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TMI Blog2021 (11) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... thyanarayana And Honourable Mr.Justice Mohammed Shaffiq For the Appellants : Mr.V.Sundareswaran, Standing Counsel, Mr.G.Shivadas Senior Counsel For the Respondent : Ms.P.Jayalakshmi JUDGMENT MOHAMMED SHAFFIQ, J. 1. The petitioner/respondent herein aggrieved by the action of the Revenue / appellant herein in not permitting them to revise the Form TRAN- 1 resulting in deprivation of the Input Tax Credit filed a Writ Petition in W.P.No.2937 of 2019. 2. This Hon'ble Court on hearing the above matter was pleased to direct the respondent/appellant herein to enable the petitioner/respondent herein to file a revised Form TRAN-1, by opening of the portal and that such exercise was to be completed within a period of 8 weeks from the date of issue of the impugned order. The Revenue, aggrieved by the above order of the Learned Single Judge has preferred this intra Court appeal. 3. The respondent had lodged a claim for Input Tax / CENVAT Credit by filing form TRAN-1, admittedly, within time and disclosed a credit of ₹ 14,97,28,201/- as Balance Credit in Column 5(a) of form TRAN-1, while showing a sum of ₹ 80,98,936/- in Column 6 of form TRAN-I, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provisions) (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 GST TRAN-1, duly signed, on the common portal specifying therein, separately, the amount of input tax credit to which he is entitled under the provisions of the said section: Provided that the Commissioner may, on the recommendations of the Council, extend the period of ninety days by a further period not exceeding ninety days. Provided further that where the inputs have been received from an Export Oriented Unit or a unit located in Electronic Hardware Technology Park, the credit shall be allowed to the extent as provided in sub-rule (7) of rule 3 of the CENVAT Credit Rules, 2004. (1A) Notwithstanding anything contained in sub-rule (1), the Commissioner may, on the recommendations of the Council, extend the date for submitting the declaration electronically in Form GST TRAN-1 by a further period not beyond 31st March 2019, in respect of registered persons who could not submit the said declaration by the due date on account of technical difficulties on the common portal and in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment that the amount of ₹ 14,97,98,201/-, would not be transitioned in view of the mistake in not reflecting the correct amount in Column 6 of Form TRAN-1. 9. It is submitted by the appellant that Rule 120A of the CGST Act 2017, does not enable an assessee / taxable person to rectify more than once and the respondent / assessee having already carried out a rectification, it is impermissible for the respondent / assessee to carry out one more correction, more so, when such attempt to correction is made after the expiry of the extended time limit on 27.12.2017. In this regard, reliance was sought to be placed on the judgment of the Hon'ble Supreme Court in the case of ALD Automotive Private Limited v. Commercial Tax Officer, (2019) 13 SCC 225 (ALD Automotive) and the decision of the Division Bench of the Hon'ble High Court of Bombay in the case of Nelco Limited v. Union of India [2020 SCC Online Bom 437] (Nelco), to support their contention, that Input Tax Credit is in the nature of the concession and any conditions attached thereto ought to be strictly construed including limitation, if any, prescribed for claiming such credit. There are no two views wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of form TRAN- 1. The only error is that in Column 6 of Form TRAN-1, the respondent had erroneously shown a sum of ₹ 80,98,936/- instead of ₹ 14,97,28,201/-. (b) The respondent / assessee have complied with the requirement of filing Form TRAN-1 within time, to transition credit of ₹ 14,97,28,201/- stated to be legitimately earned under the erstwhile regime. Thus, there is substantial compliance with the requirements of Section 140 of the GST Act which provides for transition of credit under the erstwhile regime to GST. In this regard, it may be useful to refer to the decision of the Constitutional Bench of the Hon'ble Supreme Court in the case Commissioner of Customs vs. Dilipkumar and Co. (2018) 9 SCC 1: 2018 SCC Online SC 747, wherein the Doctrine of Substantial compliance was held to be applicable even while considering a claim of exemption, thus, the above doctrine would afortiorari apply to a claim of Input Tax Credit. The relevant portion of the judgment is extracted under :- 51.The Constitution Bench then considered the doctrine of substantial compliance and intended use . The relevant portions of the observations in Paras 31 to 34 are in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied with notwithstanding the non- compliance of directory requirements. In cases where substantial compliance has been found, there has been actual compliance with the statute, albeit procedurally faulty. The doctrine of substantial compliance seeks to preserve the need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to forgive non-compliance for either unimportant and tangential requirements or requirements that are so confusingly or incorrectly written that an earnest effort at compliance should be accepted. 34.The test for determining the applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often, the critical question to be examined is whether the requirements relate to the substance or essence of the statute, if so, strict adherence to those requirements is a precondition to give effect to that doctrine. On the other hand, if the requirements are procedural or directory in that they are not of the essence of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict complianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion virtually means this : No doubt you were eligible and entitled to make the adjustments. There was also no impediment in law to grant you such permission. But see language of Clause 5. Since we did not give you the permission you cannot be permitted to adjust Is this the effect of the law? 24. After considering the arguments of the counsel and after considering its own decisions in various cases including the decision in the case of Kedarnath Jute Manufacturing Co. V/s. Commissioner of Income Tax, Supreme Court allowed the appeal while quoting Lord Denning [in the case of Wells Vs. Minister of Housing and Local Government: 1967 (1) WLR 1000 ] as under : Now I know that a Public Authority cannot be stopped from doing its public duty, but I do think it can be stopped from relying upon a technicality and this is a technicality . It may also be relevant to quote Francis Bennion in his Statutory Interpretation , 1984 edition at page 683 which reads as under: Unnecessary technicality : Modern Courts seek to cut down technicalities attendant upon a statutory procedure where these cannot be shown to be necessary to the fulfillment of the purposes of the legis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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