Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH TUESDAY, THE 30TH DAY OF JANUARY 2024 / 10TH MAGHA, 1945 WP(C) NO. 3704 OF 2024 PETITIONER:
M/S. VERSUNI INDIA HOME SOLUTIONS LIMITED, (FORMERLY PHILIPS DOMESTIC APPLIANCES INDIA LIMITED), (EARLIER PREETHI KITCHEN APPLIANCES PVT LTD) C/O. LOGIWIZ LOGISTICS INDIA P LTD, DOOR NEW NO. XI/686, OLD NO.X/40B, POTTEKATTU BUILDING, HMT ROAD, KALAMASSERY, NEAR TOSHIBA JUNCTION, COCHIN, REPRESENTED BY ITS SENIOR MANAGER SRI. SAHUBAR SHATHIK, PIN – 683503 BY ADVS.
SRI. AJI V. DEV SRI. ALAN PRIYADARSHI DEV SRI. S. SAJEEVAN RESPONDENTS:
1 THE DEPUTY COMMISSIONER OF STATE TAX -6, SPECIAL CIRCLE - II, THEVARA, ERNAKULAM, PIN – 682015.
2 THE STATE TAX OFFICER, TAXPAYER SERVICES CIRCLE, THRIKKAKARA, STATE GST DEPARTMENT, CIVIL STATION, KAKKANAD,ERNAKULAM, PIN – 682030.
3 THE GOODS AND SERVICES TAX NETWORK, REPRESENTED BY ITS CHAIRMAN, EAST WING, 4TH FLOOR, WORK MARK -1, AEROCITY, NEW DELHI, PIN – 110037.
4 THE CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS, REPRESENTED BY ITS CHAIRMAN, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI, PIN – 110001.
5 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.
6 UNION OF INDIA, REPRESENTED BY ITS SECRETARY (REVENUE), MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI, PIN – 110001.
BY ADV SRI. R. HARISHANKAR SMT. RESHMITA RAMACHANDRAN - GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 3704 OF 2024 2 DINESH KUMAR SINGH, J.
-------------------------- W.P.(C) No. 3704 of 2024 ------------------------- Dated this the 30th day of January, 2024 JUDGMENT 1.
The present writ petition has been filed by the petitioner impugning the order dated 30.10.2023 whereby the petitioner’s claim for transitional credit for an amount of Rs. 20,22,652/- has been declined and for the same amount of tax, interest and penalty of Rs. 42,57,766/- have been levied by the impugned order.
2.
The learned Counsel for the petitioner submits that the petitioner could not file Form 66 within the time limit i.e. 01.10.2022 to 30.11.2022 for the reason that, during this period the petitioner did not have the GST registration number and later the petitioner had applied for GST registration. In the absence of the GST registration, the petitioner was unable to submit Form 66 to claim the transitional credit. The petitioner was issued show cause notice in Exhibits P-7 and P-10. The petitioner filed his reply to the said show cause notices that; because of an inadvertent error occurred while filing the TRAN – 1 and TRAN – 2 forms and there being no provision in GSTR – 3B to correct it, the petitioner could not file thereafter Form 66 to claim the trans credit.
WP(C) NO. 3704 OF 2024 3 3.
Petitioner had filed TRAN – 2 Form for the financial year 2017- 18. the petitioner had admitted the irregularity, however, he could not rectify the irregularity till the order came to be passed. Section 140 (3) of the CGST Act read with Rule 117 (4) (a) (i) of the CGST Rules, 2017 provides for carrying forward transitional credit in TRAN – 2 Form. The petitioner, admittedly, did not file the correct form within the time frame prescribed and, therefore, the petitioner was not entitled to claim the trans credit of Rs. 20,22,652/- which has been denied vide the impugned order on which interest and penalty has been levied.
4.
There is a provision of appeal under Section 107 of the CGST/SGST Act against the impugned order. Instead of approaching the appellate authority as prescribed under the statute, the petitioner has approached this Court in this writ petition under Article 226/227 of the Constitution of India. This Court does not find that the respondent assessing authority has committed any error of jurisdiction or manifest error of law which warrants this Court to entertain this writ petition when the remedy of statutory appeal is available to the petitioner.
