TaxTMI 
TaxTMI 
2024 (10) TMI 1161
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.... CGST Rules as being ultra-vires Section 140 (3) of the CGST Act as well as contrary to the object, purpose and scheme of the CGST Act and violating Article 14 of the Constitution of India; B. Without prejudice to the above and in the alternative this Hon'ble Court may be pleased to declare Rule 117 (4) (b) (iii) of the CGST Rules to be directory in nature and it may please be declared that transitional tax credit cannot be disallowed merely based on non-filing of GST TRAN-2 within the stipulated time limit; C. This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ or order quashing and setting aside impugned show cause notice dated 19.11.2019 (annexed at Annexure A) issued by the 2nd Respondent authority; D. Pending notice, admission and final hearing of this petition, this Hon'ble Court may be pleased to stay further proceedings pursuant to impugned show cause notice dated 19.11.2019 (annexed at Annexure A); E. Ex-parte ad interim relief in terms of prayer D may kindly be granted; F. Such further relief(s) as deemed fit in the facts and circumstances of th....
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....x credit under the provision of Section 140 (3) of the CGST Act pertaining to the excise duty component upon the goods in stock with the petitioner on 30.06.2017. 6. It is the case of the petitioner that online Form TRAN-1 for availing transitional credit under Section 140 (3) of the CGST Act was filed on 12.12.2017 along with the details of the goods held in stock as on 30.06.2017. The petitioner calculated admissible input tax credit by applying Rule 140 (4) (a) (ii) of the GST Rules, 2017. 7. It is the case of the petitioner that inadvertently the petitioner did not mention the details and the amount in the column meant for stock in respect of which documents evidencing payment of duty are available. The petitioner got the transitional credit in the electronic credit ledger upon filing of such form. 8. The petitioner realized the mistake of not mentioning the details and amount in the column meant for stock in respect of which only documents evidencing payment of duty are available so as to enable the petitioner to file the Form TRAN-1 before the last date of filing as well as revising TRAN-1 on 27.12.2017. 9. As the transitional credit was already stood reflected in....
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....n the GST portal for a period of two months considering the fact that number of taxable persons had been unable to file Form GST TRAN-1/ TRAN-2, during the initial stage of implementation of the GST regime due to technical glitches. 18. By order dated 02.09.2022, time was extended for opening the portal by further period of four weeks. 19. The petitioner therefore in view of the order passed by the Hon'ble Apex Court again tried to file GST TRAN-2 and resubmitted GST TRAN-1 anticipating that thereafter it would be permitted to file GST TRAN-2. It is the case of the petitioner that when the petitioner tried to submit Form GST TRAN-2, a technical error was displayed on the portal showing that since there was no data filed in part 7B of Table 7(a), the petitioner would not be allowed to file GST TRAN-2. 20. The petitioner therefore by e-mail dated 07.11.2022 raised the grievance before the GSTN help desk requesting for resetting the Form because of the issue being faced by the petitioner for not being able to upload the GST Form TRAN-2 in the GST portal which was still open. 21. The GSTN help desk by e-mail dated 17.11.2022 responded that modification in GST TRAN-1 would n....
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....ammeled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reason....
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....stitutional right. CENVAT credit earned under the erstwhile Central Excise Law is the property of the writ-applicants and it cannot be appropriated for merely failing to file a declaration in the absence of Law in this respect. It could have been appropriated by the government by providing for the same in the CGST Act but it cannot be taken away by virtue of merely framing Rules in this regard. 43. In the result, all the four writ-applications succeed and are hereby allowed. The respondents are directed to permit the writ-applicants to allow filing of declaration in form GST TRAN-1 and GST TRAN-2 so as to enable them to claim transitional credit of the eligible duties in respect of the inputs held in stock on the appointed day in terms of Section 140 (3) of the Act. It is further declared that the due date contemplated under Rule 117 of the CGST Rules for the purposes of claiming transitional credit is procedural in nature and thus should not be construed as a mandatory provision." 27. On the other hand learned advocate for the respondent have referred to and relied upon the following averments in the affidavit-in-reply filed on behalf of the respondent nos.3 and 4 as u....
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....ubmitted, the modification is not allowed, which is system behavior. The system cannot be changed in accordance with an individual taxpayer's unreasonable demand/want. The system is designed to work in a defined behavior and any anomaly or interference will lead to reaping/implanting of technical bugs in the system. Also, the system is designed according to the policies and allowing any changes and modification post submission is the purview of GSTN, the legality of which shall be decided by the tax authorities. 8. It is submitted that the petitioner having GST No. 24AADPM7920L1ZK is registered under Gujarat State GST department. 9. It is submitted that the averment made by the petitioner is incorrect. That GSTN has not refused the petitioner to file GST TRAN-2, rather it all depended upon how the petitioner had filed GST TRAN-1. It is hereby recapitulated that the assertion made by petitioner is false and misleading and there was no technical glitch in the system, it was only due to the negligence of the petitioner that he was unable to further file GST TRAN-2. It must be noted that filing of GST TRAN-1 and GST TRAN-2 is automated with no manual intervention ....
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....itional credit amounting to Rs. 49,86,999/- along with applicable interest on the grounds of invoices not pertaining to Central Tax. The invoices submitted by petitioner were related to VAT which was in contravention with Section 140 (3) of Central GST Act. 17. Section 140 (3) states as under:-A registered person, who was not liable to be registered under the existing law, or who was engaged in the manufacture of exempted goods or provision of exempted services, or who was providing works contract service and was availing of the benefit of notification No. 26/2012-Service Tax, dated the 20th June, 2012 or a first stage dealer or a second stage dealer or a registered importer or a depot of a manufacturer, shall be entitled to take, in his electronic credit ledger, credit of eligible duties in respect of inputs held in stock and inputs contained in semi-finished or finished 4[goods held in stock on the appointed day, within such time and in such manner as may be prescribed, subject to] the following conditions, namely:- (i) such inputs or goods are used or intended to be used for making taxable supplies under this Act; (ii) the said registered person is eli....
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....117 (4) (b) ((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 GST TRAN-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 6[30th April, 2020]; 20. The petitioner stated the fact that Hon'ble Supreme Court in the case of Union of India Vs Filco Trade Centre Pvt. Ltd. Special Leave Petition No. 32709 of 2018 decided on 22.07.2022 directing the government to open the GST portal for a period of two months considering the fact the number of taxable persons had been unable to file Form GST TRAN -1 & TRAN-2 during the initial stage of implementation of GST regime due to technical glitches. 21. It is submitted that as per Circular....