AI Drafter 
TaxTMI 
TaxTMI 
2021 (9) TMI 1042
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....ingh, learned Additional Solicitor General of India, assisted by Mr Sudarshan Singh, Mr Krishna Ji Shukla, Mr Anant Kumar Tiwari, Mr Rajesh Tripathi, Mr Ishan Shishu and Mr Manoj Kumar Singh for the Union of India and; Mr Ramesh Chandra Shukla, Mr Ashok Singh, Mr Parv Agarwal, Mr Dhananjai Awasthi, Mr Krishna Agarwal, Mr Gaurav Mahajan, Mr Amit Mahajan, Mr Ankur Agarwal and Mr B.K. Singh Raghuvanshi, for the CGST authorities. 2. This batch of writ petitions has been filed seeking relief in the nature of mandamus commanding the respondent authorities to allow the petitioners to submit/revise/re-revise electronically, their respective declarations on Form GST TRAN-1 and GST TRAN-2, under the provisions of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the 'CGST Act') and, the Uttar Pradesh Goods and Services Tax Act, 2017 (hereinafter referred to as the 'UPGST Act'), to carry forward the CENVAT and VAT Input Tax Credit, under the CGST Act , 2017 and the U.P. GST Act, 2017. No other relief has been pressed at the hearing. 3. On facts, broadly there are three types of cases. First, some of the petitioners claim, they had submitted electronically, the For....
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.... 27.12.2017 - - 4 630 /2018 - 3,69,552 - To be verified 27.12.2017 - - 5 694 /2018 1,49,922 - 1,46,415 6.7.2017 27.12.2017 - - 6 702 /2018 27,76,000 - - To be verified 27.12.2017 - - 7 720 /2018 - - 4,43,479 28.9.2017 27.12.2017 - - 8 721 /2018 - - 4,18,067 28.9.2017 27.12.2017 - - 9 727 /2018 1,68,41,568 - - To be verified - 27.12.2017 28.12.2017 10 736 /2018 75,18,296 - - To be verified December 2017 - - 11 774 /2018 23,75,831.65 - 2,35,81,098 To be verified 26.10.2017 26.10.2017 27.12.2017 12 792 /2018 11,44,322 Claiming only CENVAT 11,44,322 Claiming only CENVAT 26.12.2017 27.12.2017 - 13 800 /2018 1,49,922 - 1,46,415 6.7.2017 27.12.2017 - - 14 802 /2018 - - 4,81,445 To be verified 27.12.2017 - - 15 807 /2018 22,06,927 - - To be verified 27.12.2017 - - 16 823 /2018 - - 20,15,902 To be verified 27.12.2017 - - 17 829 /2018....
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.... - - 43 1370/2018 - 2,62,877 - VAT 20.7.2017 27.12.2017 - - 44 2/2019 6,93,914 - - To be verified 27.12.20147 27.12.2017 - 45 119/2019 - 1075302 - To be verified 27.12.2017 27.12.2017 - 46 361/2019 1,81,000 - - 08.07.2017 Before and After 27.12.2017 - - 47 363/2019 3,50,000 - To be verified - 25.12.2017 After 27.12.2017 48 394/2019 - - 54,675 17.7.2017 27.12.2017 - - 49 401/2019 10,00,223 - - To be verified 9.7.17 7.12.17 - - 50 405/2019 - 48,45,262 - To be verified 15.8.17 - - 51 406/2019 28,99,287 - - 15.8.17 27.12.17 - - 52 407/2019 - - 2,04,806 To be verified 27.12.17 - - 53 408/2019 - - 2,65,120 To be verified 27.12.17 - - 54 409/2019 - - 11,35,153 To be verified 31.8.2017 December 2017 - 55 411/2019 8,25,373/- - 2,66,224 VAT 21-7-2017 ER-1 10-7-2017 27-12-2017 9-1-2020 - 56 541/2019 5,10,153 4,33,761 - V....
