017 - 21-12-2017 27.12.2017 68 1247/2019 16,47,968 - - 23.09.2017 - 21-12-2017 27.12.2017 69 1255/2019 - - 14,28,504 August 17 13.11.17 Screenshot of attempt to upload TRAN 1 available and invoices have been processed - 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.12.2017 disclosing Rs. 2,82,035/- ITC availed [in Table no.5(c) of Form TRAN- 1]. The balance ITC of eligible duties on inputs held on stocks as on 30.06.2017 was Rs. 8,52,511/-. It was inadvertently filled up in Table no. 7(d) in place of Table no. 7(a) of the Form GST TRAN-1. The petitioner tried to revise the Form GST TRAN-1 but could not succeed due to technical glitches on the GST Portal. Petitioner also claims to have lodged a complaint with the GST Helpdesk on 30.12.2019 as also a grievance on the common portal, on 11.02.2020. On 04.03.2020, the petitioner further claims to have informed the Nodal Officer and the Assistant Commissioner about the inadvertence and requested permission to correct the same. Evidence in support of such claim is on record. However, no relief came to be granted to the petitioner. 7. In Writ Tax No. 872 of 2018, the petitioner claims, it held tax paid stocks for the period ending 30.06.2017 disclosing ITC available, Rs. 16,00,639.74/-. It tried, but could not submit electronically, the Form GST TRAN-1 due to technical glitches on the GST Portal. It admits, there is no evidence available with it, to establish the number of attempts made by it or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted, had been obstructed by the executive authorities. They chose to selectively and therefore arbitrarily allow some "registered persons" to submit/revise electronically, the Form GST TRAN-1 and/or TRAN-2, who fulfilled the arbitrary conditions imposed by such authorities. 10. Second, as to the evidence of technical difficulties experienced by the petitioners and the glitches suffered on the GST Portal, it has been submitted, that fact is wholly admitted and documented. First, reference has been made to repeated extensions of time granted by all the statutory authorities and the legislative action taken to extend the timeline to submit Form GST TRAN-1, for that reason. Then reference has been made to Circular no. 39/13/2018-GST dated 03.04.2018 issued by CBIC recognising the existence of such difficulties and efforts made to remedy the wrong. In face of that admission, no further proof or evidence is required, to establish difficulties faced in individual cases. That test, if applied, would lead to arbitrary results and promote hostile discrimination. Last, reference has been made to various decisions of different High Courts, chiefly, the Delhi High Court, Madras High Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordance with law. That Court further opined, non-filling of Part VII-B of Table no. 7(a) and 7(d) of Form GST TRAN-1 could not impair the rights of the assessee to claim transition ITC. It further recognized - at the relevant time, the GSTN system was in a trial-and-error phase and that from the beginning, the GST Network threw up difficulties in filling up returns etc., on the GST Portal. He has also relied on a decision made on similar lines, pronounced by the Madras High Court in M/s Carlstahl Craftsman Enterprises Private Limited Vs. Union of India & 3 Ors., W.P. No. 11119/2020 dated 23.4.2020, and another decision of that High Court in M/s Bharat Electronics Limited Vs. Commissioner of GST & Central Excise and 3 Ors., W.P. No. 2937 of 2019 dated 21.6.2021, wherein the multiple difficulties faced by the taxpayers in filling up and submitting electronically Form GST TRAN-1 were recognized. He also relied upon the decision of the Gujarat High Court in Jakap Metind Pvt. Ltd. Vs. Union of India, 2019 (31) GSTL 422 (Guj.) and Siddharth Enterprises Vs. Nodal Officer, 2019 (29) GSTL 664 (Guj.) to submit that in similar circumstances, the Gujarat High Court has also taken the same vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Mishra, relying on the decision in Commissioner of Income Tax Vs. Mahalaxmi Sugar Mills Co. Ltd. (supra), the precise issue was whether the business loss incurred in India could be set off against dividend income accrued in Pakistan, in the context of Section 24(1) of the Indian Income Tax Act, 1922. The issue was decided on the strength of the language of that statutory provision under that Act. 16. In the present case, the duty on the statutory authorities to examine the correctness of the claim of ITC would arise only upon submission of declaration on Form GST TRAN-1. We find no statutory basis to obligate the statutory authorities to grant benefit of ITC in absence of such declaration. For that reason, we find the ratio in the aforesaid decision to be inapplicable to the facts and law in the present case. 17. As to the other submission advanced by Sri Mishra, relying on Dhampur Sugar Mills Ltd. (supra), there could be no dispute that a correction made in the return or declaration filed by a "registered person"/taxpayer would relate back to the date of filing of the original return/declaration. However, the issue here is whether the petitioners continues to be entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the majority opinion in the Constitution Bench decision of the Supreme Court in K.S. Paripoornan Vs. State of Kerala & Ors., (1994) 5 SCC 593, he would submit, such a transition provision must be read keeping in mind the mischief sought to be addressed by the legislature while enforcing the substantive law, during the period of transition. He has also relied on the decision of the Supreme Court in Jayam & Company Vs. Assistant Commissioner (CT) & Anr. (2016) 15 SCC 125 and ALD Automotive Pvt. Ltd. Vs. Commercial Tax Officer & Ors., 2018 (364) ELT 3 (SC) to submit, CENVAT and/or ITC carry forward as on 30.06.2017 was not a vested right but, only a concession granted in law. 21. The submissions advanced by the learned Additional Advocate General have been adopted by the learned Additional Solicitor General of India and other counsel of the CGST authorities. Shri Krishna Ji Shukla, learned counsel for the Union of India also placed reliance on the decision of the Madras High Court in M/s P.R. Mani Electronics Vs. Union of India & Anr., (2020) 7 MLJ 605. 22. Having heard learned counsel for the parties and having given our anxious consideration to the issues raised, we find, princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engaged in the manufacture of exempted goods or provision of exempted services, or who was providing works contract service and was availing of the benefit of notification No. 26/2012-Service Tax, dated the 20th June, 2012 or a first stage dealer or a second stage dealer or a registered importer or a depot of a manufacturer, shall be entitled to take, in his electronic credit ledger, credit of eligible duties in respect of inputs held in stock and inputs contained in semifinished or finished goods held in stock on the appointed day subject to goods held in stock on the appointed day, within such time and in such manner as may be prescribed, subject to the following conditions, namely:- (i) such inputs or goods are used or intended to be used for making taxable supplies under this Act; (ii) the said registered person is eligible for input tax credit on such inputs under this Act; (iii) the said registered person is in possession of invoice or other prescribed documents evidencing payment of duty under the existing law in respect of such inputs; (iv) such invoices or other prescribed documents were issued not earlier than twelve months immediately preceding the appointed day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under the existing law shall be entitled to take, in his electronic credit ledger, credit of eligible duties in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock on the appointed day subject to goods held in stock on the appointed day, within such time and in such manner as may be prescribed, subject to the following conditions, namely:- (i) such inputs or goods are used or intended to be used for making taxable supplies under this Act; (ii) the said registered person is not paying tax under section 10; (iii) the said registered person is eligible for input tax credit on such inputs under this Act; (iv) the said registered person is in possession of invoice or other prescribed documents evidencing payment of duty under the existing law in respect of inputs; and (v) such invoices or other prescribed documents were issued not earlier than twelve months immediately preceding the appointed day. (7) Notwithstanding anything to the contrary contained in this Act, the input tax credit on account of any services received prior to the appointed day by an Input Service Distributor shall be eligible for distribution as credit u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 3 of the Customs Tariff Act, 1975; (iv) omitted (v) the duty of excise specified in the First Schedule to the Central Excise Tariff Act, 1985; (vi) the duty of excise specified in the Second Schedule to the Central Excise Tariff Act, 1985; and (vii) the National Calamity Contingent Duty leviable under section 136 of the Finance Act, 2001, in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock on the appointed day. Explanation 2: For the purposes of Sub-sections (1) and (5), the expression "eligible duties and taxes" means- (i) the additional duty of excise leviable under section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957; (ii) the additional duty leviable under sub-section (1) of section 3 of the Customs Tariff Act, 1975; (iii) the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act, 1975; (iv) omitted (v) the duty of excise specified in the First Schedule to the Central Excise Tariff Act, 1985; (vi) the duty of excise specified in the Second Schedule to the Central Excise Tariff Act, 1985; (vii) the National Calamity Contingent D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of two conditions, namely, the return for such CENVAT credit of eligible duty and/or VAT ITC should have been furnished by a "registered person" under the pre-existing law/s. In case such person was not registered under the pre-existing laws, he may avail ITC on tax paid inputs, stocks etc., against Tax Invoices. Second, compliance of time and manner prescribed, is required to be fulfilled. Importantly, the words "within such time and" have been inserted by Finance Act, 2020, with full retrospective effect from 01.07.2013. 