TMI Blog2021 (6) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... ted credit which is protected by Article 300A of the Constitution. The lack of an effective revisional mechanism would leave the taxpayers remediless, which, to our minds, could not be the intention of the law, and moreover, no provision was brought to our notice which extinguishes the said right of the taxpayer. For such reasons, the present set of cases are also allowed. All the petitions in the first, second and third batch are allowed - Respondents are directed to either re-open the online portal so as to enable the Petitioners to file TRAN-1 Form electronically, or to accept the same manually on or before 30th June, 2021. - W.P. (C) 1150/2020 & CM APPL. 3814/2020, W.P. (C) 2326/2020 & CM APPL. 8161/2020 & 32784/2020, W.P. (C) 12486/2019, W.P.(C) 1224/2020, W.P.(C) 3759/2020, W.P.(C) 3760/2020, W.P.(C) 3761/2020, W.P.(C) 3766/2020, - - - Dated:- 27-5-2021 - HON'BLE MR. JUSTICE MANMOHAN AND HON'BLE MR. JUSTICE SANJEEV NARULA Petitioner Through: Mr. Mangesh Bhende with Mr. Digajmaan Mishra and Mr. Akshat Malpani, Advocates., Mr. Vinay Gupta, Advocate. Mr. Vineet Bhatia, Advocate Mr. Sandeep Sethi, Sr. Advocate with Mr. Puneet Rai and Mr. Vaibhav Kulkarni, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 3988/2020, W.P.(C) 3996/2020, W.P.(C) 12608/2019, W.P.(C) 1232/2020, W.P.(C) 3690/2020, W.P. (C) 5847/2020, W.P.(C) 3758/2020, W.P.(C) 13680/2019, W.P. (C) 1831/2020 CM APPL.6347/2020, W.P. (C) 7111/2020, W.P. (C) 8583/2020, W.P.(C) 221/2020 CM APPL. 708/2020, W.P.(C) 3658/2020 M/s. The British Motor Car Company (1934) Pvt Ltd., LA Pristine Bioceuticals Pvt. Ltd., S.S. Automotive Pvt. Ltd. Alstone International, ESS AAR Automotive Pvt. Ltd., Shriniwas Tin Industries Pvt. Ltd., Arien Sales Marketing, Rigoss Estate Network PVT. Ltd., Sharda Chemicals, Kalpatru Enterprises Through Its Propritor Neeraj Jain, Balaji Impex, Delhi Watch Marketing Pvt. Ltd. Ultratech Textures Paints Pvt. Ltd. Speego Vehicles Pvt. Ltd., Sumet Prasad Sons, Weldmart International, Priyanjal Electronics, Juniper Hotels Private Limited, HL Promoters Private Ltd. Genext International, U.K Paints (India) Pvt. Limited, Scandia Motorcars Pvt. Ltd. JUDGMENT [VIA VIDEO CONFERENCING] SANJEEV NARULA, J. 1. The common thread in this present batch of petitions is that they pertain to transition of CENVAT credit from the erstwhile indirect tax regime to the present Goods and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hots, correspondence etc. 6. Hence, all the taxpayers could not avail the benefit of this relaxation, and this batch of Petitioners broadly fall in that category. Few of them have digital evidence to support their case but raise the grievance that Respondents have dealt with them in an unfair and arbitrary manner by unreasonably rejecting the proof adduced by them. Some of the taxpayers do not possess evidence like the screenshots to support their case but contend that digital evidence alone should not be the yardstick to test the genuineness of their claims. Others acknowledge that they committed mistakes while filing the TRAN-1 Form as they were not well-versed with the online system and found it cumbersome and complicated and make a plea that they should be afforded another opportunity to claim their legally vested right. The view taken by this Court and other High Courts 7. The difficulties faced by the taxpayers while filing the online TRAN-1 Form, occurring largely on account of the technical glitches, have been noted in a plethora of decisions by both this Court as well as other High Courts. It has been acknowledged that the unutilized input tax credit is a vest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of three years, would be able to take benefit of the judgment and file the requisite TRAN-1 Form. However, the Respondents have assailed the aforesaid decision, and presently, by virtue of the order of the Supreme Court dated 19th June, 2020, the operation of the aforesaid judgment is stayed. 9. We would be remiss to not mention a legislative change which has been brought about, as well. By virtue of the Finance Act, 2020, an amendment has been introduced in the relevant provisions, with retrospective effect from 1st July, 2017, amending Section 140 of the Act by inserting the words within such time . On the strength of this amendment, while dealing with another case relating to filing of TRAN-1 Forms, being SKH Sheet Metal Components v. Union of India (2020) 80 GST 1 (Delhi). the Revenue sought to contend that the ratio of the judgment of Brand Equity (supra) ceases to apply. However, the said argument was rejected. We must also note that when we rendered the decision in SKH Sheet Metal (supra), the SLP filed by the Revenue against the Brand Equity (supra) had not been taken up by the Supreme Court and the stay order referred had not been passed. In this background, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest of completeness, the necessary facts are being culled out hereinbelow- i) W.P.