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....turn under the Central Excise Act, 1944 on Form ER-1, on 13.07.2017 for the period ending 30.06.2017, disclosing total CENVAT credit available Rs. 52,54,954/-. Also, it submitted electronically its Form GST TRAN-1, for the period ending 30.06.2017, within time granted. Inadvertently, it submitted the figure Rs. 50,702/- as admissible CENVAT in place of the actual entitlement figure Rs. 52,54,954/-. The Form GST TRAN-1 containing the aforesaid error was submitted electronically on 13.07.2017 on the GST portal. Despite best efforts, the petitioner could not submit electronically the revised Form GST TRAN-1 before the cut-off date 27.12.2017 as that function on the GST portal had not been activated or not made fully functional. Besides making unsuccessful attempts to revise the Form GST TRAN-1, manually, the petitioner further claims to have written to the Principal Commissioner CGST on 10.9.2020 and 12.2.2021 to verify the correct amount of ITC available to it and to resolve the issue in favour of the petitioner. Vide communication dated 15.3.2021, the Principal Commissioner CGST refused that resolution since the petitioner's request was received on 26.05.2020, after expiry of the la....
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....44; The Finance Act, 1994 and; The Uttar Pradesh VAT Act, 2008, stood saved under the CGST Act and the UPGST Act. That substantive right could not be defeated by the procedural law framed and enforced by the delegate of the legislature i.e. the Central Government and the State Government. 9. Alternatively, reliance has been placed on Rule 117 of the Central Goods and Services Tax Rules, 2017 (hereinafter referred to as the 'CGST Rules') read with Rule 117 of the Uttar Pradesh Goods and Services Tax Rules, 2017 (hereinafter referred to as the 'UPGST Rules') read with Sections 168 and 168A of the CGST Act, to submit - in any case, the time to submit electronically, Form GST TRAN-1 existed up to 31.08.2020 in view of Order no.1 of 2020 issued by the Principal Commissioner GST under Rule 117(1)(a) of the CGST Rules read with notification no. 35 of 2020 read with notification no. 55 of 2020 dated 26.06.2020, both issued under Section 168A of the CGST Act by the CBIC dated 03.04.2020. These orders and notifications have been referred to in conjunction with the statutory provisions whereunder they were issued - to establish the procedural requirement to submit or revise electronically,....
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....utive authorities acted in a manner that was unmindful of the inherent difficulties and challenges faced by the vital stake holders i.e., the "registered persons"/taxpayers and tax professionals and tax authorities. Third all such "registered persons"/taxpayers and tax professionals had not migrated to online or digitized platform, before 30.06.2017. Fourth, the newly devised GST Portal was hurriedly activated, leading to multiple teething as also genuine technical and other difficulties faced by all including the CGST & UPGST authorities. Since the existence of such technical and other difficulties and glitches is admitted or indisputably established, no further burden exists on the individual "registered person"/taxpayer/petitioner to establish the extent of difficulty faced by each such person or to establish strict proof that the Form GST TRAN-1 and/or TRAN-2 could not be submitted or revised or re-revised electronically, for reason of that difficulty. 12. Shri Shubham Agarwal (in Writ Tax No. 477 of 2021) has placed reliance on the decisions of the Delhi High Court in R.R. Distributors Pvt. Ltd. Vs. Commissioner of Central Tax, GST, Delhi North & Anr., WP (C) No. 4143/2020,....
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....le to such persons, by looking at their returns filed under the Central Excise Act and/or the Service Tax law and/or the UP VAT Act, 2007, for the period ended 30.06.2017. So long as that/those return/s may be found to have been filed within time and so long as there is nothing to doubt the correctness of the CENVAT or ITC disclosed in that/those return/s, the authority would have to allow such "registered person" the benefit of the ITC under the CGST Act and the UPGST Act, accordingly. In that regard, he has relied upon a decision of the Supreme Court in Commissioner of Income Tax, Delhi Vs. Mahalaxmi Sugar Mills Co. Ltd., (1986) 3 SCC 544. 14. He would further submit, there is a difference between the act of revision and correction in a return. By revision, a "registered person" may change the nature and character of the disclosures made in the original return. However, by a simple correction in its return, the "registered person" only corrects the disclosure made in Table no.7(a) and 7(d) of the Form GST TRAN-1. It would relate back to the original form submitted by the petitioner. He has relied upon the decision of the Delhi High Court in SKH Sheet Metal Components Vs. Union....
