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GST - Case Laws
Showing 61 to 80 of 167 Records
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2023 (1) TMI 842
Vailidity of order of HC setting aside the SCN - Detention of goods alongwith the vehicle - allegation with respect to evasion of duty - levy of tax, penalty and other charges - Section 130 of the Punjab GST Act, 2017 and IGST Act, 2017 and CGST Act, 2017 - HELD THAT:- From the notice dated 14.09.2021, it can be seen that the original writ petitioner was called upon to show cause within 14 days from the receipt of the said notice, as to why the goods in question and the conveyance used to transport such goods shall not be confiscated under the provisions of Section 130 of the Punjab GST Act, 2017 and IGST Act, 2017 and CGST Act, 2017 and why the tax, penalty and other charges payable in respect of such goods and the conveyance shall not be payable.
The High Court has materially erred in entertaining the writ petition against the show cause notice and quashing and setting aside the same. However, at the same time, the order passed by the High Court releasing the goods in question is not to be interfered with as it is reported that the goods have been released by the appropriate authority.
The impugned judgment and order passed by the High Court is set aside to the extent quashing and setting aside the notice dated 14.09.2021, issued under Section 130 of the CGST Act and the matter remanded to the appropriate authority, who issued the notice.
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2023 (1) TMI 841
Refund of IGST and CGST - rejection of refund without providing opportunity of hearing - violation of principles of natural justice (audi alterem partem) - HELD THAT:- The authority conclusively found that the natural justice had not been followed by the adjudicating authority, however, on the basis that natural justice was duly followed during appeal proceedings, did not interfere with the order on account of the said aspect of violation of principle of natural justice.
It is well settled that a failure of natural justice in the authority of first instance cannot be cured by sufficiency of natural justice in the appellate body, else the same would encourage the tendency of the authorities to give a short shrift to the proceedings before them.
The Hon’ble Supreme Court in 63 Moon Technologies Ltd. v. Union of India [2019 (5) TMI 522 - SUPREME COURT], pointed out that breach or defect in observing Rules of natural justice in the trial administrative body cannot generally be cured by observing natural justice at the appellate stage, particularly when a clear statutory right has given at the trial stage of an assessment of compensation first by the prescribed authority and then a right of appeal to the appellate Tribunal.
In view of the above fact situation, wherein admittedly the principles of natural justice have been violated by the adjudicating authority and the appellate authority only on account of the fact that it had provided opportunity of hearing, did not interfere with the order of the adjudicating authority, both the orders cannot be sustained.
The matter is remanded back to the adjudicating authority to follow the provisions of Rule 92(3) of the CGST Rules and thereafter pass an appropriate order in accordance with law - Petition allowed by way of remand.
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2023 (1) TMI 840
Seeking release of Attached Bank Account of petitioner - petitioner submits that there is a grave urgency because if the order freezing the bank accounts continues, there would be no possibility of the petitioner reviving its business - HELD THAT:- There is a serious apprehension that the merchants are not genuine. However, he concedes that as far as monies belonging to genuine merchants are concerned; the disbursement cannot be interdicted.
The present petition is disposed of with liberty to the petitioner to apply afresh in case the petitioner is aggrieved by the order that may be passed in respect of its objections.
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2023 (1) TMI 839
Seeking restoration of GST registration - non-speaking order/ cryptic notice - in the notice only effective date of cancellation of registration was provided and no reasons were given - HELD THAT:- The only ground raised is the cryptic notice, which is of 26.09.2018. Cancellation of registration dated 28.09.2018 is on the ground that there is no reasoning and nothing has been stated - The show cause notice has been submitted and hence the tax effect shown is also zero.
This Court in the case of Aggarwal Dyeing and Printing Works vs. State of Gujarat, [2022 (4) TMI 864 - GUJARAT HIGH COURT], held and observed that assignment of reasons is imperative in nature and the speaking order doctrine mandates assigning the reasons which is the heart and soul of the decision and said reasons must be the result of independent reappreciation of evidence adduced and documents produced in the case.