(C.) No. 1150/2020- the Petitioner had a stock of approximately ₹ 3,05,54,086/- on which the Petitioner was entitled to Excise Duty credit of approximately ₹ 14,05,848/- as per the proviso to Section 140(3) of the Act. The Petitioner could not upload the TRAN-1 Form after various attempts due to heavy traffic on the GSTIN portal. Thus, in order to claim the benefit of the excise duty against the stocks held for the period ending on 30 th June, 2017, the Petitioner sought to manually file the TRAN-1 Form. This is evidenced by the communication placed on record dated 27th December, 2017 which is Annexure P-4 to the writ petition. This communication was followed up by a reminder dated 4th February, 2018 written to the VATO, then followed by further communications dated 28th April, 2018 and 8th May, 2018 written to the Jurisdictional/Nodal Officer, SGST/CGST. After the amendment to Rule 117, the Petitioner approached the authority thereunder in terms of sub-Rule (1A) of Rule 117 but, it was to no avail. ii) W.P.(C.) No. 2326/2020- The Petitioner was entitled to a claim of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner, CGST on 19th April, 2018 apprising him of the difficulty faced by the Petitioner in uploading the details in the TRAN-1 Form. The Petitioner has also placed reliance on an order dated 1st August, 2018 whereby this Court, in a batch of petitions, directed that if the claims of any assessee were to be rejected, they must be done vide a speaking order. In pursuance thereto, another representation dated 6th September, 2018 was addressed to the GST Officer, SGST seeking a response to the grievances raised by the Petitioner. The last communication was dated 28th March, 2019 but again, no response was received to the same. iv) W.P.(C.) No. 1224/2020- The Petitioner evaluated that it was in possession of unutilized ITC of ₹ 5,06,555/- on account of Excise Duty on the closing stock of ₹ 25,66,469/- lying on 30th June, 2017. Petitioner had successfully filed the TRAN-1 Form on 26 th December, 2017 and even received an e-mail from the Department of Trade Taxes, Govt. of NCT of Delhi, acknowledging receipt the same, which is annexed to the writ petition as Annexure- 5. The Petitioner addressed its grievance vide letter dated 8th January, 2018 wherein it stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional credit of ₹ 71,32,298/- The Petitioner made attempts to file its TRAN-1 Form prior to 27th December, 2017 but could not do so on account of technical glitches. This is evidenced by the letters written by the Petitioner to the Commissioner, DGST dated 20 th December, 2017 and 26th December, 2017, which are annexed as Annexures P-2 and P-3 to the writ petition, respectively. Further communications were addressed to the Commissioner, DGST on 15th May, 2018 and 5th June, 2020. viii) W.P.(C.) No. 3766/2020 - The Petitioner made attempts to file TRAN-1 Form on and before 27th December, 2017 but was unable to do so due to technical glitches in the GST portal. The Petitioner filed a grievance with the GST Helpdesk on 25th January, 2018 expressing its inability to file TRAN-1 Form. The response to the grievance dated 27th January, 2018 is annexed as Annexure P-2 to the writ petition. Further, the Petitioner has also annexed screenshots of the GST Portal as Annexure P-1. Thereafter, the Petitioner received emails from the GST Helpdesk on 18th March, 2018 and 5th April, 2018 wherein it was stated that the problem had not been resolved till date. Later, the Petitioner ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erly. However, in recognition of technical difficulties being faced by the taxpayers, on recommendations of GST Council in its 26th Meeting held on 10th March, 2018 the ITGRC was put in place vide April Circular to address difficulties faced by the taxpayers on account of technical glitches on the GST Portal. Further, vide notification dated 10th September, 2018, a sub-rule (1A) was inserted in Rule 117 of the Rules to extend the last date for submitting the electronic declaration TRAN-1 Form and TRAN-2 Form not beyond 31st March, 2019 and 30th April, 2019 respectively in respect of registered persons who could not submit the said declaration on account of technical difficulties and in respect of whom the Council has made a recommendation for such extension. Further, sub-rule (1A) of Rule 117 of CGST Rules, 2017 was amended vide notification dated 9 th October, 2019 whereby the last date for submitting declaration electronically in TRAN-1 Form was further extended to 31st December, 2019 in respect of registered persons who could not submit