Transitional Credit u/s 140 of GST Act

[THYAGARAJAN KALYANASUNDARAM]

Dear Experts,

One of my client's have forgot to file Tran-1 application within the due date given by the Government. As per the VAT return shows as excess in June 2017 as ₹ 2,00,000/-. Now what is the remedy or loophole to avail the Tran Credit under the GST regime.

Thanks in Advance.

[Himansu Sekhar]

No alternative available

[KASTURI SETHI]

Dear Querist,

CESTAT has held that it is a procedural lapse. Here is a case law which is useful for you. Go through and try to get relief.

2019 (8) TMI 485 - CESTAT BANGALORE RMC READY MIX (INDIA) VERSUS COMMISSIONER OF CENTRAL TAX

 

[Alkesh Jani]

Sir,

Please ensure that refund claim is not time barred.However, the guidance provided by Shri Kasturiji Sir, is very vital in the matter.

Thanks,

With regards

[KASTURI SETHI]

Yes, time-bar is a major hurdle as two year period from the relevant date has already expired.

[THYAGARAJAN KALYANASUNDARAM]

Dear experts,

Is there a possibility of finish the assessment under the erstwhile law and get the refund. Since, no time limit is applicable to get the refund under the TNVAT regime.

[KASTURI SETHI]

You are to get refund under Section 54 of CGST Act and not under TVAT. Section 142 of CGST Act could help you but no revised return has been filed under CGST Act. Case laws are pro-revenue. You cannot hit in the dark. There must be legal basis to file refund claim.

[Ganeshan Kalyani]

Transitional credit are assessed as per GST law. Hence, as said by Sri Kasturi Sir, refund or credit in electronic credit ledger can be taken under GST law.

[Ganeshan Kalyani]

I think you can submit a request with the department as show the credit in GSTR 3B and claim it Since the amount is big an intimation to the department is necessary and this solution seems right.

[Alkesh Jani]

Sir,

I am not sure how much this can help in the matter but finds it important to share:-

In case of M/s. Filco Trade Centre Pvt ltd vs Union of India (Gujarat High Court)-Special Civil Application No 18433 of 2017 = 2018 (9) TMI 885 - GUJARAT HIGH COURT

"31. In the conclusion we hold that though the impugned provision does not make hostile discrimination between similarly situated persons, the same does impose a burden with retrospective effect without any justification.

32.For all these reasons we find that clause (iv) of sub-section (3) of section 140 is unconstitutional. We therefore strike down the same. Petitions are allowed and disposed of.

33. At the request of learned counsel for the Revenue this judgement shall stand stayed upto 31.10.2018."

Thanks

[KASTURI SETHI]

Striking down any section by High Court will not prove bonanza for any person inasmuch as the department will not sit idle. The department has so many legal arrows in its armoury.

[Alkesh Jani]

Dear Sh. Kasturiji Sir,

You are correct, the order of high court is stayed by Hon'ble S.C. I just want to convey that the grounds and decisions will be important of the Hon'ble S.C. so some preparation may help in future.

With Regards

[KASTURI SETHI]

Dear Sh.Alkesh Jani Ji,. I agree with you.

[Ramakrishnan Krishnamurthy]

I think you have to try only legal remedy. It is going to be very tough. The department unlike in the past had given so many advertisement in the news papers about the transitional credit to sensitize the taxable persons to understand the importance. Any ways see the possibility of getting some legal remedy and wish you good luck

[THYAGARAJAN KALYANASUNDARAM]

Dear experts,

The respective client has the letter acknowledgement with the concern assessing authority on or before 27th December 2017 and based on that, if I file a petition before the court for the remedy will that be the chances for getting direction from the court to submit the TRAN-1.

Please advice me.

AI Summary

Transitional credit under GST: missed TRAN 1 filing generally bars transitional credit; legal remedy may require court petition or refund claim. Failing to file TRAN 1 within the prescribed period generally bars transitional input tax credit under GST; claims must be pursued under GST refund/credit mechanisms, with time bar constraints and departmental defences critical; an acknowledgement before the deadline may support a court petition to seek acceptance of a belated TRAN 1, but relief depends on factual and legal basis and existing case law.