5.
In view thereof, this writ petition is hereby dismissed.
However, the petitioner is permitted to enable the remedy of
WP(C) NO. 3704 OF 2024 4 appeal, if he so advised against the impugned order. If the petitioner files the appeal within a period of three weeks against the impugned order in Exhibit P-13, the same shall be considered expeditiously by the appellate authority on merit without going into the question of limitation.
Sd/- DINESH KUMAR SINGH JUDGE Svn
WP(C) NO. 3704 OF 2024 5 APPENDIX OF WP(C) 3704/2024 PETITIONER’S EXHIBITS EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF INCORPORATION ISSUED BY THE OFFICE OF THE REGISTRAR OF COMPANIES PURSUANT TO NAME CHANGE OF THE COMPANY DATED 11.07.2023 EXHIBIT P2 TRUE COPY OF THE GST CERTIFICATE OF REGISTRATION OF THE PETITIONER UNDER THE LEGAL NAME PHILIPS DOMESTIC APPLIANCES INDIA LIMITED DATED 09.07.2021 EXHIBIT P3 TRUE COPY OF THE AMENDED GST CERTIFICATE OF REGISTRATION OF THE PETITIONER AFTER EFFECTING NAME CHANGE UNDER THE LEGAL NAME VERSUNI INDIA HOME SOLUTIONS LIMITED DATED 26.07.2023 EXHIBIT P4 TRUE COPY OF THE GST REGISTRATION CERTIFICATE OF PREETHI KITCHEN APPLIANCES PRIVATE LIMITED DATED 16.07.2018 EXHIBIT P5 TRUE COPY OF THE ORDER OF THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI DATED 13.05.2021 EXHIBIT P6 TRUE COPY OF THE CERTIFICATE OF CANCELLATION OF REGISTRATION DATED 29.04.2022 EXHIBIT P7 TRUE COPY OF THE FORM GST ASMT-10 DATED 08.07.2022 EXHIBIT P8 TRUE COPY OF THE REPLY FILED BY THE PETITIONER DATED 19.07.2022 EXHIBIT P9 TRUE COPY OF THE REPLY FILED BY THE PETITIONER IN FORM GST ASMT -11 DATED 25.07.2022 EXHIBIT P10 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 15.09.2023 EXHIBIT P11 TRUE COPY OF THE REPLY DATED 16.10.2023
WP(C) NO. 3704 OF 2024 6 EXHIBIT P12 TRUE COPY OF THE FINAL RETURN IN FORM GSTR - 10 DATED 13.07.2022 EXHIBIT P13 TRUE COPY OF THE ORDER OF ASSESSMENT DATED 30.10.2023 EXHIBIT P14 TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN UNION OF INDIA V. FILCO TRADE CENTRE PVT LTD DATED 22.07.2022 EXHIBIT P15 TRUE COPY OF THE CIRCULAR NO. 182/ 14/2022- GST DATED 10.11.2022 EXHIBIT P16 TRUE COPY OF THE JUDGMENT OF THE HON'BLE MADRAS HIGH COURT IN SRI RENGA TIMBERS V. THE ASSISTANT COMMISSIONER, CENTRAL EXCISE DATED 17.08.2023 EXHIBIT P17 TRUE COPY OF THE JUDGMENT OF KERALA HIGH COURT IN G&C INFRA INNOVATIONS V. UOI DATED 07.03.2022 EXHIBIT P18 TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT UNICHEM LABORATORIES LTD. V.
COLLECTOR OF CENTRAL EXCISE DATED 03.09.2002 EXHIBIT P19 TRUE COPY OF THE JUDGMENT OF HON'BLE MADRAS HIGH COURT IN M/ S. CHENNAI SILKS V. THE ASSISTANT
COMMISSIONER,
TIRUPUR
DATED 12.10.2023