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....cribing the Form GST TRAN-1. 19. Shri Manish Goyal, learned Additional Advocate General has relied on the language of Section 140 of the CGST Act to submit, no vested right ever accrued to the petitioners to avail ITC under the CGST or UPGST Act. The transition ITC was only a concession granted. It could be availed only in the event of Form GST TRAN-1 being submitted electronically within time and in the manner prescribed by the Rules framed under the CGST Act. Since some of the petitioners did not submit their original or revised Form GST TRAN-1, electronically, within the time and in manner prescribed, no right to carry forward ITC, as on 30.06.2017 ever accrued to them. Such of the petitioners who could file their Form GST TRAN-1 but did not revise or re-revise it within time granted, cannot complain as they would be allowed ITC up to the limit of the disclosure made by them in their original Form GST TRAN-1. To bolster that submission, learned Additional Advocate General has referred to the provisions of Section 140 of the CGST Act together with all its sub-sections, to highlight the different contingencies contemplated under each of the sub-section. 20. He has further su....
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....rcumstances, namely:- (i) where the said amount of credit is not admissible as input tax credit under this Act; or (ii) where he has not furnished all the returns required under the existing law for the period of six months immediately preceding the appointed date; or (iii) where the said amount of credit relates to goods manufactured and cleared under such exemption notifications as are notified by the Government. (2) A registered person, other than a person opting to pay tax under section 10, shall be entitled to take, in his electronic credit ledger, credit of the unavailed CENVAT credit in respect of capital goods, not carried forward in a return, furnished under the existing law by him, for the period ending with the day immediately preceding the appointed day within such time and in such manner as may be prescribed: Provided that the registered person shall not be allowed to take credit unless the said credit was admissible as CENVAT credit under the existing law and is also admissible as input tax credit under this Act. Explanation: For the purposes of this sub-section, the expression "unavailed CENVAT credit" means the a....
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....n of taxable as well as exempted services under Chapter V of the Finance Act, 1994, but which are liable to tax under this Act, shall be entitled to take, in his electronic credit ledger,- (a) the amount of CENVAT credit carried forward in a return furnished under the existing law by him in accordance with the provisions of sub-section (1); and (b) the amount of CENVAT credit of eligible duties in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock on the appointed day, relating to such exempted goods or services, in accordance with the provisions of sub-section (3). (5) A registered person shall be entitled to take, in his electronic credit ledger, credit of eligible duties and taxes in respect of inputs or input services received on or after the appointed day but the duty or tax in respect of which has been paid by the supplier under the existing law existing law, within such time and in such manner as may be prescribed subject to the condition that the invoice or any other duty or tax paying document of the same was recorded in the books of account of such person within a period of thirty days from the ....
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....: Provided that if the registered person furnishes his return for the period ending with the day immediately preceding the appointed day within three months of the appointed day, such credit shall be allowed subject to the condition that the said return is either an original return or a revised return where the credit has been reduced from that claimed earlier: Provided further that the registered person shall not be allowed to take credit unless the said amount is admissible as input tax credit under this Act: Provided also that such credit may be transferred to any of the registered persons having the same Permanent Account Number for which the centralised registration was obtained under the existing law. (9) Where any CENVAT credit availed for the input services provided under the existing law has been reversed due to non-payment of the consideration within a period of three months, such credit can be reclaimed subject to credit can be reclaimed within such time and in such manner as may be prescribed, subject to the condition that the registered person has made the payment of the consideration for that supply of services within a period of th....
