TMI Blog2019 (4) TMI 1245X X X X Extracts X X X X X X X X Extracts X X X X ..... econsider the case taking into consideration the case cited - petition disposed off. - W.P.(C) No.17282 of 2018 - - - Dated:- 3-4-2019 - Chief Justice Shri K.S. Jhaveri And Shri Justice K.R. Mohapatra For the Petitioner : Mr. Ravi Raghavan, M/s. Mukesh Panda, L. Sahoo And V. Jena For the Opp. Parties : Mr. T.K. Satapathy (For O.P.No.2) Addl. Government Advocate (For O.P. No.6) ORDER BY THE COURT Heard learned counsel for the parties. 2. By way of this writ petition, the petitioner has challenged the action of the opposite parties in not giving him the credit which he claimed under the new regime of GST. 2.1 The main contention of the petitioner is that the petitioner while putting his Form has committed an error. Instead of 7a-Duties and Taxes on inputs , it has filled 7d-Stock of goods . Although there was incorrect entry in the prescribed format, but the Commissioner, GST Central Excise, Bhubaneswar Commissionerate, vide letter dated 07.06.2018 (Annexure-9) communicated as under: To The Additional Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Your good-self is requested to kindly resolve our problem to get credit of TRAN-1 in electronic ledger. With this reference, we also seek an appointment to meet you for explaining our case. Please provide us date and time to meet you at your earliest convenience. 2.3 Thereafter, petitioner got some assurance vide e-mail dated 28.07.2018 under Annexure-13 from the GST Helpdesk, relevant portion of which is quoted below:- Problem Reported: Wrong ITC was claimed under TRAN-1 Resolution: This is in reference to your query, TRAN- 1 window has been closed because last date for filing TRAN-1 was 27th December 2017 as per government notification. Amendment is also not available on the portal. Request you to update on www.gst.gov.in for further notification. For further concerns regarding GST, please free to contact the GST helpdesk No.(0120-4888999) to visit Grievance Redressal portal https://selfservice.gstsystem.in/ to log a ticket. 2.4 And taking into consideration the facts, the only request, which is made by learned counsel for the petitioner is that in view of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 829221. 7. Counsel for the petitioners would contend that the TRAN-1 declaration was filed within time and attempt was also made before the last dated, i.e. 27.12.2017, to correct a pure typographical error. However, the system did not accept such correction. The petitioners would, thus, lose the entire CENVAT Credit balance of ₹ 1,06,08,998/- 8. It would, prima facie, appear that the extended time for making declaration, which was extended upto 27.12.2017, would take within its fold, any typographical or such other corrections, which may be noted in the declaration already filed. Even otherwise, the case of the petitioners would, perhaps, fall within the situation of the assessee being unable to file correct declaration due to technical glitches on the official portal, for which purpose, the Commissioners are authorized to grant extension upto 31.03.2019. 2.6 High Court of Madras-Madurai Bench, in the case of Tara Exports v. Union of India and others , reported in [2018] 58 GSTR 46 (Mad) observed as under:- ..On a perusal of the judgments/orders relied upon by the petitioner, it is seen that re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the case of MSR Iron and Steel Industries India Private Limited and others v. Joint Commissioner of Sale Taxes, Coimbatore Division, Coimbatore and others, reported in [2018] 58 GSTR 50 (Mad) observed as under:- ..4. The main grievance in all these writ petitions is that the respective writ petitioner is not in a position to take excise duty credit in the stock of goods on the appointment of GST (as on June 30, 2017) in view of certain lack of clarity in the new transition provisions under the GST Act. It is not in dispute that a circular has been already issued on April, 3, 2018 by the Central Board of Indirect Taxes, by setting up a grievance redressal mechanism to address certain grievance of the assesses, which contemplates the appointment of a nodal officer to address the problem faced by the taxpayers due to the problem faced by such people in the GST portal during the transitional period. It is also not in dispute that the Government of Tamil Nadu vide proceeding dated May 18, 2018 already nominated a State level nodal officer to address the problem faced by the tax payers. Therefore, when such grievance redressal mechanism has already been formed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identify the taxpayers who could not complete filing of FORM GST TRAN-1 on the basis electronic audit trail and to provide them facility to complete the filing of FORM GST TRAN-1. 3. In the light of the submission made by the learned counsel for the GST Network, the writ petitions are disposed of directing the GST Network to make appropriate facilities/provisions to enable the petitioners to complete the filing of FORM GST TRAN-1 as directed in circular No.39/13/2018- GST dated 03.04.2018. The petitioners are free to contact the Nodal Officers appointed by the GST Network, the Central and State Governments in terms of the said circular, for follow-up action. 