Union Of INDIA vs. M/S. At And S INDIA PVT LTD - Karnataka High Court, 01 April 2021

Heard together (2 matters)

W.A.NO.461/2020

W.P.NO.5004/2020

Read from the judgment's own cause title. This page is filed under one of them.

Cause title — parties, addresses and appearances

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2021 PRESENT THE HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA AND THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY W.A.NO.461/2020(T-RES) BETWEEN 1. UNION OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE THROUGH ITS SECRETARY (REVENUE) NORTH BLOCK NEW DELHI – 110 001. 2. THE IT GRIEVANCE REDRESS COMMITTEE THE GST COUNCIL, 5TH FLOOR, TOWER-II JEEVAN BHARTHI BUILDING JANPATH ROAD, CONNAUGHT PL NEW DELHI-110 001. 3. THE PRINCIPAL COMMISSIONER OF CENTRAL GST AND CENTRAL EXCISE VINAYA MARGA SIDDHARTHA NAGAR MYSORE – 570 011. 4. THE ADDITIONAL COMMISSIONER OF CENTRAL TAX VINAYA MARGA SIDDHARTHA NAGAR MYSORE – 570 011. 5. THE ASSISTANT COMMISSIONER OF CENTRAL TAX VINAYA MARGA SIDDHARTHA NAGAR MYSORE – 570 011. ...APPELLANTS (BY SMT.M.R.VANAJA, ADVOCATE) 2 AND 1. M/S. AT AND S INDIA PVT. LTD., 12A, INDUSTRIAL AREA NANJANGUD, MYSORE-571 301. 2. STATE OF KARNATAKA THROUGH ITS PRINCIPAL SECRETARY FINANCE DEPARTMENT, VIDHANA SOUDHA BANGALORE-560 001. ...RESPONDENTS (BY SRI HEMANT KUMAR, AGA) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961 PRAYING TO ALLOW THE WRIT APPEAL AND SET ASIDE THE ORDER DATED 10.03.2020 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON’BLE COURT IN W.P.NO.5004/2020. THIS WRIT APPEAL COMING ON FOR ORDERS THIS DAY, SATISH CHANDRA SHARMA J., DELIVERED THE FOLLOWING:

JUDGMENT

The present writ appeal is arising out of the order dated 10.03.2020 passed by the learned Single Judge in WP No.5004/2020 (M/s. AT and S India Pvt. Ltd. and another v. Union of India and others).

The facts of the case reveal that respondent No.1 before this Court has challenged the order dated 31.01.2020 issued by the Principal Commissioner of Central GST and Central Excise whereby the request of the petitioner for availing TRAN-1 credit has been rejected as not covered under the extant provisions of law to allow TRAN-1 credit again as per GST Council Secretariat’s letter dated 12.12.2019 and to direct

respondents-4 and 5 to permit him to file revised Form GST TRAN-1 manually or otherwise to carry forward credit of Rs.1,16,45,079/- along with interest.

Number of cases were preferred on the same issue and the matter was adjudicated by the Division Bench of this Court in WA No.18/2020 and connected matters. The Division Bench in paragraph-49 to 56 has held as under:

“49. In this context, it would also be useful to place [(2019(29) G.S.T.L 584 (Del.)] and has ultimately granted the very relief that was granted by the Punjab and Haryana High Court in Adfert Technologies (supra) by prescribing the timeframe within which the assessees could have filed, either electronically or manual statutory forms on or before 31.12.2019. Further, the respondents have given the liberty to verify the genuineness of the merits of the case in accordance with law.

51.