the said declaration by due date on account of technical glitches and in respect of whom the GST Council has made a recommendation for such ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upload the Form GST TRAN-1. They cannot be made to suffer in this background, particularly, when the systems of the Respondents were not efficient. From the documents placed on record, it emanates that the Respondents have no cogent ground to deny the benefit of the Notification No. 49/2019: MANU/CGST/0051/2019 dated 09.10.2019 issued specifically to grant relief to taxpayers who faced difficulty in filing Form GST TRAN-1 due to technical glitches. Thereafter when he engaged in communication with the respondent, there was no genuine ground forthcoming except for stating that the due date for filing of Form GST TRAN-1 was over. 10. We may further add 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 300 (A) of the Constitution of India. There is no law brought to our notice which extinguishes the said right to property of the assessee in the credit standing in their favour. 11. Thus, we allow the present petition and direct the respondents to either open the online portal so as to enable the petitioner to file the Form TRAN-1 electronically, or to accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m to accept the information. After the April Circular, the Petitioner wrote a letter dated 24th March, 2019 to the Assistant Commissioner, Ward-63 apprising them of the inability of the Petitioner to submit the TRAN-1 Form due to technical glitches and requested a resolution of the grievance raised. But, the Petitioner s letter went unanswered and it was constrained to approach this Court. iii) W.P.(C.) No. 3793/2020- The Input Tax Credit available with the Petitioner as on 30th June, 2017 is ₹ 11,65,281/-. The Petitioner was unable to file the TRAN-1 Form before 27th December, 2017 owing to technical failures. Thereafter, the Petitioner addressed a communication to the GST Nodal Officer on 30th January, 2020 raising its complaint and sought the re-opening of the GST Portal. iv) W.P.(C.) No. 3988/2020 and W.P.(C.) No. 3996/2020- The Petitioners tried to file TRAN-1 Form on the GST portal on 21st, 23rd, 24th, 26th and 27th December, 2017, but could not do so because of the technical glitches on the portal which worsened due a lack of technical know-how on part of the Petitioners. Personal visits to the office of Respondent No. 3 also did not help. The phone calls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the TRAN-1 Form but, the same has not been acted upon. viii) W.P.(C.) No. 5847/2020- The Petitioner was unable to upload the TRAN-1 Form before 27th December, 2017 and as a result, wrote a letter to the Commissioner, CGST on 27th February, 2019 entailing its unsuccessful attempt to upload the TRAN-1 Form and seeking relief in the form of permission to submit the TRAN-1 Form. Receiving no response from the Respondent authorities, Petitioner was forced to file a complaint before the CPGRAM Portal grievance cell on 26th March, 2019 which was closed on 10th April, 2019. Thereafter, another grievance was raised before the CPGRAM Portal on 24th June, 2019 which was closed on 10th July, 2019 without redressal. Subsequently, the Petitioner sent email dated 17 th May, 2020 for claim of its transitional credit. In response thereto, the Petitioner received a reply dated 25th June, 2020 stating that the case of the Petitioner has not been accepted. ix) W.P.(C.) No. 3758/2020- The Petitioner was entitled to a transitional credit of ₹ 12,19,713/-. The Petitioner was not able to furnish TRAN-1 Form on account of failure of the system to accept the information on the GST Porta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, 2019, explained the circumstances that prevented the filing of TRAN-1 Form before 27 th December, 2017. The last communication addressed by the Petitioner was dated 22nd March, 2019 wherein the Petitioner provided details of the ticket generated on the grievance raised on the GST Grievance Redressal Portal. B. Contention of Respondents 18. The Respondents in these set of cases have strongly refuted the claims of the Petitioners on the ground that the last date for filing the TRAN-1 Form was 27th December, 2017, and even assuming that the Petitioners grievances were genuine, they have approached the competent statutory authorities at an exceptionally belated stage. Further, the Central Board of Indirect Taxes and Customs vide the April Circular, set up the ITGRC for the very purpose of dealing with the grievances of taxpayers, but all the Petitioners in this batch raised grievances much after 3rd April, 2018 which is a clear indication of the Petitioners negligence and carelessness in seeking redressal. The ITGRC duly checks the genuineness of the screenshots