Smlash Ispat Private Limited vs. Union Of INDIA - Kerala High Court, 12 September 2018

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY,THE 12TH DAY OF SEPTEMBER 2018 / 21ST BHADRA, 1940 WP(C).No. 29024 of 2018 PETITIONER/S: SMLASH ISPAT PRIVATE LIMITED PAZHUKKARA PO, ANNALOOR, THRISSUR, REPRESENTED BY ITS MANAGING DIRECTOR, SRI-SHALIMAR A.I 680731 BY ADV. SRI.N.MURALEEDHARAN NAIR RESPONDENT/S: 1 UNION OF INDIA REPRESENTED BY ITS SECRETARY(REVENUE) MINISTRY OF FINANCE DEPARTMENT OF REVENUE, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI- 110001 2 THE PRINCIPAL SECRETARY. RESPONDENT FINANCE (GST WING) FINANCE (REVENUE-1) DEPARTMENT 4TH LEVEL, A-WING, DELHI SECRETARIAT, I.P ESTATE, NEW DELHI-110002. 3 GOODS AND SERVICE TAX COUNCIL, REPRESENTED BY ITS CHAIRPERSON, DEPARTMENT OF FINANCE, NORTH BLOCK, NEW DELHI-110001. 4 GOODS AND SERIVICES TAX NETWORK REPRESENTED BY ITS CHAIRPERSON, EAST WING, 4TH FLOOR, WORLD MARK-1, AEROCITY, NEW DELHI-110037. W.P.(C) No.29024/2018 2 5 THE COMMISSIONER GOODS AND SERVICES TAX DEPARTMENT, KARAMANA, THIRUVANANTHAPURAM, KERALA-695002 6 THE NODEL OFFICER FOR STATE GOODS AND SERVICE TAX GOODS AND SERVICE TAX DEPARTMENT, KARAMANA, THIRUVANANTHAPURAM, KERALA-695002. 7 THE NODEL OFFICER FOR CENTRAL GST GOODS AND SERVICE TAX DEPARTMENT, KARAMANA, THIRUVANANTHAPURAM, KERALA-695002. BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL BY ADV.P.R. SREEJITH, SC, BY ADV.P.R. SREEJITH, GSTN OTHER PRESENT: GP. SMT. M.M. JASMINE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT 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 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 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.

I may also observe that if the petitioner applies within two weeks after receiving this judgment, the Nodal Officer will consider it 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 it to take credit of the input tax available at the time of its migration. With these directions, I dispose of the Writ Petition. DAMA SESHADRI NAIDU JUDGE jjj APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE RETURN FILED BY THE PETITIONER FOR THE MONTH OF JUNE SHOWING THE CENVAT CREDIT FOR THE MONTHS OF MAY AND JUNE 2017 DATED 10.07.2017. EXHIBIT P2OF THE LETTER GIVEN BY THE PETITIONER TO THE CHIEF COMMISSIONER, CENTRAL BOARD OF EXCISE AND CUSTOMS, COCHIN COMPLAINING THE NON RECEIPT CENVAT CREDIT DATED 26.12.2017 EXHIBIT P3OF THE MAIL SENT BY THE PETITIONER THROUGH THE CONSULTANCY TO THE GST HELP LINE FOR OBTAINING THE CENVAT CREDIT DATED 26.12.2017. EXHIBIT P4OF THE REPLY RECEIVED BY THE PETITIONER FROM THE GST HELP LINE DATED 26.12.2017 EXHIBIT P5OF THE REPLY RECEIVED FROM THE GST HELP LINE TO THE REMINDER OF THE PETITIONER DATED 11.01.2018. EXHIBIT P6OF THE SCREEN SHOT OF THE REPLY RECEIVED FROM THE HELPLINE BY THE PETITIONER. EXHIBIT P7OF THE CIRCULAR NO.39/13/2018-GST DATED 03.04.2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P8OF THE JUDGMENT IN WP(C) NO.20978 OF 2018 DATED 28.06.2018 OF THE HON'BLE HIGH COURT OF KERALA.