It would serve the ends of justice in the event the petitioner is provided a fresh opportunity to respond to the fresh show cause notice. Resultantly, the writ petition deserves to be allowed and is accordingly allowed. The order dated 28.09.2018 of cancellation of registration of the petitioner passed by Commercial Tax Officer, Ghathak 17, Ahmedabad is hereby quashed and set aside. The registration of the petitioner is restored forthwith.
Petition disposed off.
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2023 (1) TMI 838
Seeking permission to rectify the GST returns filed for the months of July, 2017 and March, 2018 - HELD THAT:- In the instant case, the petitioner appears to have entered certain figures in the wrong column of his GSTR 3-B returns for the months of July 2017 and March 2018 i.e,, during the very first financial year after the introduction of GST. The copies of the returns submitted / filed by the petitioner clearly demonstrate and evidence the innocuousness of the errors committed by the petitioner.
In the impugned show cause notice, the Revenue has proposed to deny the ITC claimed by the petitioner, which will undoubtedly lead to a serious revenue loss, unlike in the case of UNION OF INDIA VERSUS BHARTI AIRTEL LTD. & ORS. [2021 (11) TMI 109 - SUPREME COURT], where ITC availment was merely postponed as a result of the judgment. It is therefore clear that no reliance can be placed upon the said judgment by the respondents as sought to be contended by them.
In the instant case, the respondents have, in the absence of a prescribed GSTR 2-A for the relevant tax periods referred to the IGST import figures reflected in the ICE GATE portal of the Customs Department for all the months except those in which the errors have been committed. This clearly indicates that the respondents are aware of the actual figures and also that there is an error committed by the petitioner, but has chosen to selectively ignore the IGST import amounts reflected in the ICE GATE portal for the tax periods in dispute, which is yet another circumstance to uphold the claim of the petitioner.
The petitioner is entitled for the limited relief of being permitted to make the necessary changes to its GSTR 3-B returns for the months of July 2017 and March 2018, particularly, since doing so would not cause any prejudice to the respondents-Revenue nor would it upset the chain of credit under the GST scheme and liberty is to be reserved in favour of the revenue to proceed with the impugned show cause notice - petition allowed in part.
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2023 (1) TMI 837
Cancellation of GST registration of petitioner - appealable order or not - application for revocation of the cancellation was not filed within stipulated period - HELD THAT:- Perusal of the material on record and Section 107 of the CGST Act, 2017 will indicate that as against an order passed by respondent No.1 canceling the registration of GST, the petitioner has a remedy by way of appeal under Section 107 before the respondent No.1-Appellate Authority. In this context, it is relevant to state that merely because that the petitioner has an option of seeking revocation of the cancellation under Section 30 of the CGST Act, it cannot be said that independent of the said remedy of seeking revocation of cancellation, an appeal would not be maintainable and as such, the impugned order passed by respondent No.1 summarily dismissing the appeal on the ground that it is not maintainable in view of availability of the remedy of seeking revocation of the cancellation is clearly contrary to Section 107 and Section 30 of the CGST Act and same deserves to be set aside.
Having regard to the material on record and specific assertion on the part of the petitioner that it was not possible for him to seek revocation of the cancellation order on account of the Covid-19 pandemic and till disposal of the appeal by the respondent-Appellate Authority, the said explanation offered by the petitioner in not seeking revocation of the cancellation within a stipulated period of 30 days under Section 30 of the CGST Act is to be held as valid and proper and respondents are to be directed to reconsider the claim of the petitioner for revocation of the cancellation order in accordance with law, subject to payment of outstanding due taxes by the petitioner in accordance with law.
Petition allowed.
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2023 (1) TMI 836
Exemption from GST - forest permit fee - reverse charge mechanism - classifiable under heading 9973 of Notification No. 11/2017 Central Tax (Rate) dated 28th June, 2017 - applicability for lower rate of tax for the period prior to 01-01-2019 - HELD THAT:- The permit charges are charged by forest department to supply permits, these permits are essential for the applicant to move coal mined by them to other places - The forest department collects permit charges and issues permits. This permit enables the applicant to move their mined produce, i.e., coal to other places. Therefore the charges collected are nothing but amount collected by forest department to issue permission to transport the coal.
