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Another opportunity to avail transitional credits by 30th June, 2020

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Another opportunity to avail transitional credits by 30th June, 2020
By: Kushal Mishra
May 8, 2020
All Articles by: Kushal Mishra       View Profile
  • Contents

BRAND EQUITY TREATIES LIMITED, MICROMAX INFORMATICS LTD., DEVELOPER GROUP INDIA PRIVATE LIMITED, RELIANCE ELEKTRIK WORKS VERSUS THE UNION OF INDIA AND ORS. [2020 (5) TMI 171 - DELHI HIGH COURT]

Detail of Case

Petitioner

  1. W.P.(C) 11040/2018 and C.M. No. 42982/2018 BRAND EQUITY TREATIES LIMITED.
  2. W.P.(C) 196/2019& CM APPL. 965/2019 MICROMAX INFORMATICS LTD.
  3. W.P.(C) 8496/2019 DEVELOPER GROUP INDIA PRIVATE LIMITED.
  4. W.P.(C) 13203/2019 RELIANCE ELEKTRIK WORKS.

versus

Respondents: - UNION OF INDIA & ORS.

Commentary from KSMC

Courts before this judgement has primarily decided the cases which were filed due to non-submission / non-filing of Tran-1, where the delay had been occasioned on account of technical glitches in the Goods and Services Tax Network (GSTN) and wherein the dealers were supposed to show proofs their efforts of logging into the GSTN network or system and failing thereby.

This case has given wide meaning to the term technical glitches itself where court has said that “the phrase “technical difficulty” is being given a restrictive meaning…. And It would be an erroneous approach to attach undue importance to the concept of “technical glitch” only to that which occurs on the GST Common portal, as a pre-condition, for an assessee / tax payer to be granted the benefit of Sub- Rule (1A) of Rule 117.

Court has widely shown their non-concurrence on narrow interpretation of word technical glitches, stating “We, however, do not concur with this understanding. “Technical difficulty” is too broad a term and cannot have a narrow interpretation, or application.”

Court has truly admitted and showed that the transition into new tax regime is not smooth at all, and making law which takes away the vested right of the person is like robbing a right “on an unreasonable and unfounded basis of them not having filed TRAN-1 Form within 90 days”

Court has expressed following thought for all dealers who were not able to file form Tran-1 that “It is very unfair on the part of the respondents, in these circumstances, to expect that the taxpayers should have been fully geared to deal with the new system on day-one, when they themselves were completely ill-prepared, which led to creation of a complete mess.”

This judgement has not limited the effect of the judgement on the petitioner’s but has widened the scope of benefit to all the dealers who are in same or in identical situation and has not been able to file Tran-1 till date. Court has simply decided the date on the basis of law limitation where the court has held that “in terms of the residuary provisions of the Limitation Act, the period of three years should be the guiding principle and thus a period of three years from the appointed date would be the maximum period for availing of such credit.

“Since the cause for not filing the TRAN-1 Form within time is sufficiently explained and justified, we see no good ground or reason to deny the petitioners another opportunity to belatedly file their TRAN-1 forms”- Delhi High Court

Court has also directed the respondents to publicise this judgment widely including by way of publishing the same on their website so that others who may not have been able to file TRAN-1 till date are permitted to do so on or before 30.06.2020.

Pointwise precise judgement of case

  • Court has permitted to file relevant TRAN-1 Form on or before 30.06.2020. Respondents are directed to either open the online portal so as to enable the Petitioners to file declaration TRAN-1 electronically, or to accept the same manually.
  • Court have no hesitation in reading down the said provision [ Rule 117] as being directory in nature, insofar as it prescribes the time-limit for transitioning of credit and therefore, the same would not result in the forfeiture of the rights, in case the credit is not availed within the period prescribed. This however, does not mean that the availing of CENVAT credit can be in perpetuity.
  • In absence of specific provision in act regarding availability of Tran-1 credit, court has hold Limitation Act residual provision as the guiding factor to determine “the period of three years from the appointed date would be the maximum period for availing of such credit.

Facts of the Case

The facts of the instant cases are substantially distinguishable, and do not indicate or allege any such error or glitch on the network of the respondents relating to the filing of the TRAN-1 forms but arose owing to other technical difficulties at the end of the assessees i.e. the petitioners.

Case presented by the petitioners can be covered widely under three categories: -

  1. Non filing of Tran-1 [Considering credit to be carried forward can be taken as refund u/s 140(5)]
  2. Filed declaration in Tran-1 but credit was inadvertently not carried forward in the declaration filed by the petitioner.
  3. Tried filing declaration in Tran-1 but was not able to file due to error in the system of the respondents.

Analysis of Case at Court and Facts Discussed

  1. Time limit of filing Tran-1 has been extended several times; however, on account of several factors - predominantly being inadequacies in the network of the respondents, which failed to meet the expectations and serve the needs of taxpayers.
  2. Scores of complaints were made on the portal and it was also brought to the notice of the government. The technical difficulties faced by the taxpayer were acknowledged and an IT Grievance Redressal Committee was constituted and assigned the task of redressing the grievance of the taxpayers.
  3. On account of technical difficulties, the taxpayers were indeed unable to file the statutory form within time and CBIC vide notifications issued from time to time, extended the date prescribed for filing of Form GST TRAN-1 under Rule 117 (1A) of the CGST Rules.