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....ection 3 of the Customs Tariff Act, 1975." 23. In the first place, as rightly claimed by the Additional Advocate General, Section 140 of the CGST Act & UPGST Act is a transition provision. It was incorporated to cater to the special circumstances arising upon replacement of the pre-existing plural indirect tax regime, by a singular indirect tax regime. Transactions had been performed under the pre-existing laws and tax paid thereon. Such transactions gave rise to CENVAT and ITC under the pre-existing laws. The legislature did not intend to nullify those credits earned under the pre-existing laws, rather, it intended to transition those credits to the GST regime. That appears to be the plain object and intent, of section 140 of the CGST & UPGST Acts. It has also allowed ITC to unregistered dealers under the preexisting laws, on tax paid inputs, stocks etc., on the strength of Tax Invoices. 24. Plainly, after the repeal of the pre-existing laws, such an exercise could only be a one-time affair. Once completed, no circumstance would exist or arise as may require or permit a repeat action of that kind. Therefore, the provision is purely temporary, to allow migration from the pre-....
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....on of timeline and manner prescribed, appearing at the end of sub-section (1) of Section 140 relates to the return to be filed under the pre-existing/repealed law/s or it pertains to the transition required to be made upon enforcement of the CGST and UPGST enactments - to avail the CENVAT and ITC brought forward, for the period ending 30 June 2017. 28. The CGST Act and the UPGST Act, pertain to and lay down the law under the GST regime. By virtue of Section 174 of the CGST Act, the provisions of the Central Excise Act, 1944 and/or other Acts pertaining to imposition of like duties, have been specifically repealed. Similarly, by virtue of Section 174 of the UPGST Act, the provisions of the U.P.V.A.T. Act, 2008 have been specifically repealed. The new Act and the Rules framed thereunder only provide for the mode and rules of procedure to file returns, documents etc. Looked at in this light, the words 'within such time and in such manner as may be prescribed' must be read in the context of things required to be done under the CGST/UPGST law, only. 29. To read those words in conjunction with the stipulations made under the pre-existing/repealed laws would be to attribute superflu....
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....arned Additional Advocate General do appear to lay down, by way of a principle, that ITC is not a vested right but merely a concession, at the same time, we cannot overlook the fact that those decisions arose under different laws. 34. To clarify, we observe - a pure concession such as a set-off may be granted under a law, as a discretion or benefit or relaxation, in certain circumstances, for the benefit of some, on an objective classification, by the legislature. However, under the CGST Act and the UPGST Act, ITC is the legislative doctrine arising or springing from a fiscal policy or a modern taxation concept applied by the legislature, whereunder any tax paid at each link of the chain (in a chain of transactions) must not add to the chain, by way of tax burden, more than the tax that would arise on the value addition caused at that link of the chain. The principle involves both, an affirmation of charge of tax at every value addition and negation of double taxation on one value addition. 35. Therefore, it may not be empirically correct to contend that CENVAT or ITC is a pure concession as concessions do not necessarily spring from a conceptual base to tax value addition. H....
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....ction (3) of Section 5, Sections 6 and 6A and sub-section (8) of Section 8 of the Central Sales Tax Act, 1956 made by the applicant; and (ii) the serial number and value of declarations in Forms C or F and certificates in Forms E or H or Form I specified in Rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957 submitted by the applicant in support of the claims referred to in sub-clause (I); [(1A) Notwithstanding anything contained in sub-rule (1), the Commissioner may, on the recommendations of the Council, extend the date for submitting the declaration electronically in FORM GST TRAN-1 by a further period not beyond 31st March, 2019, in respect of registered persons who could not submit the said declaration by the due date on account of technical difficulties on the common portal and in respect of whom the Council has made a recommendation for such extension.] (2) Every declaration under sub-rule (1) shall,- (a) in the case of a claim under sub-section (2) of Section 140, specify separately the following particulars in respect of every item of capital goods as on the appointed day- (i) the amount of tax or duty avail....