The supply of permits by forest department is taxable @ 9% SGST and CGST each under SAC code 9991 (Public administration and other services provided to the community as a whole; compulsory social security services) falling under Entry 29 to Notification No: 11/2017 -CT(R), Dt: 28-06-217. More specifically, the said services fall under SAC 999113 (Public administrative services related to the more efficient operation of business). Hence, if the supplier i.e., Forest department is not registered under provisions of GST, the applicant shall pay tax on reverse charge basis as per Entry 5 of Notification No. 13/2017- central Tax (Rate) dated 28-06-2017.
Social forestry is the management of forests for the benefit of local communities. Social forestry includes a range of activities associated with forest management, protection, and afforestation with the objective of rural, environmental, and social well-being - The permit charges collected by forest department is used by the forest officials keep a watch on the mining activity and also to assess the quantity and type of mineral being quarried to carry out survey and also keep constant watch on the movement of the produce , and is not related to Social forestry or farm forestry. Hence, the contention of the applicant that the service provided is in relation to Farm Forestry and social forestry and is exempted from tax as per notification no 12/2017 is untenable.
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2023 (1) TMI 793
Seeking Grant of Regular Bail - availment of fraudulent Input Tax Credit - it was held by High Court that Considering the facts and circumstances of the case, the allegations made against the applicant, the evidence collected by the prosecution, seriousness of the offence the applicant cannot be released on bail.
HELD THAT:- There are no reason to interfere with the order impugned in this petition at this stage.
SLP dismissed.
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2023 (1) TMI 792
Refund of IGST paid - zero rated supply - non-compliance of the provisions of Circular No. 125/44/2019 -GST dated 18.11.2019 - rejection of refund solely on the ground that the refund application has been filed after two years from the relevant date - Section 16(1) (d) of the Integrated Goods and Services Tax, 2017 - HELD THAT:- Hon'ble Apex Court in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (3) TMI 497 - SC ORDER] in respect of the limitation where it was held that in cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021 notwithstanding the actual balance period of limitation remaining all persons shall have limitation period of 90 days from 15.03.2021. In the event the actual balance period of limitation remaining, with effect from 15.03.2021, is greater than 90 days, that longer period shall apply.
The order passed by the respondent no.3 cannot be allowed to stand and the matter deserves to be relegated to the respondent no.2 to decide the appeal on merits - petition allowed in part and part matter on remand.
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2023 (1) TMI 791
Cancellation of GST registration of the petitioner - non-speaking order - violation of principles of natural justice - HELD THAT:- The least, the authority ought to have at least referred to the contents of the show cause and the response thereto, which was not done. Not only the order is non-speaking, but cryptic in nature and the reason of cancellation not decipherable therefrom. Principles of natural justice stand violated and the order needs to be quashed as it entails penal and pecuniary consequences.
The order dated 12/09/2019 passed by the respondent no.2, namely the Joint Commissioner of State Tax, Madhubani, Bihar is quashed with the petitioner’s registration restored, with a further direction to the respondent no.1, namely The State of Bihar through Commissioner of State GST, New Secretariat, Patna to finalize the petitioner’s assessment and/or pass appropriate orders, in accordance with law.
Petition allowed.
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2023 (1) TMI 790
Additional tax liability towards the payment of GST to the Respondents - reduction in the tax rate - requirement of reimbursement of amount to the State Government - HELD THAT:- The present Writ Petition as of now stands disposed of, directing the Respondent Authorities to consider and decide the representation filed by the Petitioner on 6.11.2022, at the earliest, preferably within a period of 90 days. While deciding the representation, the Respondent Authorities shall take into consideration the Order dated 30.9.2022 whereby Clause 2.17.1 stood amended. In addition, the Petitioner would also be at liberty to make a fresh representation along with the supporting documents showing the proof of the additional tax liability incurred by the Petitioner which would facilitate the Respondents in taking a decision.
