Elements Homestead Products PVT.LTD. vs. Union Of Inida And Others - Kerala High Court, 14 September 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 14TH DAY OF SEPTEMBER 2018 / 23RD BHADRA, 1940 WP(C).No. 27548 of 2018 PETITIONER/S: ELEMENTS HOMESTEAD PRODUCTS PVT.LTD. CUSTOMS ROAD, KOZHIKODE, REPRESENTED BY ITS AUTHORISED SIGNATORY K.D FRANCIS BY ADV. MAYANKUTTY MATHER K.I. RESPONDENT/S: 1 UNION OF INIDA AND OTHERS THROUGH ITS SECRETARY (REVENUE), MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, GOVT OF INDIA, NORTH BLOCK, NEW DELHI 110001 2 THE PRINCIPAL SECRETARY FINANCE (GST WING) FINANCE (REV-1) DEPARTMENT 4TH LEVEL A-WING, DELHI SECRETARIAT, I.P.ESTATE, NEW DELHI-110002. 3 GST COUNCIL THROUGH ITS CHAIRPERSON, DEPARTMENT OF FINANCE, NORTH BLOCK, NEW DELHI- 110001 4 GOODS AND SERVICE TAX NETWORK THROUGH ITS CHAIRMAN, EAST WING, 401 FLOOR, WORLD MARK-AEROCITY, NEW DELHI-110037 -2- W.P.(C). No. 27548 of 2018 5 THE COMMISSIONER GOODS AND SERVICES TAX DEPARTMENT, KARAMANA, THIRUVANANTHAPURAM-695002. 6 DEPUTY COMMISSIONER STATE GOODS AND SERVICE TAX DEPARTMENT, KOZHIKODE-673001. 7 SUPERINTENDENT OFFICE OF THE SUPERINTENDENT OF CENTRAL TAX AND CENTRAL EXCISE, CENTRAL REVENUE BUILDING, KOZHIKODE-673001. 8 THE NODAL OFFICER FOR STATE GST GOODS AND SERVICE TAX DEPARTMENT, KARAMANA, THIRUVANANTHAPURAM-695017. 9 THE NODAL OFFICER CENTRAL GST GOODS AND SERVICES TAX DEPARTMENT, KARAMANA, THIRUVANANTHAPURAM-695002. 10 ADDL.R10. DIVISIONAL OFFICER (NODAL OFFICER) KOZHIKODE URBAN DIVISION, OFFICER OF COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE, CENTRAL TAX COMMISSIONERATE, GST BHAVAN, MANANCHIRA, KOZHIKODE - 673001. (ADDL.R10 IS IMPLEADED AS PER ORDER DATED 13.09.2018 IN IA 1/2018.) BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OTHER PRESENT: GP DR THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -3- W.P.(C). No. 27548 of 2018

JUDGMENT The petitioner was a registered dealer under the Kerala Value Added Tax Act, now migrated to the Goods and Services Tax regime. To use the input tax available to his credit at the time of migration, the petitioner had to upload FORM GST TRAN-1 within the stipulated time. He asserts that though he attempted to upload it within the time, he failed because of some system error. The petitioner, therefore, seeks directions to enable him to take credit of the available input tax.

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

The Ext.P7 is the circular issued by the Government of India 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 -4- 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 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 additional tenth respondent for the issue resolution.

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So, in this case also, the petitioner may apply to the additional tenth respondent, 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.

I may also observe that if the petitioner applies within two weeks after receiving this judgment, the Nodal Officer will consider and take steps within a week thereafter. If the uploading of FORM GST TRAN-1 is not possible for reasons not attributable to the petitioner, the authority will also enable him to take credit of the input tax available at the time of migration. With these directions, I dispose of the Writ Petition. DAMA SESHADRI NAIDU JUDGE das

-6- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE CERTIFICATE OF REGISTRATION GRANTED TO THE PETITIONER. EXHIBIT P2OF THE REPRESENTATION FILED BY THE PETITIONER TO OFFICER IN CHARGE OF THE GST CELL. EXHIBIT P2 AOF THE LETTER ISSUED TO 6TH RESPONDENT. EXHIBIT P3OF THELETTER ISSUED BY THE PETITIONER TO OFFICER IN CHARGE OF THE GST CELL AND THE 6TH RESPONDENT. EXHIBIT P4OF THE LETTER ISSUED BY THE PETITIONER TO RANGE OFFICER, CENTRAL TAX AND CENTRAL EXCISE, KOZHIKODE. EXHIBIT P5OF THE LETTER ISSUED BY THE 7TH RESPONDENT TO THE PETITIONER. EXHIBIT P6OF THE LETTER ISSUED BY THE PETITIONER TO THE 7TH RESPONDENT. EXHIBIT P7OF THE CIRCULAR NO.39/13/2018-GST. EXHIBIT P8OF THE NOTIFICATION NO.21/2017. EXHIBIT P9OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C)20978/2018.