TMI Blog2022 (7) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... nable to appreciate how the petitioner is expected to be aware of the technical difficulties faced by the officer or indeed, why such delay should enure to its detriment - The petitioner is entitled to the claim for refund, prima facie, as evidenced by order dated 30.12.2016 of the first respondent wherein the amount in question has been determined as excess payment and there is no dispute raised in this regard. Levy of penalty and interest - HELD THAT:- Sustaining the penalty and interest would be hypertechnical. No doubt, the petitioner has made an inadmissible claim of transition. While the filing of a TRAN 1 is clearly misconceived, the petitioner is protected by the intention to protect its claim for refund in the face of the unjustified, and admitted delay on the part of the respondents. That apart, the provisions of Section 74 would be applicable only in the case of wrongful availment/utilization of ITC by reason of fraud. The precondition for invocation of Section 74 is that the revenue must establish willful misstatement or suppression to evade tax - In the present case, the question evasion of tax does not arise since it is not an assessment but only determination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly lays an embargo against the availment of credit where such credit is attributable to a claim under the CST Act, providing only for a refund of the amount. (ix) The petitioner made a request before the 1st respondent/Deputy Commissioner seeking refund of the amount in question. (x) The refund claim was not acted upon, also admittedly. (xi) The petitioner was well aware of the position that it could not claim transition of the amount in question in light of the bar under Section 140(1). Thus and rightly, it did not, initially, seek transition in the TRAN-1 filed by it in the GST Portal. (xii) However with the ticking of the clock, the petitioner grew apprehensive that it would be denied the refund and would also miss the bus as far as claiming of the credit was concerned. (xiii) The extension of time granted for filing of TRAN-1 till 27.12.2017 came as a boon for the petitioner which filed a TRAN-1 claiming the refund as credit carried forward. (xiv) The above admittedly, constitutes an inadmissible claim, and there is no doubt either in the Court's mind nor in the mind of the petitioner, in this regard. 3. It is in the aforesaid circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to him in cash under the said law, and the amount rejected, if any, shall not be admissible as input tax credit under this Act. 8. The above provision, clearly, places a restriction on the availment of credit of any amount of refund to which the taxable person is entitled under the erstwhile laws. He really need not labour on this position for the reason that it is nobody s case that the petitioner is at all entitled to credit/transition. All the petitioner wants is a refund of the amount in question. In addition, the petitioner would pray that the penalty and interest levied under the impugned order be set aside as the act of transition, though incorrect, was only to ensure the protection of its interest. 9. Having considered the detailed submissions of both learned counsel, I am of the categoric view that the petitioner must succeed on the facts and circumstance of the case. 10. The provisions of Section 42(5) of the TNVAT Act provide for the payment and recovery of tax, penalty etc. and cast a mandate upon the Commercial Taxes Department to refund any excess determined within a period of 90 days from date of order of assessment/revision/appellate order. Where the refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is indeed curious that the respondent should expect the petitioner to wait till its house has been brought to order, that is, once technical issues faced by it stand resolved and thereafter persist with the request for refund. This Court is unable to appreciate how the petitioner is expected to be aware of the technical difficulties faced by the officer or indeed, why such delay should enure to its detriment. 15. The petitioner is entitled to the claim for refund, prima facie, as evidenced by order dated 30.12.2016 of the first respondent wherein the amount in question has been determined as excess payment and there is no dispute raised in this regard. 16. Coming to the imposition of penalty and levy of interest under the impugned order, I am of the view that sustaining the same would be hypertechnical. No doubt, the petitioner has made an inadmissible claim of transition. However, I have noticed earlier that it was a last ditch effort by a desperate assessee and I reiterate that view. 17. The counter of the respondent would support the delay for refund citing technical problems. Such technical problems are still ongoing and thus, the petitioner cannot be expected to wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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