The Writ Petition stands disposed of.
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2023 (1) TMI 789
Reversal of transitioned tax deducted at source (TDS) under Section 140(1) of TNGST Act - HELD THAT:- The only ground re-argued is that transition is unavailable where credit is not admissible as ITC under this Act as per the proviso to Section 140(1)(i). This very argument has been considered by this Court in paragraph 4 & 5 of order dated 26.02.2021 [2021 (4) TMI 261 - MADRAS HIGH COURT] wherein the provisions of Section 140 along with the proviso have been extracted - That apart, reference has been made to the decision of the Telangana High Court in the case of Magma Fincorp Limited Vs State of Telangana [2019 (5) TMI 786 - TELANGANA AND ANDHRA PRADESH HIGH COURT] that dealt specifically on the interplay between Section 141 and the applicable provisions in the Telangana Goods and Service Tax Act, 2017 that are in para-materia with the relevant provisions under the Tamil Nadu GST Act.
In the present case, it is quite evident that the attempt of the State is to re-agitate the same issue as was raised and considered in the original round of litigation. If at all the Department believes that the conclusion arrived at earlier was contrary to the legal position, then review is not the appropriate remedy - there are no merit in the applications for review and dismiss the same.
Application dismissed.
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2023 (1) TMI 788
Detention of goods alongwith the vehicle - failure to have mentioned the unique Identiy Number/GSTN number of the recipient - HELD THAT:- It is true that Rule 46 require the tax invoice to reflect the GSTN/Unique Identity Number of the recipient. However the said Rule has not taken into account the concept of a bill to – ship to consignment.
The petitioner has made a full disclosure in regard to the purchaser, including the GST particulars, address and PAN number. The prescription under Rule 46 is thus fully satisfied. In addition, the particulars of the consignee are also set out and in my considered and categoric view, this limb of the transaction is not bound by the vigour of the procedure set out under the Act and Rules. It would have been an entirely different matter, had the respondents suspected the transaction as being a method to avoid tax. However, what has transpired is that the respondents have simply lost sight of the bill to – ship to mode of doing business.
The impugned order is set aside and the detained consignment along with cargo ordered to be released forthwith - Petition allowed.
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2023 (1) TMI 787
Validity of impugned assessment order - seeking direction to the respondent to decide on the rectification petition within a time frame to be fixed by this Court - HELD THAT:- In view of the consent view expressed by the learned counsel on either side, this court is inclined to give direction to the respondent to decide the rectification petition filed under Section 84 of the TNVAT Act, 2006 and pass appropriate order on merits and in accordance with law, within a period of twelve weeks from the date of receipt of a copy of this order. Further, this Court directs the respondent not to enforce the assessment order dated 22.08.2022, till the disposal of the rectification petition.
The petition is closed.
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2023 (1) TMI 786
Classification of supply - rate of GST - solar project - supply of goods alongwith services - Aluminium Foil Type Winding Inverter Duty Transformer - parts of Transformer supplied/to be supplied for initial setting up of solar project - recipient of service - classifiable under Chapter Heading 8504 or not - falls under Sr. no. 234 in Schedule-I to Notification No. 01/2017-Central Tax (Rate) dated 28,th June, 2017 or not? - HELD THAT:- The name of M/s Adani Solar Energy Chitrakoot One Limited had never appeared before GAAR as the 'recipient of service' and therefore the contention of the appellant that GAAR has erred in its finding that there is only one recipient of supply, is misleading and far from truth.
The appellant had solely relied and discussed the clauses mentioned in the Technical Specification issued by M/s AGEL in support of their arguments. Since no other documents were produced before GAAR, there are no error found in the findings given by GAAR that there was only one recipient of supply which was M/s AGEL. The Technical Specification issued by M/s. AGEL contains details relating to both supply of goods viz. Aluminium Winding Inverter Duty Transformers and supply of services viz. Supervision of Erection, Testing & Commissioning of Aluminium Foil Type Winding Inverter Duty Transformers.
