A & B Toolers vs. Union Of INDIA - Kerala High Court, 12 October 2018

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY ,THE 12TH DAY OF OCTOBER 2018 / 20TH ASWINA, 1940 WP(C).No. 6877 of 2018 PETITIONER/S: A & B TOOLERS PLOT NO. 17, KINDFRA PARK,KAKKANAD, COCHIN 682042,REPRESENTED BY ITS MANAGING PARTNER,NEERAJ BALAN BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENT/S: 1 UNION OF INDIA DEPARTMENT OF REVENUE,CENTRAL BOARD OF EXCISE AND CUSTOMS,NEW DELHI 110001, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE 2 STATE OF KERALA TAXES (B) DEPARTMENT, STATE GOODS & SERVICE TAX DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM 695001REPRESENTED BY ITS SECRETARY TO GOVERNMENT 3 GOODS AND SERVICE TAX COUNCIL 5TH FLOOR, TOWER II, JEEVAN BHARATI BUILDING,JANPATH ROAD, CANNAUGHT PLACE,NEW DELHI 110001, REPRESENTED BY ITS CHAIRPERSON 4 GOODS AND SERVICES TAX NETWORK PVT. LTD. EAST WING, 4TH FLOOR, WORK MAR I,AEROCITY, NEW DELHI 110037, REPRESENTED BY ITS MANAGING DIRECTOR W.P.(C) No.6877/2018 -2- 5 COMMISIONER OF CENTRAL GOODS AND SERVICE TAX DEPARTMENT OF REVENUE,CENTRAL BOARD OF EXCISE AND CUSTOMS,NEW DELHI 110001 6 STATE TAX OFFICER STATE GOODS AND SERVICE TAX DEPARTMENT,2ND CIRCLE, KALAMASSERY AT KAKKANAD,CIVIL STATION, COCHIN 682030 ADDL 7 CHAIRMAN GOODS AND SERVICES TAX NETWORK PVT. LTD., EAST WING, 4TH FLOOR, WORLD MARK-1, AEROCITY, NEW DELHI - 110037. ADDL 8 NODAL OFFICER GOODS AND SERVICES TAX (INFORMATION SYSTEM), OFFICE OF COMMISSIONER OF STATE GOODS AND SERVICES TAX DEPARTMENT, THIRUVANANTHAPURAM-695022. ADDL. R7 AND R8 IMPLEADED AS PER ORDER DATED 9.8.2018 IN I.A. NO.14493/2018 BY ADVS. SRI.P.R.SREEJITH, SC, CENTRAL BOARD OF EXCISE AND CUSTOMS GP DR. THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

J U D G M E N T The petitioner, a registered dealer under the Kerala Value Added Tax Act, has now migrated to the Goods and Services Tax regime. To use the input tax available to its credit at the time of migration, the petitioner had to upload FORM GST TRAN-1 within -3- the stipulated time. The petitioner asserts that though it attempted to upload the form within the time, it failed because of some system error. The petitioner, therefore, seeks directions for taking credit of the available input tax.

Heard the learned counsel for the petitioner, the learned Government Pleader, as well as the learned Standing Counsel, besides perusing the record.

The Government of India has issued Circular No.39/13/2018-GST, dated 03.04.2018, for “setting up an IT Grievance Redressal Mechanism to address the grievances of taxpayers due to technical glitches on GST Portal.” Paragraph 5 of the circular outlines the procedure the Nodal Officers is to follow. It reads:

Nodal officers and identification of issues

1 GSTN, Central and State government would appoint nodal officers in requisite number to address the problem a taxpayer faces due to glitches, if any, in the Common Portal. This would be publicized adequately.

2 Taxpayers shall make an application to the field officers or the nodal officers where there was a demonstrable glitch on the -4- Common Portal in relation to an identified issue, due to which the due process as envisaged in law could not be completed on the Common Portal.

3 Such an application shall enclose evidences as may be needed for an identified issue to establish bona fide attempt on the part of the taxpayer to comply with the due process of law

4 These applications shall be collated by the nodal officer and forwarded to GSTN who would on receipt of application examine the same. GSTN shall after verifying its electronic records and the applications 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. (italics supplied)

Not only the petitioner but also many other people faced this technical glitch and approached this Court. Both the learned counsel submit that this Court on earlier occasions permitted the petitioners to apply to the Nodal Officer concerned to have the issue resolved.

So, here too, the petitioner may apply to the Nodal Officer. The petitioner applying, the Nodal Officer will look into the issue and facilitate the petitioner’s uploading FORM GST TRAN-1, without reference to the time-frame. Ordered so.

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The petitioner has yet another grievance: He was asked to pay late fee of Rs.54,050/-, as seen from Ext.P10. The petitioner's counsel contends that the petitioner was disabled from uploading the returns only because of the technical glitches, and for that the petitioner could not be made to suffer.

