E.M.S. Memorial Co-Operative Hospital And Research Centre v. Union Of INDIA - Kerala High Court, 8 Aug 2022

Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.

MONDAY, THE 8TH DAY OF AUGUST 2022 / 17TH SRAVANA, 1944 WP(C) NO. 19302 OF 2019 PETITIONER:

E.M.S. MEMORIAL CO-OPERATIVE HOSPITAL AND RESEARCH CENTRE PERINTHALMANNA, MALAPPURAM DISTRICT 679 322, REPRESENTED BY ITS GENERAL MANAGER.

BY ADVS.K.M.SATHYANATHA MENON SHRI.GANESAN M.

RESPONDENTS:

1 UNION OF INDIA,NORTH BLOCK, NEW DELHI-110 001, REPRESENTED BY SECRETARY, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE).

2 GOODS AND SERVICES TAX COUNCIL,GST COUNCIL SECRETARIAT, 5TH FLOOR, TOWER II,JEEVAN BHARATI BUILDING, JANPATH, CONNAUGHT PLACE, NEW DELHI REPRESENTED BY ITS SECRETARY.

3 THE GOODS AND SERVICE TAX NET WORK,GSTN, EAST WING, WORK MARK-1, 4TH FLOOR, AEROCITY, INDIRA GANDHI INTERNATIONAL AIR PORT, NEW DELHI-110037, REPRESENTED BY ITS MANAGING DIRECTOR.

4 THE PRINCIPAL COMMISSIONER,CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, CENTRAL REVENUE BUILDING, IS PRESS ROAD, COCHIN-682 018.

5 THE COMMISSIONER,STATE TAXES, GOODS AND SERVICES TAX DEPARTMENT, TAX TOWER, KARAMANA, THIRUVANANTHAPURAM-695 002.

6 COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE KOZHIKODE COMMISSIONERATE, C.R. BUILDING, MANACHIRA, CALICUT-673 001.

W.P.(C)No.19302/2019 2 7 THE STATE TAXES OFFICER,GST DEPARTMENT, PERINTHALMANNA-679 322.

BY ADVS.Smt.KRISHNA S., CGC- R1 & R2 SRI.P.R.SREEJITH,SC,GOODS AND SERVICES TAX NETWORK SRI.P.R.SREEJITH, SC, CENTRAL BOARD OF EXCISE AND CUSTOMS -R3, R4 & R6 OTHER PRESENT:

DR. THUSHARA JAMES (SR GP)-R5 & R7 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C)No.19302/2019 3 JUDGMENT This Writ Petition relates to the issue of availing Transitional Credit while migrating to the Goods & Services Tax regime. It is not in dispute before me that the issue raised in this writ petition stands completely addressed by the judgment of the Supreme Court in Union of India & anr. v. Filco Trade Centre Pvt. Ltd. & anr.; 2022 SCC OnLine SC 912.

Having regard to the issues faced by taxpayers while filing/revising declarations and availing Transitional Credit, while migrating to the GST regime, the Honourable Supreme Court by order dated 22.7.2022 in Filco Trade Centre (supra), has issued the following directions:

“1. Goods and Service Tax Network (GSTN) is directed to open common portal for filing concerned forms for availing Transitional Credit through TRAN-1 and TRAN-2 for two months i.e. w.e.f. 01.09.2022 to 31.10.2022.

2. Considering the judgments of the High Courts on the then prevailing peculiar circumstances, any aggrieved registered assessee is directed to file the relevant form or revise the already filed form irrespective of whether the taxpayer has filed writ petition before the High Court or whether the case of the taxpayer has been decided by Information Technology Grievance Redressal Committee (ITGRC).

W.P.(C)No.19302/2019 4 3. GSTN has to ensure that there are no technical glitch during the said time.

4. The concerned officers are given 90 days thereafter to verify the veracity of the claim/transitional credit and pass appropriate orders thereon on merits after granting appropriate reasonable opportunity to the parties concerned.

5. Thereafter, the allowed Transitional credit is to be reflected in the Electronic Credit Ledger.

6. If required GST Council may also issue appropriate guidelines to the field formations in scrutinizing the claims.” The above directions of the Honourable Supreme Court shall apply to the case on hand as well. The Writ Petition is therefore disposed of on the above terms.

Sd/- GOPINATH P.

JUDGE acd

EXHIBIT P2 TRUE COPY OF THE PETITION NO.EMCH/IA/57/2018 DATED 23.4.2018 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE PETITION NO.EMCH/IA/57/2018 DATED 23.4.2018 FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE PETITION NO.EMCH/IA/57/2018 DATED 2.4.2018 FILED BY THE PETITIONER BEFORE THE JOINT COMMISISONER (KOZHIKODE REGION), CENTRAL GST DEPARTMENT, MANANCHIRA, CALICUT.