and verifies whether the taxpayer actually tried to file TRAN-1 Form or not. Those taxpayers who had genuine g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are similar to those in another judgment, to which one of us (Sanjeev Narula J.) was a party. In that case, i.e., National Internet Exchange of India v. Union of India Ors. MANU/DE/0242/2021, the Petitioner had missed out on certain invoices pertaining to inputs and input services on which service tax was paid, while filing the TRAN-1 Form. The Petitioner therein approached the competent authorities, but no action was taken and was thus, constrained to file a writ petition. This Court, while allowing the writ petition, held that- 8. On perusal of the record, it emerges that Petitioner has filed TRAN-1 form within the time prescribed by the Respondents under the rules. Petitioner is holding documents evidencing payment of tax by it on such inputs / input services received under the erstwhile tax regime. It is thus eligible to carry forward the credit from erstwhile tax regime to the GST regime under Section 140 of the CGST Act read with Rule 117 of CGST Rules. Petitioner claims that this error has occurred because of the introduction of new and vastly different tax regime (GST) of which the Petitioner had no prior experience whatsoever, and thus it was new to the fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner was eligible to carry forward CENVAT credit amounting to ₹ 4,56,30,842. The Petitioner however, due to lack of knowledge about the newly introduced statute, while filing the TRAN-l Form for transfer of credit of pre-GST regime into the GST regime, mistakenly filled in Nil under CENVAT credit admissible as input tax credit under Table 5 of the TRAN-1 Form. As a result, the service tax credit, that is the input tax credit of the pre-GST regime, could not be transferred to the credit ledger of the Petitioner even though TRAN-1 Form was filed. The Petitioner was constrained to approach the Superintendent, GST by a letter dated 22nd March, 2019 praying for the opportunity to revise the TRAN-1 Form so that the Petitioner could avail the benefit of input tax credit. Reminder letters were also sent on 17th September, 2019 and 13th August, 2020 but, to no avail. iii) W.P.(C.) No. 221/2020- While filing the TRAN-1 Form on 31 st October, 2017, the Petitioner inadvertently missed out on mentioning the CENVAT credit amounting to ₹ 39,11,565/-. The Petitioner wrote a detailed letter dated 16th January, 2019 to the Commissioner, CGST, intimating them about the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from claiming their transitional credit on account of inadvertent error on their part due to filling in of wrong details or omissions. In the opinion of this Court, a genuine mistake should not result in the Petitioners losing out on their accumulated credit which is protected by Article 300A of the Constitution. The lack of an effective revisional mechanism would leave the taxpayers remediless, which, to our minds, could not be the intention of the law, and moreover, no provision was brought to our notice which extinguishes the said right of the taxpayer. For such reasons, the present set of cases are also allowed. 27. It is noted that similar relief has been granted by this Court in several decisions including Blue Bird Pure Pvt. Ltd. v. Union of India and Ors., 2019[29] G.S.T.L. 660, Pending SLP (Union of India Ors. v. M/s Blue Bird Pure Pvt. Ltd., SLP(C.) No. 4916/2020) Aadinath Industries and Ors. v. Union of India 2019[30] G.S.T.L. 478, and Aagman Services Private Limited v. Union of India and Ors. (2020) 77 GST 530 (Delhi) SLP Dismissed, (Nodal Officer Delhi State GST Department v. Aagman Services Private Limited Ors., Diary No. 22386/2020) In the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s v. Union of India and Ors., (2020) 78 GSTR 421 (Delhi); Aagman Services Private Limited v. Union of India and Ors., (2020) 77 GST 530 (Delhi); Vertiv Energy Pvt. Ltd. v. Union of India, (2020) 79 GSTR 4 (Delhi); Lease Plan India Private Limited v. GNCTD and Ors., (2020) 72 GSTR 116 (Delhi); Uninav Developers Pvt. Ltd. v. Union of India and Ors., MANU/DE/4665/2019; Godrej Boyce Mfg. Co. Ltd. v. Union of India and Ors., (2020) 73 GSTR 107 (Delhi); Adfert Technologies Pvt. Ltd. and Ors. v. Union of India and Ors., (2020) 73 GSTR 267 (P H); Jakap Metind Pvt. Ltd. v. Union of India, 2019 (31) G.S.T.L. 422; Siddharth Enterprises v. Nodal Officer, 2019 (29) G.S.T.L. 664; Krishna Oleo Chemical India Limited v. Union of India, (2020) 80 GST 158 (Gujarat); Heritage Lifestyles and Developers Pvt Ltd v. The Union of India and Ors., 2020 (43) G.S.T.L. 33. 3. Union of India v. Chogori India Retail Limite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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