TMI Blog2019 (11) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... ble 5a and instead of which the petitioner had uploaded the details in column 5 of Table 5a due to misunderstanding of the form - It is only when it was noticed by the petitioner that due to inadvertent error, the form had not been correctly filled in, resulting the petitioner being denied input tax to the extent of ₹ 83,99,136/-, that the petitioner sought to revise the form and sought the advice of the department. The petitioner, accordingly, addressed several communications to the respondents in respect of his genuine grievance; however to no avail. In the case of Bhargava Motors v . Union of India [ 2019 (5) TMI 899 - DELHI HIGH COURT ], where the Delhi High Court is satisfied that the Petitioner s difficulty in filling up a correct credit amount in the TRAN-1 form is a genuine one which should not preclude him from having his claim examined by the authorities in accordance with law. Adverting to the facts of the present case, considering the averments made in the affidavit-in-reply filed on behalf of the respondents, it is manifest that it is an admitted position that the petitioner was entitled to credit of ₹ 83,99,136/- in addition to credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ives service of notice of rule on behalf of respondent No . 2 . 2 . Having regard to the controversy involved in the present case and the fact that the court has heard the learned counsel for the respective parties at length, the matter was taken up for final hearing . 3 . By this petition under article 226 of the Constitution of India, the petitioner seeks grant of input tax credit in terms of section 140 of Central Goods and Service Tax Act, 2017 (hereinafter referred to as 'the CGST Act') read with rule 117 of the Central Goods and Service Tax Rules, 2017 (hereinafter referred to as the 'CGST Rules') . 4 . The petitioner is inter alia engaged in manufacture of brass/steel/aluminum electrical wiring accessories, other articles of brass etc . and is registered under the CGST Act . Under the erstwhile Central Excise provisions the petitioner has three Central Excise registrations for its three factories located at Jamnagar . At the time of migration to GST regime, the petitioner had CGST transitional credit to be claimed/transferred to its GST electronic credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the supplier under the provisions of the Central Excise Act . The invoices in respect of such inputs were received by the petitioner after the appointed day . Post the shift to the GST regime, the petitioner was entitled to credit of the said inputs purchased in terms of sub-section (5) of section 140 of the CGST Act . The amount of credit available to the petitioner with respect to such inputs was Rs . 59,123/- . 8 . Similarly, the petitioner also received invoices of input services received for which service tax was already paid by the service providers under the provisions of the Finance Act, 1994 . The invoices in respect of such input service were received by the petitioner after the appointed day and hence, post the shift to the GST regime, the petitioner was entitled to credit of the said input services received in terms of sub-section (5) of section 140 of CGST Act which came to Rs . 2,34,604/- . Thus, the petitioner was entitled to claim credit of Rs . 2,93,727/- in terms of sub-section (5) of section 140 of the CGST Act with respect to inputs and input ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 . It is further the case of the petitioner that it has also placed this issue of filing TRAN-1 form on goods and services tax portal on 4th July, 2018 along with the attachment of letter describing details of its case . The grievance status as reflected on 7th August, 2018 is Resolution under progress . The petitioner, however, did not receive any response from the authorities of the first and second respondents . Being aggrieved by the non-redressal of its grievance due to which the legitimate input tax credit benefit cannot be availed by it, the petitioner has filed the present petition seeking the reliefs noted hereinabove . 14 . Mr . Anand Nainawati, learned advocate for the petitioner, submitted that the petitioner is entitled to carry forward balance cenvat credit available in ER-1/ER-2 in terms of sub-section (1) of section 140 of CGST Act . Referring to the provisions of section 140 of the CGST Act, which to the extent the same are relevant for the present purpose read as under: 140 . Transitional arrangements for input tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd of transitional cenvat credit . Referring to rule 117 of the CGST Rules, it was submitted that from clauses (1), (2) and (3) thereof, it is evident that the registered person has to submit a declaration electronically within ninety days from the appointed day in FORM GST TRAN-1 specifying eligible amount of input credit . Referring to the relevant part of the GST TRAN-1 form, it was submitted that Table 5a of the TRAN- 1 form provides for claiming credit of central taxes (excise and service tax) which have to be carried forward as central tax in GST . In the said table, the assessee is required to mention the excise or service tax registration number and is also required to select the tax period for which the last return is filed and the date of filing the last return . In column 5 of the table, balance amount which was carried forward in the last return has to be specified . In column 6 of the table, out of that amount, the assessee has to mention as to how much amount is admissible as input tax credit in GST as central tax . 14 . 2 Adverting to the facts of the present case, it was submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the present case, FORM GST TRAN-1 was filed under rule 117 of the CGST Rules, thus the period of revision as per rule 120A would be period of filing TRAN-1 form as extended by the Commissioner from time to time . It was submitted that the last date of filing TRAN-1 was 27th December, 2017, which has already elapsed . 14 . 