Insertion of Rule 117 (1A) demonstrates that the respondents recognize the fact that the registered persons were not able to upload GST TRAN-1 due to technical difficulties on the common portal. This also substantiates that the period for filing the TRAN-1 is not considered – either by the legislature, or the executive as sacrosanct or mandatory.

  1. There were bonafide errors on the part of the taxpayer and in others, the difficulty arose on account of lack of understanding of the complete overhaul of the indirect tax system; or complicated filing procedure and the statutory forms resulting in erroneous information being stated therein.
  2. The benchmark, in our view, is that the online system brought into force by the GSTN Ltd. should be able to perform all functions and should have all flexibilities/options, which were available in the pre-GST regime. The problems on the GSTN cannot be wished away, and have to be resolved in the right earnest. This requires sensitivity on the part of the Government which has, unfortunately, not been exhibited in adequate measure.
  3. Are the facts before us such, as to deny the petitioners the relief extended to taxpayers covered by the category of “technical glitches or technical difficulties”? The facts of each case enumerated above indicate that the petitioners have, either, not been vigilant of the timelines, or have been victims of the chaos and confusion that was prevailing at the time when the GST regime was introduced.

 As a result, Petitioners may not have concrete evidence in their hand to convincingly    exhibit that they faced a technical issue on the GSTN portal while uploading the declaration in GST TRAN-1. (AB Pal Electricals Pvt. Ltd. vs. Union of India in W.P.(C) 6537/2019 - 2019 (12) TMI 1002 - DELHI HIGH COURT)

  1. Whether the Government could curtail the accrued and vested right, and restrict it to 90 days by a subordinate legislation?

The provisions of the Service Tax under Chapter V of the Finance Act stood repealed by virtue of the GST legislation as provided under Section 174 of the CGST Act. Thus, on the appointed date, the credits which existed under the previous regime were required to be transitioned to the new regime.

  1. On enactment of the CGST Act, no mechanism was provided for the refund of the credit that existed on the said date. The only mechanism was for utilization of such credit by migrating the same to the GST regime by way of filing declaration Form TRAN-1. Evidently, there is no other provision in the Act prescribing time limit for the transition of the CENVAT credit, and the same has been introduced only by way of Rule 117.
  2. It is not as if the Act completely restricts the transition of CENVAT credit in the GST regime by a particular date, and there is no rationale for curtailing the said period, except under the law of limitations. The period of 90 days has no rationale and as noted above, extensions have been granted by the Government from time to time, largely on account of its inefficient network.
  3. In above noted circumstances, the arbitrary classification, introduced by way of sub Rule (1A), restricting the benefit only to taxpayers whose cases are covered by “technical difficulties on common portal” subject to recommendations of the GST Council, is arbitrary, vague and unreasonable.
  4. Technical difficulties cannot be restricted only to a difficulty faced by or on the part of the respondent. It would include within its purview any such technical difficulties faced by the taxpayers as well, which could also be a result of the respondent’s follies.
  5. Just like the respondents, even the taxpayers required time to adapt to the new systems, which was introduced as a completely online system. Apart from the shortcomings in the system developed by GSTN Ltd., the assessees also faced the challenges posed by low bandwidth and lack of computer knowledge and skill to operate the system.
  6. It is very unfair on the part of the respondents, in these circumstances, to expect that the taxpayers should have been fully geared to deal with the new system on day-one, when they themselves were completely ill-prepared, which led to creation of a complete mess.
  7. Conscious of the circumstances that are prevailing, we feel that taxpayers cannot be robbed of their valuable rights on an unreasonable and unfounded basis of them not having filed TRAN-1 Form within 90 days, when civil rights can be enforced within a period of three years from the date of commencement of limitation under the Limitation Act, 1963.
  8. The introduction of Sub rule (1A) in Rule 117 is a patchwork solution that does not recognise the entirety of the situation. This exception, as worded, is an artificial construction of technical difficulties, limiting it to those existing on the common portal. It is unfair to create this distinction and restrict it to technical snags alone.
  9. In our view, there could be various different types of technical difficulties occurring on the common portal which may not be solely on account of the failure to upload the form. The access to the GST portal could be hindered for myriad reasons, sometimes not resulting in the creation of a GST log-in record. Further, the difficulties may also be offline, as a result of several other restrictive factors.

It would be an erroneous approach to attach undue importance to the concept of “technical glitch” only to that which occurs on the GST Common portal, as a pre-condition, for an assessee / tax payer to be granted the benefit of Sub- Rule (1A) of Rule 117.

