M/S Krishnan Nair Time And Jewels PVT LTD vs. Deputy Commissioner -Cum Nodal Officer
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS TUE AY, THE 04TH DAY OF FEBRUARY 2020 / 15TH MAGHA, 1941 WP(C).No.35404 OF 2019(A) PETITIONER: M/S KRISHNAN NAIR TIME AND JEWELS PVT LTD YMCA ROAD, CENTRAL JUNCTION, KOTTAYAM 686 001 REPRESENTED BY ITS MANAGING DIRECTOR, SRI.K. VENUGOPAL BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENT: DEPUTY COMMISSIONER -CUM NODAL OFFICER OFFICER OJF COMMISSIONER OF CGST GST BHAVAN, PRESS CLUB ROAD, STATUE, THIRUVANANTHAPURAM-695 002 UNION OF INDIA, DEPARTMENT OF REVENUE, CENTRAL BOARD OF EXCISE & CUSTOMS NEW DELHI – 110 001, REPRESENTED BY ITS SECRETARIAT TO GOVERNMENT, MINISTRY OF FINANCE. GOODS AND SERVICES TAX COUNCIL 5TH FLOOR, TOWER II, JEEVAN BHARATI BUILDING JANPATH ROAD, CONNAUGHT PLACE, NEW DELHI – 110037, REPRESENTED BY ITS MANAGING DIRECTOR GOODS AND SERVICES TAX NETWORK PVT. LTD EAST WING, 4TH FLOOR, WORLD MARK – 1, AEROCITY, NEW DELHI – 110 037, REPRESENTED BY ITS MANAGING DIRECTOR COMMISSIONER OF CENTRAL GOODS AND SERVICE TAX DEPARTMENT OF REVENUE, CENTRAL BOARD OF EXCISE AND CUSTOMS NEW DELHI – 110 001 PRINCIPAL NODAL OFFICER CENTRAL EXCISE, CUSTOMS & SERVICE TAX CENTRAL REVENUE BUILDING, I S PRESS ROAD, COCHIN – 682 018. WP(C).No.35404 OF 2019(A) 2 STATE TAX OFFICER STATE GOODS AND SERVICES TAX DEPARTMENT 2ND CIRCLE, CIVIL STATION, KOTTAYAM – 686 575 SRI.P.R.SREEJITH, SC FOR R1, R2 TO R6, SRI.P.VIJAYAKUMAR, ASGI FOR R2, DR.THUSHARA JAMES, GOVT.PLEADER FOR R7 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.35404 OF 2019(A) 3 ALEXANDER THOMAS, J. =========================== WP(c) NO. 35404/2019 ============================================== Dated this the 4th day of February 2020 JUDGMENT The case set up in this writ petition (civil) are as follows:-That the petitioner is a company conducting business under the name and style 'Krishnan Nair Time & Jewels Pvt. Ltd; and it was a registered dealer under the KVAT Act 2003 before 7th respondent, filed returns until 30.06.2017 and Ext.P1, P1(a) closing stock inventory in accordance with law. While on 22/11/2017, petitioner was trying to file Tran-1 under the Central Goods and Services Tax Act and Rules 2017, for carry forward of input tax credit of Rs.9,15,198.29/-, happens to be submitted as 'zero' claim of input tax credit under ARN No.AA3212170002613 in GSTIN Portal maintained by the 4th respondent, evidenced by Ext.P2. In accordance with Ext.P3 notification issued by the 2nd respondent, petitioner filed Ext.P4 request before the 1st respondent, marking copy of the same to the Commissioner of Commercial Taxes, Thiruvananthapuram. Petitioner also submitted Ext.P5 request before the Dy. Commissioner (Tech.), office of the Commissioner of CGST and central Excise, Kottayam. In Ext.P5(a) this Hon'ble Court directed to permit filing of Tran-1 either electronically or manually within a time
WP(C).No.35404 OF 2019(A) 4 frame. Now the grievances of the petitioner, Ext.P4 request of petitioner sent to the 1st respondent as per Ext.P7, which was rejected as per Ext.P8. At the Same time now the 2nd respondent issued Ext.P9 notification, whereby amended Rule 117 of the CGST action of respondents in rejecting Ext.P4 is in gross violation of Article 14 and 301 of the Constitution of India. The petitioner is deprived of the facilities in GST Portal managed by the 4th respondent. Hence the petitioner is having no other remedy other than to approach this Court for redressal of its remedies under Article 226 of the Constitution, with a prayer for issuance of proper directions deemed fit to the facts and circumstances of the case, for facilitation filing of correction of TRAN-1 by the respondents, in the interest of natural justice.