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....e of thirty per cent and twenty per cent, respectively of the said tax; (iii) The scheme shall be available for six tax periods from the appointed date. (b) The credit of State tax shall be availed subject to satisfying the following conditions, namely: (i) such goods were not wholly exempt from tax under the (Name of the State) Value Added Tax Act; .... (ii) the document for procurement of such goods is available with the registered person; [(iii) the registered person availing of this scheme and having furnished the details of stock held by him in accordance with the provisions of clause (b) of sub-rule (2), submits a statement in FORM G.S.T. T.R.A.N.-2 by 31st March, 2018, or within such period as extended by the Commissioner, on the recommendations of the Council, for each of the six tax periods during which the scheme is in operation indicating therein, the details of supplies of such goods effected during the tax period:] [Provided that the registered persons filing the declaration in FORM GST TRAN-1 in accordance with sub-rule (1A), may submit the statement in FORM GST TRAN-2 by 30th April, 2019.] (iv) the amount....
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....upersession, the Commissioner hereby extends the period for submitting the declaration in FORM GSTTRAN-1 till 31st March, 2020, for the class of registered persons who could not submit the said declaration by the due date on account of technical difficulties on the common portal and whose cases have been recommended by the Council. Sd/- 07.02.2020 (Yogen a Garg) Principal Commissioner (GST) 40. The matter does not end here. Later, the Parliament introduced Section 168A to the CGST Act. It reads as below: "168A - Power of Government to extend time limit in special circumstances. (1) Notwithstanding anything contained in this Act, the Government may, on the recommendations of the Council, by notification, extend the time limit specified in, or prescribed or notified under, this Act in respect of actions which cannot be completed or complied with due to force majeure. (2) The power to issue notification under sub-section (1) shall include the power to give retrospective effect to such notification from the date not earlier than the date of commencement of this Act. Explanation.- For the purposes of this section, the expression "force ....
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....ons of the said Act, as mentioned below - (a) Chapter IV; (b) sub-section (3) of section 10, sections 25, 27, 31, 37, 47, 50, 69, 90, 122, 129; (c) section 39, except sub-section (3), (4) and (5);(d) section 68, in so far as eway bill is concerned; and (e) rules made under the provisions specified at clause (a) to (d) above; (ii) where an e-way bill has been generated under rule 138 of the Central Goods and Services Tax Rules, 2017 and its period of validity expires during the period 20th day of March, 2020 to 15 th day of April, 2020, the validity period of such e-way bill shall be deemed to have been extended till the 30th day of April, 2020. 2. This notification shall come into force with effect from the 20th day of March, 2020. [F. No. CBEC-20/06/04/2020-GST] (Pramod Kumar) Director, Government of India" 42. Again, on 27.06.2020, the Central Government issued notification no.55 of 2020 under Section 168A of the CGST Act to further extend the time extended (earlier) under its notification no. 35 of 2020 dated 3.4.2020, up to 31.8.2020 - with respect to any acts specified in or prescribed or notified under in respect of the....
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....uction of the GST regime. The recital of the background facts and the modalities offered, are clearly noteworthy. We, therefore, extract the entire circular as below: "Circular No. 39/13/2018-GST F. No. 267/7/2018-CX.8 Government of India Ministry of Finance Department of Revenue Central Board of Indirect Taxes and Customs New Delhi, dated the 3 rd April, 2018 To The Principal Chief Commissioners/ Chief Commissioners/ Principal Commissioners/ Commissioner of Central Tax (All), The Principal Director Generals/ Director Generals (All). Sub: Setting up of an IT Grievance Redressal Mechanism to address the grievances of taxpayers due to technical glitches on GST Portal-reg. Madam/Sir, It has been decided to put in place an IT-Grievance Redressal Mechanism to address the difficulties faced by a section of taxpayers owing to technical glitches on the GST Portal and the relief that needs to be given to them. The relief could be in the nature of allowing filing of any Form or Return prescribed in law or amending any Form or Return already filed. The details of the said grievance redressal mechanism are provided belo....