We have adverted to the background and the historical perspective and the manner in which Rule 117 of the Rules was worded initially and as to how with the passage of time, subsequent to 27.12.2017, amendments were made to the said Rule by extending the time for the purpose of submitting the declaration electronically in Form GST TRAN-1. Ultimately, insertion of sub-rule (1A) to Rule 117 with effect from 10.09.2018 was effected. Even thereafter, the sub-rule was amended not once, but thrice so as to extend the time from 31.03.2019 to 31.03.2020 and ultimately, it was extended to 31.08.2020. The last extension upto 31.08.2020 was in exercise of the powers conferred under Section 168A of the Act by insertion of Section 117(1A) of the Act by way of an amendment. This was on the recommendation of the GST Council whereby, earlier Notification No.35/2020- CT dated 03.04.2020 was amended. This was done by extending the time period granted upto 30.06.2020 by the Notification dated 03.04.2020 issued in the interregnum. In this context, it would be useful to refer to Section 172 of the Act, which reads as under: “Removal of difficulties.

172.

(1) If any difficulty arises in giving effect to any provisions of this Act, the Government may, on the recommendations of the Council, by a general or a special order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act or the rules or regulations made thereunder, as may be necessary or expedient for the purpose of removing the said difficulty:

PROVIDED that no such order shall be made after the expiry of a period of three years from the date of commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be, after it is made, before each House of Parliament."

52.

Therefore, on a careful consideration of the judgments cited by the learned senior counsel and learned counsel for respondents in light of the order impugned, we find that the learned single Judge has been persuaded by the judgment passed in Adfert Technologies in coming to the conclusion that the assessees herein must be granted relief by giving them another opportunity to file/revise TRAN-1 either electronically or manually on or before 31.12.2020. We find that the reasoning of the learned single Judge and the relief granted would not call for any interference except to the extent of extending the time within which they would now have to file TRAN-1. The said time-frame has now expired even after successive extensions on 30.08.2020. Therefore, the respondents-assessees are permitted to file/revise TRAN-1 either electronically or manually on or before 31.03.2021. The revenue is at liberty to verify the genuineness or the merits of the claim in accordance with law.

53.

concerned, learned counsel, Sri.Jeevan J.Neeralagi, submitted that in this case, the respondent-assessee filed GST TRAN-1 on 16.09.2017 and revised GST TRAN-1 on 29.01.2017, which was the last date for filing of the same. Either in the initial filing or in the revised filing, the respondent-assessee did not avail of CENVAT credit

for the period from April 2016 to June 2017. Hence, they preferred Writ Petition No.26410 of 2019 (T-RES) and have now been granted the benefit of the learned single Judge’s order.

54.

Learned counsel, Sri.Jeevan J.Neeralagi submitted, this case is not a case where there was belated filing of TRAN-1 or revised TRAN-1, but a case where the said filings took place in time, but without adverting to the CENVAT credit facilities at all. In the circumstances, no fresh opportunity can be given to the respondent to once again file TRAN-1 returns. That in this case, the question of there being any technical difficulty on the common portal does not arise at all and therefore, learned single Judge ought to have dismissed the writ petition.

55.

concerned, we do not find that the said case could be considered independent of the other cases. The relief granted by the learned single Judge to the respondent- assessee in that case is similar to the one granted to the assessees in the said cases also. This is because the object and purpose is to give the benefit of CENVAT credit earned under the erstwhile tax regime.

56.

Hence, we find no reason to interfere with the order of the learned single Judge and hence, Writ Appeal No.56 of 2020 and Writ Appeal Nos.18, 104, 105, 19, 206, 207, 208, 209, 210, 23, 27, 294, 38, 51, 56, 75, 292, 293, 295, 296, 298 and 556 of 2020 stand dismissed.”

The writ appeals preferred by the Union of India have been dismissed. However, as the period to file TRAN-1 has been expired on 30.08.2020, the respondents-assessees were granted time to file/revise TRAN-1 up to 31.03.2021, meaning thereby more than six month’s time was granted to the assessees therein.

Resultantly, while dismissing the present writ appeal, 30 days time is granted to the assessees to submit their GST TRAN-1 from today.

With the aforesaid, the writ appeal stands dismissed. No orders as to costs. Pending IAs., if any, shall stand disposed of. JUDGE JUDGE TL