2.9 High Court of Kerala, in the case of M/s. Green Natural Extracts Pvt. Ltd. v. The Assistant Commissioner, CGST and Central Excise, Ernakulam and others, reported in 2018 (8) TMI 1735 observed as under:- The petitioner, a company, registered under the Kerala Value Added Tax Act, has now migrated to the Goods and Services Tax regime. To use the input tax available to its credit at the time of migration, the petitioner had to upload FORM GST TRAN-1 within the stipulated time. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter, if the uploading of FORM GST TRAN-1 is not possible for reasons not attributable to the petitioner, the authority will also enable it to take credit of the input tax available at the time of its migration. With these directions, I disposed of the Writ Petition. 2.10 High Court of Madras, in the case of P. Thirumurthi Chettiar v. State of Madras and another, reported in 1967 SSC Online Mad 66:AIR 1969 Mad 91 : (1968) 21 STC 21 STC 489 observed as under:- The petitioner, who is carrying on business in cotton in Tiruppur filed this writ petition to quash an order dated 16-1-1963 refusing refund of tax paid by him and another order dated 7-7-1964, passed by the Board of Revenue rejecting his application for revision preferred against the order dated 16-1-1963. It is just necessary to state a few facts before I dispose of this writ petition. 2. The matter that led to the filing of this writ petition was an application filed by the petitioner for refund of sales-tax paid by him under the Madras General Sales Tax Act- As the petitioner was carrying on business in cotton, he was assessed under the local Act and the point for levy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nths from the date on which the movement of the goods from this State to any other State commenced. The contention of the learned Counsel for the petitioner is that such period of limitation prescribed in the rule is ultra vires, illegal and not binding on him. In support of this contention, the learned Counsel has cited the decision in Solar Works v. Employees State Insurance Corporation, it was observed by Anantanarayanan, J., (as he then was) which observations will be useful for our purpose, and they are to the effect that where an Act does not provide for limitation with reference to a particular matter and the delegation of the power to make rules is conferred by a section of the Act, which does not, expressly or impliedly relate to the power of prescribing time, the authority to which the power is delegated, viz., the State in this case, cannot make a rule prescribing limitation. This principle has been reiterated and followed by a Bench of this Court in Haji J, A. Kareem Sait v. Dy. Commercial Tax Officer, , where the Bench observed- No doubt limitation is procedural but it is also substantive. A rule covering those matters cannot, therefore, be made unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd and since the petitioner has paid all the taxes due, I hold that the petitioner is entitled to claim refund. 8. In the result the writ petition is allowed. The refund application filed by the petitioner will be taken on file after the delay is excused and they will be disposed of afresh. 9. There will be no order as to costs in this writ petition. 10. Petition allowed. 2.11 High Court of Judicature at Bombay, in the case of O/E/N India Ltd. another v. Union of India others , reported in 2018 VIL 491 Bom. observed as under:- This petition under Article 226 of the Constitution of India, seeks directions to Respondent Nos.1 and 3 to allow Petitioner, to resubmit/ rectify its form TRARN-1 filed under Section 140 of the Goods and Service Tax, 2017 (the Act). 2. This directions is being sought as the Petitioners had by mistake, keyed in in-correct figurers of Cenvat Credit available as on 1st July, 2017, to be utilized under the new GST regime. 3. Respondents have filed an affidavit in reply of Mr. Milind Gawai, Commissioner, Central Tax, Punie-1 Pune dated 23rd Octobe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Column -5 of Table 5(a) but not in Column -6. The electronic credit ledger reflected credit of ₹ 5.89,346/-. The petitioner made several complaints before the Nodal Officer, but the same has not been considered so far. 3. It is hardly required to be stated that the Nodal Officer appointed under the Central Goods Service Tax (CGST) Acts is obligated to consider the complaint of the petitioner and take a decision in the matter. However, the same has not been done, it is imperative for this Court to direct respondent No.7-Nodal Officer to consider the complaint/representation made by the petitioner at Annexure-H and K to the writ petition and take a decision in accordance with law in an expedite manner and is ordered accordingly. 2.13 A decision in the case of Jay Chemical Industries Limited v. Union of India (R/Special Civil Application No.10828 of 2018 disposed of on 11.10.2018) in the High Court of Gujarat at Ahmadabad held as under: 11. Under the circumstances, we do not see any scope for directing the respondents to allow the petitioner to correct the TRAN-1 declaration already made. We may recall, such time limit initi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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