26. Insofar as the first condition is concerned, there is little difficulty in the present batch of cases since all petitioners claim to have filed their return of CENVAT credit, to carry forward CENVAT and/or VAT ITC for the period ending 30 June 2017 or they claim ITC on tax paid inputs, stocks etc., against Tax Invoices held by them. Many petitioners have disclosed the date of filing of the return, in their writ petition. The same has not been disputed by the revenue authorities. In other cases, though such returns are claimed to have been filed, that date of filing has not been disclosed. Yet, it is not the submission of the revenue authorities (in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e enacting the GST law, the Parliament and the State Legislature were conscious of the duties and obligations created under the new law. It is those obligations for which timeline and manner has been prescribed. Therefore, the condition within such time and within such manner, must be read only in conjunction with the right to avail entitlement to take into the Electronic Credit Ledger, the amount of CENVAT credit or ITC. 31. The submission of the learned Additional Advocate General that the CENVAT or ITC either under the pre-existing/repealed law or under the new law is only in the nature of a concession made, even if correct, may not be decisive of the dispute before us. We observe, the carry forward CENVAT and ITC under the pre-existing laws would remain a statutory entitlement. It may be taken credit in the Electronic Credit Ledger, under the new GST regime. However, it would remain subject to the fulfilment of the twin conditions noted above and the further conditions arising under the proviso to section 140(1) of the CGST Act. 32. Thus, the right to avail ITC did not get vested on the petitioners upon their filing returns under the pre-existing laws. The petitioners were ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as to applicability of the ratio laid down by the Supreme Court in the decisions in Jayam & Company Vs Assistant Commissioner (CT) and Another (supra) and ALD Automotive Pvt. Ltd. Vs Commercial Tax Officer & Ors. (supra). The issue before us may be dealt with, as below. 37. Coming back to the Scheme of the Act, we find, Section 164 of the CGST Act and the UPGST Act empowers the Union and the State Governments to make Rules on matters required to be or that may be prescribed or in respect of which provisions are to be or may be made. Therefore, Rule 117 of the CGST Rules clearly appears to be a rule made to give effect to the transition provisions of the Act. It provides for filing/revision electronically, of Form GST TRAN-1 and/or TRAN-2, to obtain credit of ITC. In this regard, the provisions of Rule 117 read as under: "117. Tax or duty credit carried forward under any existing law or on goods held in stock on the appointed day.- (1) Every registered person entitled to take credit of input tax under Section 140 shall, within ninety days of the appointed day, submit a declaration electronically in FORM G.S.T. T.R.A.N.-1, duly signed, on the Common Portal specifying therein, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds or services; (iii) the quantity in case of goods and the unit or unit quantity code thereof; (iv) the amount of eligible taxes and duties or, as the case may be, the value added tax [or entry tax] charged by the supplier in respect of the goods or services; and (v) the date on which the receipt of goods or services is entered in the books of account of the recipient. (3) The amount of credit specified in the application in FORM G.S.T. T.R.A.N.-1 shall be credited to the electronic credit ledger of the applicant maintained in FORM G.S.T. P.M.T.-2 on the Common Portal. (4) (a)(i) A registered person, holding stock of goods which have suffered tax at the first point of their sale in the State and the subsequent sales of which are not subject to tax in the State availing credit in accordance with the proviso to sub-section (3) of Section 140 shall be allowed to avail input tax credit on goods held in stock on the appointed day in respect of which he is not in possession of any document evidencing payment of value added tax. (ii) The credit referred to in sub-clause (i) shall be allowed at the rate of sixty per cent. on such goods which attract State tax at the rate of ni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the appointed date (01.07.2017), to submit electronically, the declaration on Form GST TRAN-1. That period could be extended by a further period of 90 days, by the Commissioner on the recommendation of the GST Council. As a fact, extension was granted up to 27.12.2017. Thereafter, by virtue of the CGST (Amendment) Rules 2020 and introduction of sub-Rule 1A of Rule 117 to the CGST Rules, 2017, the Commissioner was further empowered to act on the recommendation of the GST Council and extend the time limit - to submit the Form GST TRAN-1, electronically, up to 31.03.2020. Again, as a