In response, the Standing Counsel for the 7th respondent draws my attention to paragraph 7.1 of the Circular dated 3rd April 2018. And it reads as follows: “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 under such mitigating circumstances as are identified by the committee. All such notifications waiving fine or penalty shall be placed before the GST Council.”

Under these circumstances, I hold that the respondent authorities as well as the Nodal Officer for the Centre will resolve -6- the petitioner's grievance about the late fee in terms of paragraph 7.1 of the Circular. With these directions, I dispose of the Writ Petition. DAMA SESHADRI NAIDU JUDGE jjj APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF RETURN DATED 10.07.2017 SUBMITTED FOR JUNCE 2017 WITH AN OUT PUT TAX PAYMENT OF RS. 28, 901/- BY ONLINE PAYMENT UNDER THE KERALA VALUE ADDED TAX ACT EXHIBIT P1 A COPY OF QUARTERLY RETURN DATED 14.07.2017 SUBMITTED FOR APRIL -JUNE 2017 WITH AN AMOUNT OF RS. 34,90,831/- AVAILABLE AS CENVAT CREDIT FOR CARRY FORWARD FOR FUTURE PERIODS, UNDER CENTRAL EXCISE RULES EXHIBIT P2 COPY OF REGISTRATION CERTIFICATE DATED 22.09.2017 ISSUED WITH EFFECT FROM 01.07.2017 UNDER GOODS AND SERVICE TAX ACT 2017 WHILE MIGRATING FROM KVAT ACT EXHIBIT P3 COPY OF E MAIL DATED 31.10.2017 SENT BY PETITIONER TO GST CELL COMPLAINING PENDENCY OF AMENDMENT APPLCIATION IN GST ONLINE PORTAL -7- EXHIBIT P3 A COPY OF AMENDMENT ORDER DATED 11.11.2017 ISSUED AGAINST EXT P3 REQUEST BY 6TH RESPONDENT EXHIBIT P4 COPY OF E MAIL DATED 29.11.2017 SENT BY PETITIONER TO GST CELL COMPLAINING PENDENCY OF AMENDMENT APPLICATION DATED 14.11.2017 IN GST ONLINE PORTAL EXHIBIT P4 A COPY OF AMENDMENT ORDER DATED 06.12.2017 ISSUED AGAINST EXT P4 REQUEST BY 6TH RESPONDENT EXHIBIT P4 A COPY OF AMENDMENT ORDER DATED 06.12.2017 ISSUED AGAINST EXT P4 REQUEST BY 6TH RESPONDENT EXHIBIT P5 COPY OF EMAIL DATED 18.12.2017 SENT BY PETITIONER TO GST CELL IN COMPLAINING PENDENCY OF AMENDMENT FOR SHOWING THE RESULT AS PENDING PROCESSING EXHIBIT P5 A COPY OF AMENDMENT ORDER DATED 01.01.2018 ISSUED AGAINST EXT P5 REQUEST BY 6TH RESPONDENT EXHIBIT P6 COPY OF AMENDMENT ORDER DATED 30.01.2018 ISSUED BY 6TH RESPONDENT AGAINST APPLICATION DATED 29.01.2018 AND THE FINAL AMENDMENT CERTIFICATE EXHIBIT P7 COPY OF ORDER NO. 07/2017-GST DATED 28.10.2017 ISSUED BY 5TH RESPONDENT IN EXTENDING THE PERIOD FOR SUBMITTING FROM GST TRAN I,TILL 30.11.2017 EXHIBIT P7 A COPY OF ORDER NO. 09/2017-GST DATED 15.11.2017 ISSUED BY TH RESPONDENT IN EXTENDING THE PERIOD FOR SUBMITTING FORM GST TRAN I TILL 27TH DECEMBER 2017 AND THE PRESS RELEASE MADE ON 12.12.2017 EXHIBIT P8 COPY OF LETTER DATED 29.01.2018 SUBMITTED BY PETITIONER REQUESTING FOR A FACILITY IN ONLINE FILING OF GST TRANS 1 -8- EXHIBIT P8 A COPY OF REMINDER LETTER DATED 03.02.2018 SUBMITTED BY THE PETITIONER BEFORE 6TH RESPONDENT REQUESTING TO PROVIDE FACILITY IN ONLINE FILING OF GST TRAN 1 EXHIBIT P9 COPY OF JUDGMENT DATED 24.01.2018 PASSED BY THE HON'BLE ALLAHABAD HIGH COURT IN WRIT TAX NO. 67/2018 IN M/S. CONTINENTAL INDIA PRIVATE LIMITED THE HON'BLE HIGH COURT AT BOMBAY IN WRIT PETITIONER NO. 2230/2018 FOLLOWING EXT P9 JUDGMENT EXHIBIT P10OF PROOF OF PAYMENT OF LATE FEE ALONG AMOUNT TO RS.54,050/- PAID ALONG WITH THE RETURNS SUBMITTED UNDER GOODS AND SERVICES TAX ACT AND RULES FOR NOVEMBER 2017 TO JUNE 2018