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....lications received, identify the issue involved where a large section of tax-payers are affected. GSTN shall forward the same to the IT Grievance Redressal Committee with suggested solutions for resolution of the problem. 6. Suggested solutions 6.1 GST Council Secretariat shall obtain inputs of the Law Committee, where necessary, on the proposal of the GSTN and call meeting of GIC to examine the proposal and take decision thereon. 6.2 The committee shall examine and approve the suggested solution with such modifications as may be necessary. 6.3 IT-Grievance Redressal Committee may give directions as necessary to GSTN and field formations of the tax administrations for implementation of the decision. 7. Legal issues 7.1 Where an IT related glitch has been identified as the reason for failure of a taxpayer in filing of a return or form prescribed in the law, the consequential fine and penalty would also be required to be waived. GST Council has delegated the power to the IT Grievance Redressal Committee to recommend waiver of fine or penalty, in case of an emergency, to the Government in terms of section 128 of the CGST Act, 2017 ....
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....med and if needed review or appeal may be filed.10. Trade may be suitably informed and difficulty if any in implementation of the circular may be brought to the notice of the Board. (ROHAN) (Deputy Commissioner)" 46. At the very beginning of the said Circular, it has been recognized by the highest administrative authority under the CGST Act (the CBIC) - the need to address the difficulties faced by the taxpayers owing to technical glitches. It needs no further emphasis, under the changed indirect tax regime, introduced by the CGST Act and the UPGST enactments, the "registered persons" were left with no choice but to submit/revise the Form GST TRAN-1/TRAN-2 electronically, over the GST Portal. In its wisdom, the Parliament, and its delegate the Central Government and State Government did not offer by way of an alternative method, permission to transition the CENVAT/VAT ITC arising under the pre-existing/repealed laws, by physical filing of Form GST TRAN-1/TRAN-2. The legislature and its delegate chose to insist that the transition provision be given effect to only through submission/revision of the form GST TRAN-1/TRAN-2 electronically. That insistence was a pol....
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....asonable limits. That time limit was set at the date 31.08.2020. 50. Though the consequence of non-submission of those Forms are also clearly visible, yet no procedural law may be valid or held mandatory, if there exists physical impossibility or unreasonable difficulty/obstruction, to comply with the same. Once the CGST Act prescribed the manner and time to submit/revise only electronically through Form GST TRAN-1/ TRAN-2, the State was obligated to provide a robust and wholly reliable GST Portal to comply with that law. Failure or inability to provide that reliable online platform would render the strict time prescription (made under Section 140 of the CGST Act read with Rule 117 of the CGST Rules), arbitrary and therefore violative of Article 14 of the Constitution of India. 51. Coming back to the Circular dated 3 April 2018, the CBIC further recognized, there were IT related glitches on the GST Portal resulting in compliances remaining from being made by a vast section of "registered persons". Once that difficulty was recognized to have existed on a pan- India basis, over a long duration of time, the CBIC, in its own wisdom, created a mechanism to resolve the same. Chiefl....
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....edural difficulties in claiming input tax credit in the TRAN-1 form that Court directed the respondents "either to open the portal, so as to enable the petitioner to file the TRAN1 electronically for claiming the transition credit or accept the manually filed TRAN1" and to allow the input credit claimed "after processing the same, if it is otherwise eligible in law". 11. In the present case also the 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 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 ....
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....tax credit in the GST Portal. Acknowledging the procedure and difficulties in claiming input tax credit, this Court and several other High Courts have granted relief to such taxpayers. Failure on the part of the Petitioner to give relevant details in TRAN-1 Form can only be taken as a procedural lapse which should not cause any impediment to its right to claim transition ITC." 54. In Carlsthal Craftsman Enterprises (supra), the Madras High Court was persuaded to follow the above view of the Delhi High Court. It allowed the "registered persons"/taxpayers to transition the ITC. It was held: "4. In the present case, the error is seen to be inadvertent, constituting a human error. The Revenue does not dispute this either. Moreover, the era of GST is nascent and I am of the view that a rigid view should not be taken in procedural matters such as the present one. 5. The petitioner is thus be permitted to transition the credit. After all, the consequence of such transition is only the availment of the credit and not the utilization itself, which is a matter of assessment and which can be looked into by the Assessing Officer at the appropriate stage." 55. In Jakap M....