fact, that extension was granted vide Order no.01/2020/GST dated 07.02.2020. It reads as below: F. No. CBEC-20/06/17/2018-GST (Pt. I) Government of India Ministry of Finance (Department of Revenue) [Central Board of Indirect Taxes and Customs] *** New Delhi, the 7th February, 2020 Order No. 01/2020-GST Subject: Extension of time limit for submitting the declaration in FORM GST TRAN-1 under rule 117(1A) of the Central Goods and Service Tax Rules, 2017 in certain cases In exercise of the powers conferred by sub-rule (lA) of rule 117 of the Central Goods and Services Tax Rules, 2017 read wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17), and section 21 of Union Territory Goods and Services Tax Act, 2017 (14 of 2017), in view of the spread of pandemic COVID-19 across many countries of the world including India, the Government, on the recommendations of the Council, hereby notifies, as under,- (i) where, any time limit for completion or compliance of any action, by any authority or by any person, has been specified in, or prescribed or notified under the said Act, which falls during the period from the 20th day of March, 2020 to the 29th day of June, 2020, and where completion or compliance of such action has not been made within such time, then, the time limit for completion or compliance of such action, shall be extended upto the 30th day of June, 2020, including for the purposes of-- (a) completion of any proceeding or passing of any order or issuance of any notice, intimation, notification, sanction or approval or such other action, by whatever name called, by any authority, commission or tribunal, by whatever name called, under the provisions of the Acts stated above; or (b) filing of any appeal, reply or application or furnishing of any report, document, return, statement or such other record, by wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit/revise/re-revise, electronically, the Form GST TRAN-1/TRAN-2, within time as stood extended upto 31.8.2020. Here, we find, the matter has matured for our consideration after a long lapse of time. Thus, we have the benefit of not only the decisions of other High Courts wherein similar submissions had been considered but also the opportunity to observe the conduct of the statutory authorities themselves, to test how they had looked at and reacted to the situation as had developed on or after 01.07.2017, with respect to the transition to be made from the erstwhile plural indirect tax regime to the singular GST regime. 45. While the petitioners had been clamouring as to the technical difficulties and glitches or obstructions faced by them in submitting/revising the Form GST TRAN-1/TRAN-2 electronically, we may not be required to rule on those pleadings with suspicion, in view of the stand that has been taken by the CBIC itself, as reflected in its Circular letter dated 3 April 2018. We are aware, the said Circular does not directly concern itself with the extension of time and the latitude to be granted to the "registered person", to submit/revise electronically, the Form GST TRAN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Committee (GIC) which shall act as the IT Grievance Redressal Committee. In GIC meetings convened to address IT issues or IT glitches, the CEO, GSTN and the DG (Systems), CBEC shall participate in these meetings as special invitees. 5. Nodal officers and identification of issues 5.1 GSTN, Central and State government would appoint nodal officers in requisite number to address the problem a taxpayer faces due to glitches, if any, in the Common Portal. This would be publicized adequately. 5.2 Taxpayers shall make an application to the field officers or the nodal officers where there was a demonstrable glitch on the Common Portal in relation to an identified issue, due to which the due process as envisaged in law could not be completed on the Common Portal. 5.3 Such an application shall enclose evidences as may be needed for an identified issue to establish bonafide attempt on the part of the taxpayer to comply with the due process of law. 5.4 These applications shall be collated by the nodal officer and forwarded to GSTN who would on receipt of application examine the same. GSTN shall after verifying its electronic records and the applications received, identify the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g this process vis-à-vis the amount of credit which was recorded by the taxpayer in the TRAN-1, which could not be filed. If needed, GSTN may request field formations of Centre and State to collect additional document/ data etc. or verify the same to identify taxpayers who should be allowed this procedure. 8.3 GSTN shall communicate directly with the taxpayers in this regard and submit a final report to GIC about the number of TRAN-1s filed and submitted through this process. 8.4 The taxpayers shall complete the process of filing of TRAN 1 stuck due to IT glitches, as discussed above, by 30th April 2018 and the process of completing filing of GSTR 3B which could not be filed for such TRAN 1 shall be completed by 31st May 2018. 