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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 ..... nal Advocate General do appear to lay down, by way of a principle, that ITC is not a vested right but merely a concession, at the same time, we cannot overlook the fact that those decisions arose under different laws. It may not be empirically correct to contend that CENVAT or ITC is a pure concession as concessions do not necessarily spring from a conceptual base to tax value addition. However, that principle may be relevant only to determine the ITC arising against transactions performed after enforcement of the GST regime i.e., post 01.07.2017. It may not be true of past/earlier transactions arising under the pre-existing/repealed laws, in the context of pure transition provision. 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 - a detailed procedure has been prescribed to subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive, the clear intent of the legislature is to grant benefit of CENVAT and ITC under the pre-existing laws, as may have been carried forward on the appointed date 01.07.2017. In such circumstances, if the GST Portal had worked seamlessly, all petitioners would have submitted/revised/re-revised electronically, their Forms GST TRAN-1 and/or TRAN-2 within the time granted - Taxing statute and equity considerations are not natural allies. At the same time, in the context of a purely procedural requirement and transition provision, we cannot act unmindful of that consequence - if the respondents had offered a functional system, the State could not have deprived the petitioners of transition credit of CENVAT and ITC (under the repealed laws) - thus, there is no hesitation in observing that a reasonable opportunity ought to have been granted to all registered persons /taxpayers to submit/revise/re-revise electronically their Form GST TRAN-1/TRAN-2. Petition allowed. - Writ Tax No. - 477 of 2021, 225 of 2021, 872 /2018 - - - Dated:- 15-9-2021 - Hon'ble Naheed Ara Moonis And Hon'ble Saumitra Dayal Singh JJ. For the Petitioner : Shubham Agrawal, Nishant Mishra,Tanmay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have evidence of such attempt/s made. The third type of cases, involve a variety of the first two types described above. Therein, petitioners claim, though they tried to submit or revise electronically, the Form GST TRAN-1 and/or TRAN-2 on the GST Portal, they could not succeed in the same. They do not have any evidence of such attempt made to submit or revise electronically, the Form GST TRAN-1 and/or TRAN-2. Thus, the petitioners claim denial of full benefit of transition credit arising from transactions performed under the repealed indirect tax enactments. 4. For the purposes of convenience, we have heard this batch of writ petitions on the facts disclosed in Writ Tax No. 477 of 2021 (M/s Ratek Pheon Friction Technologies Private Limited Vs. Principal Commissioner, Central Goods and Services Tax Ors.); Writ Tax No. 225 of 2021 (M/s Modern Plywood Center Vs. Union of India Ors.) and; Writ Tax No. 872 of 2018 (Allied Agencies Vs. Union of India 4 Ors.). The facts of these three cases would be sufficient to cover the discussion necessary for the purposes of our decision. At the same time, we deem appropriate to take note of the basic facts involved in all cases in this b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 13.12.2017 - 25 896 /2018 1,56,26,966 - - To be verified 27.12.2017 - - 26 936 /2018 25,01,309 - - 31.5.18 24.11.17 - - 27 944 /2018 9,57,180 9,57,180 - To be verified 27.12.2017 - - 28 965/2018 - - 8,23,297 To be verified 27.12.2017 - - 29 984 /2018 - 5,72,466 - July 2017 27.12.2017 - - 30 1022/2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 41 1218/18 - - 29,86,189 To be verified 27.12.17 - - 42 1251/2018 - 3,08,653 - VAT 19-07-2017 27.12.2017 - - 43 1370/2018 - 2,62,877 - VAT 20.7.2017 27.12.2017 - - 44 2/2019 6,93,914 - - To be verified 27.12.20147 27.12.2017 - 45 119/2019 - 1075302 - To be verified 27.12.2017 27.12.2017 - 46 361/2019 1,81,000 - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377/2020 45,18,280- - - To be verified - 27.12.2017 27.12.2017 74 456/2020 19,80,750 - 10,90,630 To be verified 14.12.2017 14.12.2017 23.5.2020 75 225/2021 - 2,82,035 8,52,511 VAT 18.7.2017 - 23.12.2017 December 2019 76 458/2021 51,19,305 - - 3.7.2017 - - 27.12.2017 and thereafter. 77 671/2021 9,53,880 9,53,880.07 45,40,588.17 26.12.2017 26.12.2017 - - 78 698/2021 62 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 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, ₹ 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 the date or time when such attempts may have been made - to submit electronically, the Form GST TRAN-1. 8. Largely, all learned counsel for the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /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, Gujarat High Court, Calcutta High Court, Bombay High Court and Punjab Haryana High Court, to submit - technical glitches and difficulties faced b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 view as taken by the Delhi High Court while allowing the Form GSTN TRAN-1 to be revised. Last, reliance has also been placed on the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 submit and/or correct their return/declaration on Form GST TRAN-1 and/or TRAN-2. Plainly, the ratio of the decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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, principally, three submissions are required to be dealt with. The first issue for consideration is wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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; and (v) the supplier of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax payable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gible duties that may have been carried forward