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....pops up by way of an acknowledgement that the Form with the credit claimed has been correctly uploaded. 23. In this case, it is not as if the petitioner has not filed FORM GST TRAN-1 within the time provided by the respondents under the rules. The petitioner had filed the form, but on account of not properly understanding the nature of the columns provided in the form, due to inadvertent error, did not mention the details of Rs. 83,99,136/- in column 6 of Table 5a and instead uploaded the details in column 5 of Table 5a in FORM GST TRAN-1. Now the substantive right of the petitioner to claim transition credit of such amount is sought to be denied on the ground that the time limit for filing revised FORM GST TRAN-1 has elapsed. 24. In the opinion of this court, as held by the Delhi High Court in M/s Blue Bird Pure Pvt. Ltd. vs. Union of India (supra), the respondents ought to have provided in the system itself a facility for rectification of such errors which are clearly bona fide. Besides, although the system provided for revision of a return, the deadline for making the revision coincided with the last date for filing the return, that is, 27th December, 2017. Thu....
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....casion to consider this issue whereupon it required the GST Council to take a decision in the matter. The matter was required to be examined by the GST Council. However, no contrary view (of this Court), has been shown to us. 58. Undisputedly, existence of various opinions of different High Courts referred above are also clear evidence of the difficulty faced by the "registered persons"/taxpayers, pan-India. Also, those decisions are evidence of that difficulty faced over a long duration of time, stretching into the period when the pandemic COVID-19 spread all over the country, beginning from 2019 (Blue Bird Pure Pvt. Ltd. case) to 2021 (R R Distributor case). 59. Looking at the institution date of the present batch of writ petitions, we find, these have been instituted from the year 2018 to 2021. It corresponds to the period when similar petitions were filed and were decided in favour of other "registered persons"/taxpayers, by other High Courts, allowing them margin of time to submit/revise electronically, Form GST TRAN-1 and/or TRAN-2. 60. Therefore, without referring to the individual difficulties cited by the petitioners in the present batch of petitions, we are of th....
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....ence of individual difficulty faced. In absence of existence of any statutory requirement (at the relevant time), that burden would now involve recalling from memory, the number of attempts made and the time and date when such attempt was made - to retrieve electronic trail of that event. 65. In absence of any enabling law, that burden cast on the "registered persons"/tax payers - to lead evidence of difficulty faced, is wholly arbitrary and unreasonable and therefore unenforceable. The injury caused being attributable to the State authorities, even if unintentional, the "registered persons"/taxpayers cannot be burdened today, to bring home evidence to establish the extent of the injury caused that too with respect to transition provision newly introduced, especially when the injury sprung from a generic event/cause. 66. It is also a common fact, not all "registered persons"/taxpayers would submit electronically, Form GST TRAN-1/TRAN-2, themselves. Often, professionals are hired to make such compliances. A single tax practitioner or Chartered Accountant may be engaged by numerous "registered persons"/taxpayers to submit electronically, their respective Form GST TRAN-1/TRAN-2.....
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....ation, one knows where he stands but the wand of official arbitrariness can be waved in all directions indiscriminately." 70. Similarly, in S.G. Jaisinghani Vs. Union of India & ors., AIR 1967 SC 1427, a Constitution Bench of the Supreme Court observed as under:- "In the context it is important to emphasize that absence of arbitrary power is the first essence of the rule of law, upon which our whole Constitutional System is based. In a system governed by rule of law, discretion, when conferred upon Executive Authorities, must be confined within the clearly defined limits. Rule of law, from this point of view, means that the decision should be made by the application of known principle and rules and in general such decision should be predictable and the citizen should know where he is, if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law." 71. Looked from another perspective, the clear intent of the legislature is to grant benefit of CENVAT and ITC under the pre-existing laws, as may have been carried forward on the appointed date 01.07.2017. In ....