The main contentions urged in this writ petition are as follows: a) Petitioner is legally entitled for carry forward of input tax credit for a sum of Rs.9,15,198.29/- in accordance with Rule 117 of the Transitional provisions in the CGST Rules 2017. It is only by system error in the GSTN portal, petitioner happens to file Tran-1 with a claim of 'Zero' as against Rs.9,15,198.29/-. Hence it is a fit case to consider Ext.P4 and P5 by respondents in accordance with Ext.P3 and P9 notification issued by the 2nd respondent. For this reason alone, Ext.P8 communication
WP(C).No.35404 OF 2019(A) 5 issued by the 1st respondent is liable to be quashed and proper direction warranting to be issued to the 1st respondent from this Court. b) On similar set of fact, this Court passed Ext.P5(a) judgment and the Hon'ble Punjab & Haryana High Court, passed Ext.P6 judgment for facilitating submission of Tran-1 and for correction of incorrect Tran-1 submitted by traders for carry forward of input tax credited as a transitional provision to the enactment of new Act, the Goods and Services Tax Act and Rules in India as a common law. It is pertinent to note that only those dealers who wants carry forward of input tax credit available, needs to file Tran-1. From this itself it can be seen that the filing of Ext.P2 is under technical glitches in the GSTN Portal. For this reason also direction warranting to be issued to respondents for correcting the incorrect Tran-1 happens to be filed. Hence direction may be issued to re-open the GSTN Portal for filing the FORM GST TRAN-1, within a time limit fixed by this Court. c) Section 140 of the CGST Act 2017 read with Rule 117 of the CGST Rules, 2017 provides for entitlement of CENVAT credit carry forwarded from the appointed day. Section 2(10) of the CGST Act, 2017, defines 'Appointed day' as the date on which the provision of this Act shall come into force. Since the time limit specified in Section 140 of GST Act read with Rules 117 is quite inadequate, challenging the said
WP(C).No.35404 OF 2019(A) 6 provisions in this writ petitions, which may please be allowed, in the interest of justice. d) Unless the mistake in Tran-1 is got corrected, petitioner will be put into greater hardships and damages. Hence proper directions fit to the facts and circumstances may please be issued from this Hon'ble Court, to the ends of justice.
It is in the light of these averments and contentions, the petitioner has filed this writ petition with the following prayers.
To issue a writ in the nature of certiorari or any other appropriate writ or order in quashing Section 140 of the SGST and CGST Act, 2017, which is in violation to Article 14 and 301 of the Constitution of India. 2. to issue a writ in the nature of mandamus or any other appropriate writ, or order directing the respondents to provide the petitioner a facility to re-file/correct incorrect filing of FORMGST TRAN-1 by re-opening the online portal to the petitioner, within the time limit; 3. to call the records from the 1st respondent, leading to issuance of Ext.P8 communication and to issue a writ in the nature of certiorari or any other appropriate.
Heard Sri. Tomson T. Emmanuel, learned counsel appearing for the petitioner and Sri.P.R. Sreejith, learned standing counsel for Central Board of Indirect Taxes, Government of India, appearing for respondents 1 and 3 to 6, Sri. P. Vijayakumar, learned Assistant Solicitor General, appearing for R2 (Union of India) and Dr. Thushara James, learned Government Pleader appearing for R7. 5. Both sides have made submissions in the matter. Sri. Tomson
WP(C).No.35404 OF 2019(A) 7 T. Emmanuel, learned counsel for the petitioner and Sri. P.R. Sreejith, learned standing counsel for the Central Board of Indirect Taxes, Government of India, appearing for official respondents, 1 and 3 to 6 have made their submissions in tune with their respective pleadings. In that regard, it is noted that respondents 3 to 6 have now filed statement dated 28/01/2020 in this WP(c).
The learned standing counsel for the Central Board of Indirect Taxes, Government of India, appearing for the above said official respondents concerned has opposed the plea made by the petitioner.
After hearing both sides it is seen that the facts and circumstances are covered in the directions and orders already passed by this Court in similar cases, as in judgment dated 19/12/2019 rendered in WP(c) 32968/2019 and para 4 thereof of the said judgment reads as follows: Others [(2019) 68 GSTR 340 (Delhi)], and the decision of the permit the petitioners therein to file the TRAN – 1 Form, either electronically or manually on or before 31.12.2019 without prejudice to the right of the respondent statutory authorities to verify the genuineness of the claim of the petitioners. Taking cue from the said judgment, and finding that in the instant case also there is no dispute with regard to the attempt made by the petitioner to log into the system on or before 27.12.2017, I allow this writ petition by quashing the impugned communications, and directing the respondents to permit the petitioner to revise his TRAN-1 Forms either electronically or manually on or before 31.12.2019. While the respondents shall attempt to facilitate the revision of the TRAN-1 Forms electronically by and Others [(2019) 68 GSTR 340 (Delhi)], as well as the judgment defects cited by the respondents. In this regard, the petitioner's counsel had also placed reliance on Ext.P6 judgment rendered by the Punjab & Haryana High Court on 04/11/2019 on CWP No.30949/2018 (O&M) in a case in Adfert Technologies Pvt. Ltd Vs Union of India & Others.
Taking into consideration, the above said views as well as of various other High Courts and also in view of the clear finding that in the instant case, there is no dispute with regard to the attempt made by the petitioner to log into the system within the time limit concerned, it is ordered that the impugned Rejection Order as per Ext.P8 etc, will stand quashed. Consequently it is ordered that the competent Authority among official respondents 1 and 3 to 6 shall take steps to immediately permit the petitioner to revise their TRAN – 1 Forms either electronically or manually without much delay, preferably within a period of 2 months from the date of production of a certified copy of this judgment or within such time limit that may be appropriately fixed by the competent Authority among the above said respondents as they deem fit and proper in the facts and circumstances of this case or within any shorter time limit. While the said respondents attempt to facilitate revision of TRAN-1 FORMS electronically by making necessary arrangements in the web portal, an insistence on manual filing shall be made, only on
WP(C).No.35404 OF 2019(A) 10 circumstances where electronic filing is not possible. In either events respondents are at liberty to verify the genuineness of the claims of the petitioner and the claim shall be denied only on the ground that the same was not earlier filed before the cut off date then insisted by the official respondents concerned. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. ALEXANDER THOMAS N //// PA TO JUDGE JUDGE
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.