9. The decisions of the Hon'ble High Courts of Allahabad, Bombay etc., where no case specific decision has been taken, may be implemented in-line with the procedure prescribed above, subject to fulfillment of the conditions prescribed therein. Where these conditions are not satisfied, Hon'ble Courts may be suitably informed and if needed review or appeal may be filed.10. Trade may be suitably informed and difficulty if any in implementation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isting laws, for period ending 30.06.2017 or by production of Tax Invoice of input or stocks etc. The second stipulation is, such figures must be translated and submitted electronically on the GST Portal through the Form GST TRAN-1/TRAN-2, within the prescribed time. As to the prescribed manner, there is no quarrel between the parties. The petitioners do not contend, that the details required to be filled up in the Form were impossible or difficult to be filled up. The only challenge they raise is based on their inability to submit electronically that data on the GST Portal, within time granted. 49. Undisputedly, the GST Portal was set up and was run and managed by Government corporation known as the GST Network. There was no alternative method available to submit electronically the Form GST TRAN-1/TRAN-2. Therefore, unless the said GST Portal was up and running without any errors, the time limit that had been set by the Act and the Rules and the orders and notifications issued thereunder, would remain directory or elastic, within reasonable limits. That time limit was set at the date 31.08.2020. 50. Though the consequence of non-submission of those Forms are also clearly visible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner a relief similar to the one granted in those cases. In those cases also, there was some error committed by the Petitioners which they were unable to rectify in the TRAN-1 Form and as a result of which, they could not file the returns in TRAN-2 Form and avail of the credit which they were entitled to. In both the said decisions, the Court noticed that GST system is still in the 'trial and error phase' insofar as its implementation is concerned. It was observed in Bhargava Motors (supra) as under: "10. The GST System is still in a 'trial and error phase' as far as its implementation is concerned. Ever since the date the GSTN became operational, this Court has been approached by dealers facing genuine difficulties in filing returns, claiming input tax credit through the GST Portal. The Court's attention has been drawn to a decision of the Madurai Bench of the Madras High Court dated 10th September, 2018 in W.P. (MD) No. 18532/2018 (Tara Exports v. Union of India) where after acknowledging the procedural difficulties in claiming input tax credit in the TRAN-1 form that Court directed the respondents "either to open the portal, so as to enable the petitioner to file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ystem provided for revision of a return, the deadline for making the revision coincided with the last date for filing the return i.e., 27th December, 2017, rendering such facility to be impractical and meaningless. 11. Further, this Court, in the case of Aadinath Industries & Ors. v. Union of India and Ors.5, Lease Plan India Private Limited v. Government of National Capital Territory of Delhi and Ors.6, Godrej & Boyce Mfg. Co. Ltd. v. Union of India and Ors.7, Arora & Co v. Union of India & Ors., 8 and M/s Blue Bird (supra), has taken a similar view. In our view, the non- filing of part 7B of table 7(a) and table 7(d) of TRAN-1 Form cannot impair the rights of the petitioner to claim transition ITC, if he is otherwise eligible. This Court has observed in numerous decisions that the GST system was in a trial-and-error phase as far as its implementation was concerned and ever since GSTN network became operational, taxpayers genuinely faced difficulties in filing the returns and input tax credit in the GST Portal. Acknowledging the procedure and difficulties in claiming input tax credit, this Court and several other High Courts have granted relief to such taxpayers. Failure on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TRAN-1 form is a genuine one which should not preclude him from having its claim examined by the authorities in accordance with law. A direction is accordingly issued to the Respondents to either open the portal so as to enable the Petitioner to again file TRAN-1 electronically or to accept a manually filed TRAN-1 on or before 31st May, 2019. The Petitioner's claims will thereafter be processed in accordance with law. 12. With a view to ensure that in future such glitches can be overcome, the Court directs the Respondents to consider providing in the software itself a facility of the trader/dealer being able to save onto his/her system the filled up form and also a facility for reviewing the form that has been filled up before its submission. It should also permit the dealer to print out the filled up form which will contain the date/time of its submission online. The Respondents will also consider whether there can be a message that pops up by way of an acknowledgement that the Form with the credit claimed has been correctly uploaded. 