on 30 June 2017. However, by virtue of the plain language of Section 140 of the Act, that right is subject (mainly) to fulfilment 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner, that Section 140 of the CGST Act and the UPGST Act, prescribed that manner, procedure, and timeline, to be adhered to under the pre-existing/repealed laws. 30. Clearly, while 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d right upon that return being filed under the erstwhile law i.e., the Central Excise Act and the State Sales Tax/VAT Act. 36. That being our opinion, we do not consider it necessary to express any definite opinion 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 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 140, furnish the following details, namely: (i) the name of the supplier, serial number and date of issue of the invoice by the supplier or any document on the basis of which credit of input tax was admissible under the existing law; (ii) the description and value of the goods 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 av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the right to carry forward such credit to the Electronic Credit Ledger would arise. Unless this vital procedural step is taken, the petitioner can never claim a accrual of a vested right to transition ITC. 39. Coming to the alternative submission advanced by learned counsel for the petitioners, it is seen, Rule 117(1) of the CGST Rules lays down a period of 90 days 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication reads as below: Government of India Ministry of Finance (Department of Revenue) Central Board of Indirect Taxes and Customs Notification No. 35/2020 Central Tax New Delhi, the 3rd April, 2020 G.S.R.....(E). In exercise of the powers conferred by section 168A of the Central Goods and Services Tax Act, 2017 (12 of 2017) (hereafter in this notification referred to as the said Act), read with section 20 of the Integrated Goods and Services Tax Act, 2017 (13 of 2017), 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Section 168A still, undeniably, the time limit to submit electronically Form GST TRAN-1/TRAN-2 stood extended in accordance with law, up to 31.08.2020. No contrary provision of law, either statutory or delegated, has been shown to exist as may warrant a different construction to be made to the exercise of powers made by the Commissioner CGST or of the CBIC or the Central Government, acting either on their own or on the recommendation of the CBIC or the GST Council. 44. Having reached that conclusion, it survives for consideration whether the petitioners had made out a case to submit/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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be taken to redress the grievance and the procedure to be followed for implementation of the decision. 3. Scope Problems which are proposed to be addressed through this mechanism would essentially be those which relate to Common Portal (GST Portal) and affect a large section of taxpayers. Where the problem relates to individual taxpayers, due to localised issue such as non-availability of internet connectivity or failure of power supply, this mechanism shall not be available. 4. IT-Grievance Redressal Committee Any issue which needs to be addressed through this mechanism shall be identified by GSTN and the method of resolution approved by the GST Implementation 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 publicize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r revised filing as they could not digitally authenticate the TRAN-1s due to IT related glitches. As a result, a large number of such TRAN-1s are stuck in the system. GSTN shall identify such taxpayers who could not file TRAN-1 on the basis of electronic audit trail. It has been decided that all such taxpayers, who tried but were not able to complete TRAN-1 procedure (original or revised) of filing them on or before 27.12.2017 due to ITglitch, shall be provided the facility to complete TRAN-1 filing. It is clarified that the last date for filing of TRAN 1 is not being extended in general and only these identified taxpayers shall be allowed to complete the process of filing TRAN-1. 8.2 The taxpayer shall not be allowed to amend the amount of credit in TRAN-1 during this process vis- -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 ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different, either to the plight of the registered persons /taxpayers who provide the fuel to run that gigantic machinery of the State or to the purpose and object of the whole exercise. 48. As we have examined above, it was never the object of the Parliament to defeat the CENVAT or ITC arising under the pre-existing/repealed indirect tax laws. In fact, the CGST Act and the UPGST Act sought to protect and make available to the registered persons , the benefit of CENVAT and ITC earned under the pre-existing laws. Mainly, the Parliament enacted two pre-conditions to avail that CENVAT and ITC by insisting, only such CENVAT and ITC be allowed to be recorded in the Electronic Credit Ledger of the registered persons , with respect to which a return may have been filed by that person under the pre-existing 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A long and burdensome transition was attempted all over the country, by all indirect taxpayers. It compounded that difficulty further. The Court cannot remain unmindful of the fact that numerous writ petitions came to be filed all over the country, before different High Courts wherein some Courts granted interim relief while in other cases, final orders came to be passed allowing the complaining registered persons /taxpayers, time to submit/revise the Form GST TRAN-1/TRAN-2, electronically. Thus, the Delhi High Court in the case of Blue Bird Pure Pvt. Ltd. (supra) relied on its earlier decision Bhargava