The signature of the 'Authorized Signatory' appearing on the Purchase Order and Service Order appears to be the same for both M/s AGEL and M/s Adani Solar Energy Chitrakoot One Ltd. The supply in question is a one involving both supply of goods and associated services and are to be supplied by the appellant. From the above discussion, it is found that the supply of goods and the supply of services are single and connected and to be used for the same purpose viz. for supply and effective functioning of the IDT and trouble free operation of Solar Power Plant.
The appellant has been harping on the fact that they had received two separate purchase orders from two distinct entity. It is seen that the purchase order PO No. 4500315135 for the supply of Aluminum Foil Type Winding Inverter duty Transformer along with their parts issued by M/s. AGEL to the appellant is dated 08.11.2019 and the PO No. 5700280769 for supervision of erection, testing and commissioning charges for the Transformer from M/s Adani Solar Energy Chitrakoot One Limited is dated 23.12.2019. Further it is seen that the 'Technical Specification for Aluminum Winding Inverter Duty Transformers bearing No. 5353-E-SEP-EES-TE-S-L 002' bears the date as 15.7.2019 and the same is issued by M/s. AGEL - the aforesaid artificial splitting of the contract into two separate orders being placed by two different entities is merely an afterthought so as to circumvent the explanation inserted in entry No 234 of Notification No 01/2017 CT according to which, of the value of gross consideration 70% shall be deemed to be on account of goods and 30% deemed to be on account of service.
Thus, the activities relating to supply of the transformers and the supervision of the erection, testing and commissioning of the transformers supplied by the appellant are inextricable and for the purpose of supply of transformer which would be used in initial setting up of the Solar Power Plant - the explanation provided is supplier based and not recipient based. Here, on examination of the purchase orders of supply of goods and services and the technical specification for the said supply of goods and services it is found that the supply of goods is made alongwith the supply of services and it therefore fulfills the conditions laid down under the said explanation.
The appellant is liable for payment of GST in terms of Explanation inserted in Entry No. 234, appearing under Schedule-I to Notification No.01/2017- Central Tax (Rate) dated 28.06.2017, vide Notification No. 24/2018-Central Tax (Rate) dated 31.12.2018 and in terms of Serial No. 38 of Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 in respect of services, considering the total value of both the orders i.e. order for supply of goods and order for related supply of services upto 30.09.2021. Thereafter the same will be covered in terms of Explanation inserted in entry Sr.No. 201A appearing under Schedule-II to the Notification No.01/2017-Cental Tax (Rate) dated 28.06.2017 amended vide Notification No. 08/2021-Central Tax (Rate) dated 30.09.2021 w.e.f. 01.10.2021.
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2023 (1) TMI 785
Exemption from GST - HealthCare services or not - Failure to furnish details and documents - lump-sum amount received for Health care Services to be provided for 20 years by the applicant as Diamond Plan - applicability of N/N. 74 of Notification No. 12/2017- Central Tax - HELD THAT:- Health care services provided by a clinical establishment, an authorized medical practitioner or para medics are exempted vide Sl. No. 74 of Notification No. 12/2017-C.T. (Rate), dated 28-6-2017. We find that the term clinical establishment' is defined under clause 2 of the Notification No. 12/2017-CT (Rate) dt.28.6.2017 means a hospital, nursing home, clinic, sanatorium or any other institution by, whatever name called, that offers services or facilities requiring diagnostics or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognized system of medicines in India or a place established as an independent entity or as a part of an establishment to carry out diagnostic or investigative services of diseases.
Diamond Plan of the applicant covered more than 100 types of test, Sleep Study, Foot Scan and Naturopathy, Special health care treatments like Dental & skin care treatment, Privilege card treatment, Priority OPD appointments in tie-up hospital, tele-medical guidance through application. All types of such service provided to the customer under Diamond Plan are required to be examined in detail to decide the nature and characteristic of the service to decide the taxability under GST.
