Principal Commissioner Of CGST And Cx, Howrah Commissionerate vs. M/S. Bengal Hammer Industries PVT. LTD And Ors

1 OD-3 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURI ICTION ORIGINAL SIDE APOT No. 40 OF 2022 IA NO:GA/2/2022 WPO No. 240 OF 2019 PRINCIPAL COMMISSIONER OF CGST & CX, HOWRAH COMMISSIONERATE VS. M/s. BENGAL HAMMER INDUSTRIES (P) LTD. & ORS. BEFORE: The Hon'ble JUSTICE T. S. SIVAGNANAM AND The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA Date : 27th APRIL 2022. Appearance: Mr. Somnath Ganguly, Adv. Mr. Abhradip Maity, Adv. …for Appellant Mr. Arijit Chakrabarti, Adv. Mr. Nilotpal Chowdhury, Adv. Mr. Prabir Bera, Adv. …for respondents The Court : - This intra Court appeal by the department of CGST and Central Excise is directed against the order dated 16th March, 2020 in WPO 240 of 2019. The respondents/writ petitioners approached this Court with a prayer to allow the writ petitioners to file/upload in GST TRAN-I form and intended to 2 file TRAN-I form and/or revised TRAN-I form. The learned Single Bench directed the GST and authorities to open the portal for the writ petitioners till March 31, 2020. Aggrieved by such direction the revenue is before us by way of this appeal. Identical impugned order was subject matter of challenge at the instance of the revenue in MAT 552 OF 2020 etc. batch and by judgment dated 14.12.2021, the appeals were dismissed and directions were issued by slightly modifying the liberty granted to the respondents/writ petitioners. The operative portion of the judgment reads as follows :- “Be that as it may, we would wish to point out from the recent decision of the authorities to facilitate the writ petitioners to file a revise Form TRAN-1. The Court took into consideration the decision of Hon’ble Supreme Court in the case paragraph 51 of the judgment of the Hon’ble Supreme Court. Further, the Court the decision rendered by other Hon’ble High Courts had dismissed the appeal filed by the State and directed the revenue to enable the writ petitioners to file revise Form TRAN-1 by opening the portal within the time frame. Further time revise/ re-revise electronically, their respective declarations on Form GST TRAN-1 and TRAN-2 in the GST portal under the provisions of Central Goods Services Tax Act, 2017 and Uttar Pradesh Goods and Services Tax Act, 2017. The Division Bench after elaborately considering the factual matrix, notifications/circulars issued by the CBIC, noted that the CBEC itself Punjab and Haryana was challenged by the Union of India before the Hon’ble Supreme Court and the Special Leave Petition was dismissed. Thus, we are fully convinced that the decision which were rendered above have clearly brought out the difficulties faced by the assesses and also as to how the assesses having substantially complied with the requirement under law and having been entitled to credit on account of transition to the GST regime which is beyond the purview of the assessee and the assessee cannot be put to prejudice on account of technicalities. Thus, keeping the underlying principle in mind if the matter is examined then we are inclined to lean in 4 favour of the writ petitioners and affirm the directions issued by the learned Single Judge. We note from the directions issued by the learned Single Judge that the authorities have been directed to open the portal so that the assessee may be able to file their respective TRAN-1 return or revise return or re-revise 58 (P & H). In the said decision the Court while allowing the writ petition had granted two options one by directing opening of the portal and in case of non- opening of portal the writ petitioner/assessee will be entitled to make Com 195 (P & H). For the above reasons, the miscellaneous appeals and the connected applications are dismissed and the order and directions issued by the learned Single Judge is slightly modified by granting liberty to the writ petitioner/assessee to file individual tax credit in GSTR-3B Forms for the month of January 2022 to be filed in the month of February, 2022 and the concerned authority/Assessing Officer would be at liberty to verify the genuineness of the claim.”

5 Since the order impugned in this appeal is identically worded as that of the orders which were impugned in MAT 2 of 2022 etc. batch, the above order will squarely apply to the case on hand. Thus, by following the above decision, the appeals and connected applications are disposed of and the order and direction issued by the learned Single Bench is modified by granting liberty to the respondents/assessees to file individual tax credit in GSTR-3B Forms for the month of April 2022 in the month of May 2022 and the concerned authorities/assessing officer would be at liberty to verify the genuineness of the claim and proceed in accordance with law. (T. S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) GH/S.Kumar