Motors Vs Union of India, dated 13 May, 2019 in WP (C) No. 1280/2018 and observed as under: 10. Having carefully examined those decisions, the Court is unable to find any distinguishing feature that should deny 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 GS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid decisions, this Court has held that inadvertent and genuine mistakes in filling up the correct details of credit in TRAN-1 Form should not preclude taxpayers from having claims examined by the authorities in accordance with law. This Court has consistently been issuing directions to the Respondents and granting relief to such taxpayers. When the Petitioner attempted to upload TRAN-2 Form, it was prevented to do so because of the error committed by him while making the declaration in the TRAN-1 Form, however, the system did not enable the Petitioner to revise TRAN-1 Form on the system. In Blue Bird Pure (supra), this Court, had, in fact, observed that the Respondents ought to have provided a facility in the system itself for rectification of errors which are clearly bona fide. Further, the Court had also noticed that although the system 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 Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came 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 vs. 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 the TRAN1 electronically for claiming the transition credit or accept the manually filed TRAN1 and to allow the input credit claimed after processing the same, if it is otherwise eligible in law. 11. In the present case also the Court is satisfied that the Petitioner's difficulty in filling up a correct credit amount in the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive of article 265 of the Constitution of India. Therefore, when the petitioner is entitled to credit of ₹ 83,99,136/-, non grant of the same is bad in law. 56. In Adfert Technologies Private Ltd. Vs Union of India (supra) the Punjab Haryana High Court also took a similar view. It was held as below: Having scrutinized record of the case(s) and heard arguments of both sides, we find that on the introduction of GST regime, Government granted opportunity to registered persons to carry forward unutilized credit of duties/taxes paid under different erstwhile taxing statues. GST is an electronic based tax regime and most of people of India are not well conversant with electronic mechanism. Most of us are not able to load simple forms electronically whereas there were a number of steps and columns in TRAN-1 forms thus possibility of mistake cannot be ruled out. Various reasons assigned by Petitioners seem 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 we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 61. They were obstructed, and remained disabled (generally) owing, not to any conduct attributable to them but owing solely to factors beyond their control and for reasons attributable to the respondents. Consequently, it would be arbitrary, to enforce strict timeline prescribed under the Act and the Rules framed thereunder, against them. 62. Rule of law and good administration go hand in hand. It is true, no ITC may arise under the GST regime unless a registered person fulfils the conditions therefor, so also, the administration of tax law that is in the hands of the GST Council, GST Commissioner (Central), GST Commissioner (UP), GST Network and all other State or statutory authorities, must allow all registered persons /taxpayers, reasonable opportunity to exercise their rights and make their claims, in the manner contemplated by law. 63. Though unintentional on part of the State authorities, it cannot be lost sight that the obstruction 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T TRAN-1 or TRAN-2. It is only by way of the Circular instruction dated 3.4.2018 that such a requirement was introduced by the revenue authorities. It is arbitrary and therefore unenforceable. 68. Commonly, the CBIC Circulars are issued to give effect to law and make it functional and practical. Insofar as the procedures are concerned, often CBIC Circulars introduce measures to reduce the rigour of law. In the present facts, we find, the CBIC has travelled half the distance required and left the taxpayers in the lurch for the other half. Having recognised the continued generic errors on the GST Portal, it would have been wholly reasonable and within the powers exercised by the CBIC, to remove all legal impediments. Perhaps, it has escaped the attention of the CBIC that it was never the requirement of law that such evidence of failed attempts to submit Form GST TRAN-1/TRAN-2 be maintained, in any form. To enforce that condition is plainly not protected by any Statute 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, we cannot act unmindful of that consequence - if the respondents had offered a functional system, the State could not have deprived the petitioners of transition credit of CENVAT and ITC (under the repealed laws). 72. Thus, we have no hesitation in observing that a reasonable opportunity ought to have been granted to all registered persons /taxpayers to submit/revise/re-revise electronically their Form GST TRAN-1/TRAN-2. 73. For the reasons given above, we allow all the writ petitions with the following directions: (i) All petitioners before this Court may first file physical Form GST TRAN-1/TRAN-2 before their respective jurisdictional authority, within a period of four weeks from today. (ii) That jurisdictional authority shall then make a report in writing on the same, as to compliances contemplated under Section 140 of the CGST Act and Rule 117 of the CGST Rules. (iii) In case, no objection be taken, a report to submit/revise/re-revise the Form GST TRAN-1/TRAN-2 electronically, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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