The applicant have also tie up with other hospital in pan India to provide the service mentioned under 'Diamond Plan' but have not submitted any documents in this regard so that we are not in position to know the Scope of Service, types of services to be provided by such Hospital and terms and conditions of the payment. Also the applicant have failed to submit the documents which contains the details of services to be provided under the 'Diamond Plan' to the potential customer. The applicant has not disclosed the correct fact/information in respect of this application therefore, in absence of such documents it is not possible to figure out the services which have mentioned in the application are covered under the Health Care Service or otherwise.
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2023 (1) TMI 784
Seeking grant of bail - Fraudulent availment of ITC - non-existent firms - bail application opposed on the ground of previous involvement and non-cooperative behaviour of the applicant/accused - HELD THAT:- Huge amount of passing of fraudulent ITC through non-existent firms has been alleged against the applicant who is not cooperating in the investigations also. The previous involvement of the accused in similar type of offences is also brought to the notice although which has not been denied by the applicant but submitted that the present case only deals with respect to the said period only for which he has already been granted bail. It has been contradicted by the department by saying that previous case qua the arrest and investigation was upto 2019 whereas investigation in the present case was carried out for subsequent period of time. Non filing of the complaint till date, as averred by the Ld. Defence counsel, is not tenable at this stage.
The present case is not a fit case to grant anticipatory bail to the applicant - The application stands dismissed.
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2023 (1) TMI 733
Detention of vehicle alongwith the goods - refund of amount of tax deposited by the petitioner - stand taken in the counter affidavit filed by the respondents is that the petitioner had failed to furnish any explanation - HELD THAT:- Nothing survives in the present petition at this stage as the order having been passed against the petitioner way back on February 18, 2018, the petitioner had appropriate remedy to challenge the same by filing appeal.
Once demand has been raised against the petitioner after passing of the order by the competent Authority, no question arises for refund of the amount unless the order is set aside - the present petition is dismissed.
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2023 (1) TMI 732
Cancellation of registration of petitioner - non-application of mind - time limitation provided under Section 107(1) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The orders cancelling registration are a serious matter, they impact the registrants, and therefore, the concerned officer should carefully pen down the orders, and not rely on the system generated orders.
In this case, it appears that the order dated 16.09.2019 was framed without due application of mind - those who are willing to be part of the tax regime should be given, as far as possible, an opportunity to do so.
The matter is remitted to the Appellate Authority to examine the same on merits.
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2023 (1) TMI 731
Seeking reopening of portal to file TRAN-1 and TRAN-2 - Transition of unutilized credit in respect of Input Service Distribution (ISD) - HELD THAT:- Since this position was recognized, the prayers made in the writ petition were allowed, not as a matter of concession, but because of the position of law as declared by the judgments referred to in paragraph 4 of M/S HERO MOTOCORP LTD. VERSUS UNION OF INDIA & ORS. [2022 (9) TMI 1409 - DELHI HIGH COURT] where it was held that the issue stands covered by UNICHEM LABORATORIES LIMITED, CASTROL INDIA LIMITED AND ANR. NIVEA INDIA PRIVATE LIMITED, PFIZER LIMITED AND SIEMENS HEALTHCARE PVT. LTD. VERSUS UNION OF INDIA AND 5 ORS [2022 (9) TMI 258 - BOMBAY HIGH COURT], COLGATE PALMOLIVE (I) LIMITED VERSUS UNION OF INDIA & ORS. [2022 (8) TMI 1282 - BOMBAY HIGH COURT] and M/S BODAL CHEMICALS LTD. VERSUS UNION OF INDIA [2022 (2) TMI 846 - GUJARAT HIGH COURT] where it was held that The Hon’ble Apex Court, to aid the assessees to overcome the procedural/technical hurdles, by the order UNION OF INDIA & ANR. VERSUS FILCO TRADE CENTRE PVT. LTD. & ANR. [2022 (7) TMI 1232 - SC ORDER] directed the GST Network to open the common portal to file/rectify TRAN-1 and TRAN-2 for a period of two months, i.e., with effect from 1st September, 2022 to 31st October, 2022 to enable the different private parties to avail Transitional Credit.
Since, we were in agreement with the ratio of those judgments, we allowed the relief prayed for by the writ petitioner.
Petition allowed.
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