TaxTMI 
TaxTMI 
2023 (7) TMI 1004
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....l credit during the period 2017-18, which includes the transitional credit of Rs. 5,10,21,204/- claimed by the Petitioner prior to 17.04.2018 and balance amount of Rs. 92,13,412/- has been claimed by the Petitioner as Transitional credit by filing new TRAN-1 in light of the Order passed by Hon'ble Supreme Court in the case of Union of India Vrs. Filco Trade Centre Pvt. Ltd. being SLP (C) No. 32709-32710/2018, without considering the show cause reply dated 20.02.2023 (Annexure-8) of the Petitioner and even without considering the Judgment of the Hon'ble Supreme Court passed in the case of Ghanshyam Mishra and Sons Private Ltd. Yrs. Edelweiss Asset Reconstruction Company Ltd. reported in (2021) 9 SCC 657, to the effect that no recovery and or proceeding can be continued against the Petitioner, for any alleged dues prior to 17.04.2018 (Annexure-1) i.e. the date on which the National Company Law Tribunal has approved the resolution plan of the Petitioner. (b) For quashing and setting aside the Demand-cum- Notice to Show Cause dated 09.02.2023 (Annexure-5) issued by the Respondent No. 2, directing the Petitioner to file show cause reply within five days as to why ITC amounting to Rs. ....
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....standing anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. (e) For any other appropriate Writ(s), Order(s), Direction(s) as may be deemed fit and proper by your Lordships for doing substantial and conscionable justice to the Petitioner. 2. The brief fact of the case is that the State Bank of India, being the major financial institution of the Petitioner, had filed a Company Petition being CA(IB) No. 361/KB/2017 before National Company Law Tribunal, Kolkata under the provisions of Insolvency and Bankruptcy Code, 2016, for initiating Corporate Insolvency Resolution Process of the Petitioner. Vide Order dated 21.07.2017, the said Application of SBI was admitted and a Resolution Professional was appointed as the Interim Insolvency Resolution Professional (IRP). During the course of its proceeding, the said Resolution Professional (RP) filed a Resolution Plan dated 29.03.2018 being CA (IB) No. 277 of 2018 of M/s Vedanta Limited for the approval by the NCLT under Section 31(1) of the Code, 2016, which Resolution Plan was duly approved by the Committee of Creditors (CoC) by 100% voting shar....
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.... No. 3 vide Letter dated 05.12.2022 regarding submissions of aforesaid Revised TRAN-1, (Annexure-4). Subsequently, vide Letter dated 25.01.2023, the Petitioner submitted declaration in relation to TRAN-1 filed (Original and Revised) before the Respondent No. 3, (Annexure-4). However, instead of allowing the aforesaid TRAN-1, the Respondent No. 2 issued a Demand-cum-Notice to Show Cause dated 09.02.2023, directing the Petitioner to file show cause reply within five days as to why ITC amounting to Rs. 6,02,34,616/- including interest and penalty should not be imposed upon the Petitioner, (Annexure-5). Vide the aforesaid Demand-cum-Notice to Show Cause dated 09.02.2023 (Annexure-5), the Respondent No. 2 had directed to file Show Cause Reply within 5 days and fixed the date of personal hearing on 14.02.2023 i.e., within a period of five days. Petitioner vide Letter dated 14.02.2023 requested the Respondent No. 2 to allow three weeks time to file detailed reply to the said Demand-cum-Notice to Show Cause dated 09.02.2023 (Annexure-5) as it is not possible for the Petitioner to file detailed show cause reply in such a short span of time, (Annexure-6). However, Superintendent (adjudicat....
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....onfirmed the demand of Rs.6,02,34,616/- u/s 74(9) of the Central Goods and Service Tax Act, 2017 on the ground of irregular availment of transitional credit during the period 2017-18, which includes the transitional credit of Rs. 5,10,21,204/- claimed by the Petitioner prior to 17.04.2018 and balance amount of Rs. 92,13,412/- has been claimed the Petitioner as Transitional credit by filing new TRAN-1 in light of the Order passed by Hon'ble Apex Court in the case of Union of India Vrs. Filco Trade Centre Put. Ltd. being SLP (C) No. 32709-32710/2018. Mr. Poddar contended that the Order-in-Original dated 24.02.2023 (Annexure-9) of the Respondent No. 2, is illegal and arbitrary and has been passed without considering the show cause reply dated 20.02.2023 (Annexure-8) of the Petitioner and even without considering the Judgment of the Hon'ble Apex Court passed in the case of Ghanshyam Mishra and Sons Private Ltd. (supra). Mr. Poddar further submits that as per the aforesaid judgment of Hon'ble Apex Court no recovery and or proceeding can be continued against the Petitioner, for any alleged dues prior to 17.04.2018 (Annexure-1) i.e., the date on which the National Company Law Tribunal h....
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....n the case of Ghanshyam Mishra and Sons Pvt Ltd. (supra). The violation of act and rule which is the basis for denial of TRAN-1 credit amounting to Rs.6,02,34,616/- is categorically explained in Para 4 and 5 of the adjudication order issued dated 24.02.2023. The above violations have never been denied by the petitioner in their reply which means that the above alleged violations are correct and ITC is not available to them as per Act and Rules. Further, the petitioner had requested to drop all proceedings on the basis of the judgment dated 13.04.2021 of the Hon'ble Apex Court from recovery against the liabilities. In this regard, the adjudicating authority has categorically explained the reasons in para-7 of the adjudication order issued dated 24.04.2023. Mr. Pati further submits that the respondent is not trying to take exception of the said judgment of the Hon'ble Apex Court, but demanding the ineligible ITC availed by the petitioner as per the provisions of CGST Act, 2017. 5. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits and the documents annexed therein and the judgments passed by the Hon'ble Apex Cour....
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....gment dated 13.04.2021 of the Hon "ble Supreme Court from recovery against the liabilities, but it is well established that the liabilities go parallel with the assets. The taxpayer have opted to avail the benefit of Transitional credit for the period prior to change of management. On perusal of the said judgment, it appears that the judgment is for Electrosteel Steels Limited. Bokaro, Jharkhand vs.State of Jharkhand and Others (CIVIL APPEALS ARISING OUT OF SPECLAL LEAVE PETITION (CIVIL) NOS. 71477150 of 2020) wherein the Hon'ble Supreme Court has ordered not to recover the dues of Central/State Taxes pertaining to the period of previous management. But the instant case pertains to wrongful availment of benefit by the taxpayer in the form of transitional credit in TRAN- 1 discarding all the liabilities of the older period, therefore, all the constraints will also be applicable to them for all related measures under the provisions of the CGST Act, 2017 including admissibility as well as validity of TRAN-1. Since the Apex Court appears to be of the view that the current management was not a taxpayer for the period prior to 04.06.2018. i.e., the date of change of management and theref....