23. In this case, it is not as if the petitioner has not filed FORM GST TRAN-1 within the time provided by the respondents under the rules. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m to be plausible and we find ourselves in consonance with the argument of Petitioners that unutilized credit arising on account of duty/tax paid under erstwhile Acts is vested right which cannot be taken away on procedural or technical grounds. The Petitioners who were registered under Central Excise Act or VAT Act must be filing their returns and it is one of the requirements of Section 140 of CGST Act, 2017 to carry forward unutilized credit. The Respondent authorities were having complete record of already registered persons and at present they are free to verify fact and figures of any Petitioner thus inspite of being aware of complete facts and figures, the Respondent cannot deprive Petitioners from their valuable right of credit." 57. Earlier, a coordinate Bench of this Court in Writ Tax No. 1120 of 2019 (M/S Ingersoll-Rand Technologies & Services Pvt. Ltd. Vs. Union of India & 3 Ors.) also had the occasion to consider this issue whereupon it required the GST Council to take a decision in the matter. The matter was required to be examined by the GST Council. However, no contrary view (of this Court), has been shown to us. 58. Undisputedly, existence of various opinions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstruction thus caused was attributable only to the conduct of the State authorities since, the GST Portal is a creation of the State authorities and the responsibility to run the same seamlessly, rests exclusively on them. The "registered persons"/taxpayers, whose rights were adversely impacted by the lack of smooth operation of the GST Portal, could not be saddled with any civil consequences arising from the non-functioning or improper or irregular functioning of the GST Portal. 64. Once the CBIC clearly recognised the existence of such technical glitches on the GST Portal, we fail to understand why and on what reasonable basis the CBIC and the revenue authorities insisted for specific evidence and verification as a condition to grant relaxation of timeline - to submit/revise/re-revise Form GST TRAN-1/TRAN-2. The "registered persons"/taxpayers have been saddled with the burden to produce evidence of individual difficulty faced. In absence of existence of any statutory requirement (at the relevant time), that burden would now involve recalling from memory, the number of attempts made and the time and date when such attempt was made - to retrieve electronic trail of that event. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute or Rule. 69. If allowed to work, it would create hostile discrimination between two similarly situated persons based solely on the chance occurrence of one having in his possession proof of attempt/s made to submit/revise/rerevise Form TRAN-1/TRAN-2, electronically, though he was not required (by law), to obtain or maintain such evidence. Any law that may differentiate between two similarly situated persons based on a chance occurrence/s and allow the valuable civil rights of a citizen to be prejudiced, based solely on that, would remain exposed to the vice of arbitrariness and therefore be invalid. In State of Andhra Pradesh & Anr. Vs. Nalla Raja Reddy & ors., AIR 1967 SC 1458, a Constitution Bench of the Supreme Court observed as under:- "Official arbitrariness is more subversive of doctrine of equality than the statutory discrimination. In spite of statutory discrimination, one knows where he stands but the wand of official arbitrariness can be waved in all directions indiscriminately." 70. Similarly, in S.G. Jaisinghani Vs. Union of India & ors., AIR 1967 SC 1427, a Constitution Bench of the Supreme Court observed as under:- "In the context it is important to emphasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally, would be made by the concerned jurisdictional authority, within a period of two weeks. (iv) In the event of any objection arising, one limited opportunity may be given to that petitioner to correct or revise or re-revise the physical Form GST TRAN-1/TRAN-2. That exercise may be completed within a period of three weeks and the report be submitted accordingly. (v) Upon completion of that exercise, the jurisdictional authority shall forward his report along with said physical GST TRAN-1/TRAN-2 to the GST Network, within a further period of one week, with a copy of that communication to the petitioner concerned, through Email or other approved mode. No form submitted in compliance of this order would be rejected/declined as filed outside time. (vi) The GST Network shall thereupon either itself upload the GST TRAN-1/TRAN-2, within two weeks of receipt of such communication or allow that petitioner opportunity to upload those details, within a reasonable time. 74. We make it clear, the above exercise would be a one-time affair and any details thus submitted would not remain open to any further or other revision by the petitioners/"registered persons". 75. Since, we have no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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