TaxTMI 
TaxTMI 
2021 (12) TMI 375
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....in a specific cut off date which was initially 21.09.2017 and which was subsequently extended up-till 15.11.2017 and thereafter again upto 27.12.2017. The proprietor of the petitioner-establishment however expired on 20.09.2017 and because of the said compelling circumstances, the TRAN-1 Form could not be submitted within the period provided under the statute and even under the extended period up-till 27.12.2017 which was extended by the GST Council. 3. The legal heirs of the proprietor thereafter took charge of the business and thereafter they tried to submit the TRAN-1 Form. However because of the Technical difficulties and Glitches that occurred, the Form could not be uploaded. The GST Council thereafter again vide notification dated 10.09.2018 extended the last date of submitting of TRAN-1 Form for the year 2017 up-till 31.03.2019. The petitioner again made an attempt on 12.11.2018, however again because of Technical difficulties, the TRAN-1 Form could not be uploaded. Immediate thereafter, the petitioner is said to have made a representation to the Commissioner in this regard seeking permission to submit the TRAN-1 Form by opening of the Portal or permitting them to submit ma....
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.... the TRAN-1 Form and there is also no evidence in-respect-of there being any technical glitch which prevented the petitioner from uploading the TRAN-1 form and in the absence of any such details available, the claim of the petitioner again at this belated stage cannot be entertained. 6. The issue of registered members who could not submit the GST TRAN-1 by the last date prescribed under the statute i.e. 27.12.2017 as extended by the GST Council, came up for consideration before every High Courts. Some of the recent decisions rendered in this regard is that of the Division Bench of the Kerala High Court in the case of Union of India & Ors. Vs. Merchem India Pvt. Ltd., (2021)67 TLD 420, dealing with a similar situation in paragraphs 8 to 11 have held as under:- 8. It is significant to note that the statute does not provide for any provision for lapsing of unutilized input tax credit for non filing of TRAN-1. The input tax credit is required by law to be credited to the electronic credit ledger of an assessee. Failure to credit the input tax credit is an infraction of section 140(1) and to Rule 117(3) of the GST Rules. Input tax credit is an asset in the hands of the dealer. A regi....
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....y registered persons and at present they are free to verify fact and figures of any Petitioner thus inspite of being aware of complete facts and figures, the Respondent cannot deprive Petitioners from their valuable right of credit. 15. During the course of arguments, counsel for the Petitioners submitted various judgments and we find that a Division Bench of Gujrat High Court in the case of Siddharth Enterprises v. The Nodal Officer 2019 TIOL 2068 has dealt with issue involved at length. It has been held that denial of credit of tax duty paid under existing Acts would amount to violation of Article 14 and 300A of Constitution of India. Unutilized credit has been recognized as vested right and property in terms of Article 300A of the Constitution of India. We deem it appropriate to reproduce relevant extracts as below: "33. In our opinion, it is arbitrary, irrational and unreasonable to discriminate in terms of the time-limit to allow the availment of the input tax credit with respect to the purchase of goods and services made in the pre-GST regime and post-GST regime and, therefore, it is violative of Article 14 of the Constitution. 34. Section 16 of the CGST Act allows t....
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....is seen that the near identical circumstances the Delhi High Court by the judgment dated 21st November, 2019 in W.P. (C) No.1329 of 2019 (Aagman Services Private Limited v. Union of India) permitted the Petitioner in that case to submit his TRAN-1 form either electronically or manually. In that case too, the Petitioner's case was considered in the meeting of the GST Council. The Delhi High Court relied on an earlier decision dated 29th July, 2019 in W.P.(C) No.13772 of 2018 (M s. Blue Bird Pure Pvt. Ltd. v. Union of India 2019 SCC Online 9250 and allowed the petition. Against the above decision of the Delhi High Court in Aagman Services Private Limited (supra) a Nodal Officer, Delhi State GST Department filed Special Leave Petition (Civil) Diary No.22386 of 2020 which was dismissed by the Supreme Court on 7th January, 2021 both on the ground of delay as well on merits. A copy of the said order is placed before the Court. 10. Earlier thereto on 4th November, 2019 the High Court of Punjab and Haryana delivered a judgment of Adfert Technologies Pvt. Ltd. v. Union of India and others, (2020) 73 GSTR 267 holding the similar reasons adopted and adduced by the Petitioner by that day....
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.... 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 the opinion, the difficulties claimed were generic as had been recognized by the CBIC itself vide his circular dated 03.04.2018 as also by various decisions of the other High Courts. Those difficulties and obstacles were suffered over a very long duration. It therefore necessarily emerges that the petitioners"registered persons" were unreasonably o....
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...."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. Once such professional would try to submit such Form electronically, on behalf of one taxpayer and fail, as part of the prudent behaviour, he may be expected to make no further attempts on behalf of each of the other "registered person" taxpayer, at the same time, though he may have been similarly engaged by others as well. 67. At the relevant time,....