EXHIBIT P2 TRUE COPY OF THE PETITION NO.EMCH/IA/57/2018 DATED 23.4.2018 FILED BY THE PETITIONER BEFORE THE 7TH RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE PETITION NO.EMCH/IA/57/2018 DATED 23.4.2018 FILED BY THE PETITIONER BEFORE THE DEPUTY COMMISSIONER, STATE GST, MALAPPURAM.

EXHIBIT P3 TRUE COPY OF THE FORM GST TRAN 1 SUBMITTED BY THE PETITIONER ALONG WITH EXT-P2 TO EXT-P2(D) DATED 23.4.2018.

EXHIBIT P4 TRUE COPY OF THE ACKNOWLEDGEMENT DATED 27.4.2018 ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE COMMUNICATION C.NO.IV/16/03/2018-TECH DATED 7.5.2018 BETWEEN ASSISTANT COMMISSIOENR (TECH) AND 6TH RESPONDENT THAT WAS SERVED UPON THE PETITIONER.

W.P.(C)No.19302/2019 6 EXHIBIT P6 TRUE COPY OF THE COMMUNICATION C.NO.IV//16/2/20182 GST/192 DATED 4.5.2018 ISSUED BY THE DEPUTY COMMISSIONER CENTRAL TAX AND CENTRAL EXCISE OFFICE CALICUT TO THE PETITIONER.

EXHIBIT P7 TRUE COPY OF THE RERPESENTATION NO.EMCH/IA/13/2019 DATED 26.6.2019 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION NO.EMCH/IA/13/2019 DATED 26.6.2019 FILED BY THE PETITIONER BEFORE THE DEPUTY COMMISSIONER, STATE GST, MALAPPURAM.

EXHIBIT P7 TRUE COPY OF THE RERPESENTATION NO.EMCH/IA/13/2019 DATED 26.6.2019 FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION NO.EMCH/IA/13/2019 DATED 26.6.2019 FILED BY THE PETITIONER BEFORE THE JOINT COMMISSIONER (KOZHIKODE RETGION), CENTRAL GST DEPARTMENT, MANANCHIRA, CALICUT.

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION NO.EMCH/IA/13/2019 DATED 26.6.2019 FILED BY THE PETITIONER BEFORE THE 7TH RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE POSTAL RECEIPT ISSUED FROM POSTAL DEPARTMENT IN PROOF TO EXT-P7 TO EXT-P7(D).

EXHIBIT P9 TRUE COPY OF THE REPRESENTATION NO.EMCH/IA/58/2019 SUBMITTED BY THE PETITIONER BEFORE IST RESPONDENT DATED 26.6.2019.

EXHIBIT P9 TRUE COPY OF THE REPRESENTATION NO.EMCH/IA/58/2019 DATED 26.6.2019 SUBMITTED BY THE PETITIONER BEFORE THE PRINCIPAL SECRETARY, FINANCE (GST WING), FINANCE (REV-1) DEPARTMENT, 4TH LEVEL, A- WING, DELHI SECRETARIAT, I.P. ESTATE, NEW DELHI-110 002.

W.P.(C)No.19302/2019 7 EXHIBIT P9 TRUE COPY OF THE REPRESENTATION NO.EMCH/IA/58/2019 DATED 26.6.2019 SUBMITTED BY THE PETITIONER BEFORE THE GST COUNCIL, THROUGH ITS CHAIRPERSON, DEPARTMENT OF FINANCE, NORTH BLOCK, NEW DELHI-110 001.

EXHIBIT P10 TRUE COPY OF THE POSTAL RECEIPT ISSUED FROM POSTAL DEPARTMENT IN PROOF TO EXT-P9 TO EXT-P9(B).

EXHIBIT P11 TRUE COPY OF THE COMMUNICATION C.NO.IV/16/68/2019-TECH/2813 DATED 3.7.2019 ISSUED BY THE ASSISTANT COMMISSIONER (TECH) FROM THE OFFICE OF THE 4TH RESPONDENT TO THE PETITIONER.

EXHIBIT P12 TRUE COPY OF THE COMMUNICATION NO.IV/16/22/2019 GST TECH/1481 DATED 4.7.2019 ISSUED FROM THE OFFICE OF THE 6TH RESPONDENT TO THE PETITIONER.

EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 11.7.2018 IN WPC NO.5032/2018 OF THIS HON'BLE COURT.

EXHIBIT P14 TRUE COPY OF THE ORDER RENDERED BY THE KARNATAKA HIGH COURT IN SHAKTI TECHNOLOGIES V. UNION OF INDIA AND OTHERS WRIT PETITION NO.14394/2018 (T-RES) DATED 22.10.2018.

EXHIBIT P15 TRUE COPY JUDGMENT DATED 7.2.2019 IN OPTIVAL HEALTH SOLUTIONS PRIVATE LIMITED AND ANOTHER V. UNION OF INDIA & OTHERS [W.P.NO.18879 (W) OF 2018] OF THE HIGH COURT OF CALCUTTA.