6 It was contended that the time period of ninety days as provided under rules 117(1) and 120A of the CGST Rules is beyond the mandate of section 140 of the CGST Act . According to the learned advocate, sub-section (1) of section 140 of the CGST Act only provides that the Government can prescribe the manner in which the registered person shall be entitled to take, in his electronic credit ledger, the amount of cenvat credit carried forward in the return relating to the period ending with the day immediately preceding the appointed day, furnished by him under the existing law . It was submitted that under section 140 of the CGST Act, the Government can only prescribe the manner in which the registered person is entitled to take, in his electronic credit ledger, the amount of CENVAT credit carri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd . vs . Union of India ( supra), and further observed that the credit standing in favour of an assessee is property and the assessee could not be deprived of the said property save by authority of law in terms of article 300A of the Constitution of India . The court noted that no law was brought to its notice which extinguishes the said right of property of the assessee in the credit standing in their favour and accordingly directed the respondent to either open the online portal so as to enable the petitioner to file the rectified TRAN-1 form electronically, or to accept the same manually with correction on or before 2 . 10 . 2019 . 14 . 10 It was accordingly urged that petition deserves to be allowed and that the respondent be directed to grant input tax credit in terms of section 140 of the CGST Act read with rule 117 of CGST Rules . 15 . On behalf of the respondents, Mr . Nirzar Desai, learned senior standing counsel, submitted that the petitioner seeks to carry forward the transitional credit amounting to Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gued that wide publicity and awareness campaigns were run by the department informing taxpayers regarding filing and revision of declaration . 15 . 3 According to learned senior standing counsel, there is no provision under the CGST Act and rules to revise FORM GST TRAN-1 after the last date of revision i . e . 27th December, 2017 . Hence, the correct filing of details in FORM GST TRAN-1 as per rule 117 of the CGST Rules is a substantial condition/requirement for claiming transitional credit under section 140 of the CGST Act and such credit cannot be claimed in absolute terms . 15 . 4 It was further submitted that the availment of transitional credit is dependent upon fulfillment of the conditions of sub-section (1) of section 140 of the CGST Act read with rules 117 and 120A of the CGST Rules . It was pointed out that the Government had also provided an opportunity to people like the petitioner to revise/correct the FORM GST TRAN-1 in terms of rule 120A of the CGST Rules in case any assessee had made a mistake and filled in wrong figures in the form or mentioned/declared amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been exhausted . Thus, it is due to the apparent mistake on the part of the petitioner, which has resulted in disentitlement to get transitional credit . It was submitted that the claim of input tax credit by the petitioner, although a substantive right, is not an absolute right and that the petitioner having failed to file the correct details within the prescribed time limit, is not entitled to any relief as claimed in the petition . It was accordingly urged that the petition being devoid of merits, deserves to be dismissed . 16 . From the facts as emerging on record, it can be seen that in terms of rule 117 of the CGST Rules, FORM GST TRAN-1 was required to be filed within the prescribed time limit . Such time limit was extended by the Central Government from time to time and was lastly extended till 27th December, 2017 . It is an admitted position that the petitioner had filed the FORM GST TRAN-1 within the time prescribed in the rules . However, as noted hereinabove there was an inadvertent mistake on the part of the petitioner in not mentioning the details of Rs . 83,9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which should not preclude him from having its claim examined by the authorities in accordance with law . A direction is accordingly issued to the Respondents to either open the portal so as to enable the Petitioner to again file TRAN-1 electronically or to accept a manually filed TRAN-1 on or before 31st May, 2019 . The Petitioner's claims will thereafter be processed in accordance with law . 12 . With a view to ensure that in future such glitches can be overcome, the Court directs the Respondents to consider providing in the software itself a facility of the trader/dealer being able to save onto his/her system the filled up form and also a facility for reviewing the form that has been filled up before its submission . It should also permit the dealer to print out the filled up form which will contain the date/time of its submission online . The Respondents will also consider whether there can be a message that pops up by way of an acknowledgement that the Form with the credit claimed has been correctly uploaded . 19 . Following the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority of law in terms of article 300A of the Constitution of India . The court also observed that no law was brought to its notice which extinguishes the said right to property of the assessee in the credit standing in their favour and directed the respondent therein to either open the online portal so as to enable the petitioner to file the rectified TRAN-1 form electronically or to accept the same manually with correction . 21 . Adverting to the facts of the present case, considering the averments made in the affidavitin- reply filed on behalf of the respondents, it is manifest that it is an admitted position that the petitioner was entitled to credit of Rs . 83,99,136/- in addition to credit of Rs . 8,64,055/- (which came to be allowed as it was correctly mentioned) . The only reason for denying credit of such a huge amount of Rs . 83,99,136/- is that the time limit for filing a revised TRAN-1 form has elapsed on 27th December, 2017 . 22 . It may be pertinent to note that the last date of filing the FORM GST TRAN-1 was 27th December, 2017, which was also the las ..... X X X X Extracts X X X X X X X X Extracts X X X X
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