M/S. A. Geeripai vs. Union Of INDIA - Kerala High Court, 29 March 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY ,THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941 WP(C).No. 8853 of 2019 PETITIONER: M/S. A. GEERIPAI, BROADWAY, ERNAKULAM 682 031 REPRESENTED BY ITS PARTNER S. SANATHANA PAI. BY ADV. SRI.S.ANIL KUMAR (TRIVANDRUM) RESPONDENTS: 1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY (REVENUE) MINISTRY OF FINANCE DEPARTMENT OF REVENUE, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI 110 001. 2 THE PRINCIPAL SECRTARY, FINANCE (GST WING) FINANCE (REV-1) DEPARTMENT 4TH LEVEL, A-WING, DELHI SECRETARIAT, I.P ESTATE, NEW DELHI 110 002. 3 GST COUNCIL, REPRESENTED BY ITS CHAIRPERSON,DEPARTMENT OF FINANCE, NORTH BLOCK, NEW DELHI 110 001 4 GOODS AND SERVICES TAX NETWORK, REPRESENTED BY ITS CHARMAN, EAST WING, 4TH FLOOR, WORLD MARK-1, AEROCITY, NEW DELHI 110 037 5 THE COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, TAX TOWERS, KARAMANA, THIRUVANANTHAPURAM 695 002. 6 THE DEPUTY COMMISSIONER/NODAL OFFICER, CENTRAL TAX AND CENTRAL EXCISE, ERNAKULAM DIVISION, CENTRAL EXCISE BHAVAN, KATHRIKADAVU, KOCHI 682 017. BY ADV. SRI.P.R.SREEJITH,SC,GOODS AND SERVICES TAX NETWORK ASGI. SRI. P. VIJAYAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

-2- WP(C).No. 8853 of 2019 JUDGMENT Heard Sri. S. Anil Kumar, the learned counsel for the petitioner and Sri.P.R Sreejith, the learned Standing Counsel for the 4th respondent.

The petitioner prays for the following reliefs: i. “declare the provisions of Rule 117 of Kerala Goods and Services Tax Rules, 2017 and Form GST FORM TRAN-1 as unconstitutional and ultravires of Article 14, Article 19(1) (g), Article 265, Article 279A and Article 300A of the Constitution of India. ii. Issue a writ of mandamus or any other writ, order or direction of like nature to the Respondents, directing the respondents to allow the Input tax credit on opening stock, as available on the opening day of GST laws (closing stock as on 30-06-2017), to which the petitioner is legally entitled, through the Electronic Credit Ledger and provide an opportunity for filing/uploading of Form GST TRAN-1- hard copy; iii. issue a writ of mandamus or any other writ, order or direction to the respondents to consider Ext.P6 and provide an effective opportunity to upload Form

-3- WP(C).No. 8853 of 2019 TRAN-1 under GST Laws; iv. issue order(s), direction(s), writs) or any other reliefs(s) as this Hon'ble Court deems fit and proper in the facts and circumstances of the case and in the interest of justice.”

The petitioner relies on Ext.P3 judgment and also the judgment in W.P.(C) No.41783 of 2018 dated 17.01.2019. The learned counsel for the respondent does not dispute that the judgment referred to above are decided in identical circumstances and the instant writ petition could be disposed of by following the said judgment. The writ petition is disposed of and the operative portion of the said judgment is excerpted for immediate reference, which reads as follows:

“5. So, in this case also, 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.

-4- WP(C).No. 8853 of 2019

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.” S.V.BHATTI JUDGE JS

-5- WP(C).No. 8853 of 2019 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE PROVISIONAL CERTIFICATE OF REGISTRATION UNDER THE ORDINANCE DATED 21-09-2017 EXHIBIT P2OF MONTHLY RETURN FOR JUNE, 2017 EXHIBIT P2 AOF MONTHLY RETURN FOR JULY, 2017 EXHIBIT P3OF THE CIRCULAR NO. 39/13/2018-GST DATED 03-04-2018 EXHIBIT P3 AOF ORDER NO. 1/2009-GST DATED 31-01-2019 EXHIBIT P4OF THE NOTIFICATION NO. 21/2017 DATED 23-11-2017 EXHIBIT P5OF JUDGMENT DATED 14-06-2018 OF THIS HON'BLE COURT IN W.P(C) 17348 OF 2018 EXHIBIT P6OF LETTER DATED 14-03-2019 ADDRESSED TO THE 6TH RESPONDENT.