  1.  The approach of the Government should be fair and reasonable. It cannot be arbitrary or discriminatory, if it has to pass the muster of Article 14 of the Constitution. The government cannot turn a blind eye, as if there were no errors on the GSTN portal. It cannot adopt different yardsticks while evaluating the conduct of the taxpayers, and its own conduct, acts and omissions.
  2. The legislature has recognized such existing rights and has protected the same by allowing migration thereof in the new regime under the aforesaid provision. In order to avail the benefit, no restriction has been put under any provisions of the Act in terms of the time period for transition. The time limit prescribed for availing the input tax credit with respect to the purchase of goods and services made in the pre-GST regime, cannot be discriminatory and unreasonable. There has to be a rationale forthcoming and, in absence thereof, it would be violative of Article 14 of the Constitution.
  3. Further, we are also of the view that the CENVAT credit which stood accrued and vested is the property of the assessee, and is a constitutional right under Article 300A of the Constitution. The same cannot be taken away merely by way of delegated legislation by framing rules, without there being any overarching provision in the GST Act.
  4. we also find merit in the submissions of the petitioners that Rule 117, whereby the mechanism for availing the credits has been prescribed, is procedural and directory, and cannot affect the substantive right of the registered taxpayer to avail of the existing / accrued and vested CENVAT credit.
  5. The limitation on the right to carry forward the CENVAT credit is substantively provided by the proviso to the said section. Those are the only limitations on the said statutory right. Under the garb of framing Rules – which are subordinate legislation, the width of those limitations could not have been expanded as is sought to be done by introduction of Rule (1A). In absence of any consequence being provided under Section 140, to the delayed filing of TRAN-1 Form, Rule 117 has to be read and understood as directory and not mandatory.
  6. We, therefore, have no hesitation in reading down the said provision [ Rule 117] as being directory in nature, insofar as it prescribes the time-limit for transitioning of credit and therefore, the same would not result in the forfeiture of the rights, in case the credit is not availed within the period prescribed.
  7. This however, does not mean that the availing of CENVAT credit can be in perpetuity. Transitory provisions, as the word indicates, have to be given its due meaning.
  8. Transition from pre-GST Regime to GST Regime has not been smooth and therefore, what was reasonable in ideal circumstances is not in the current situation. In absence of any specific provisions under the Act, we would have to hold that in terms of the residuary provisions of the Limitation Act, the period of three years should be the guiding principle and thus a period of three years from the appointed date would be the maximum period for availing of such credit.
  9. Accordingly, since all the Petitioners have filed or attempted to file Form TRAN-1 within the aforesaid period of three years they shall be entitled to avail the Input Tax Credit accruing to them. They are thus, permitted to file relevant TRAN-1 Form on or before 30.06.2020. Respondents are directed to either open the online portal so as to enable the Petitioners to file declaration TRAN-1 electronically, or to accept the same manually.
  10. Respondents shall there after process the claims in accordance with law. We are also of the opinion that other taxpayers who are similarly situated should also be entitled to avail the benefit of this judgment. Therefore, Respondents are directed to publicise this judgment widely including by way of publishing the same on their website so that others who may not have been able to file TRAN-1 till date are permitted to do so on or before 30.06.2020.

 

By: Kushal Mishra - May 8, 2020

 

Discussions to this article

 

Sir,

1. This judgment was reserved on 2.3.2020 & Pronounced on 2.5.2020. The retrospective amendments to S.140, regularising Rule 117 in tune with the Act were carried out on 27.3.2020. What are your views on Reading down Rule 117 by the court after retrospective amendments to S.140.

2. What are your views on the contrary judgment of Nelco Limited v. Union of India (2020) 33 J.K.Jain’s GST & VR 257 (Bom) delivered on 20.3.2020 = 2020 (3) TMI 1087 - BOMBAY HIGH COURT.

CA Om Prakash Jain, Jaipur, 9414300730, opjain02@yahoo.co.in

By: OmPrakash jain
Dated: 08/05/2020

Respected Sir,

Unfortunately the judgement mentioned by you i.e. Nelco Limited v. Union of India (2020) 33 J.K.Jain’s GST & VR 257 (Bom) delivered on 20.3.2020 = 2020 (3) TMI 1087 - BOMBAY HIGH COURT is contrary to the Judgement of Delhi High Court in case of BRAND EQUITY TREATIES LIMITED, MICROMAX INFORMATICS LTD., DEVELOPER GROUP INDIA PRIVATE LIMITED, RELIANCE ELEKTRIK WORKS VERSUS THE UNION OF INDIA AND ORS. [2020 (5) TMI 171 - DELHI HIGH COURT].

My take from the concluding para of the judgement of case refer later above is that it will be applicable for the all the dealer who all are in similar or identical situation as instructed by High Court itself.

By: Kushal Mishra
Dated: 10/05/2020

Sir,

After the retrospective amendments in S.140 w.e.f. 27.3.2020 by inserting the words “within such time and”, whether the time limit prescribed under he Limitation Act will prevail ? Will it not be against the provisions of the GST Act retrospective amendments in S.140?

CA Om Prakash Jain, Jaipur, 9414300730, opjain02@yahoo.co.in

By: OmPrakash jain
Dated: 11/05/2020

 

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