Case Law Details
Ashoka Buildcon Ltd. Vs Union of India (Bombay High Court)
HC held that Petitioners are allowed to file and correct TRAN-1 and TRAN-2 Form. In case it is not possible to file the same online, it shall be filed manually.
FULL TEXT OF THE JUDGMENT/ORDER OF BOMBAY HIGH COURT
1 In all these matters, the Petitioners, either could not file TRAN-1 Form because of the technical glitches and/or the request for amendment/revision/modification of TRAN-
1 Form was not allowed.
2 The submissions were made by the learned Counsel for the Petitioners relying on the judgment of the Division Bench of this Court in the case of Heritage Lifestyles and Developers and Pvt. Ltd. Vs. The Union of India & Ors. 2020 SCC OnLine Bom 2397 that human errors can be allowed to be corrected and if because of technical glitches, TRAN-1 Form could not be filed, opportunity can be given to file the same.
3 Mr. Jately, learned Senior Advocate and other Advocates for the Department submit that the period prescribed under Section 117 of the CGST Act is mandatory. They relied upon the Division Bench judgment of this Court in the case of NELCO Ltd. Vs. Union of India and Ors. 2020 SCC OnLine Bom 437 and submit that after the time stipulated is over, the Petitioners do not have right to file TRAN-1 Form and or seek amendment/ revision/ modification of the said Form.
4 The Petitioners also relied upon the recent judgment of the Division Bench of this Court at Aurangabad (Coram – R.D. Dhanuka and S.G.Mehere,JJ.) in Writ Petition No.1690 of 2019 with connected Writ Petitions decided under the order dated 13th April 2022. The Division Bench of this Court, in the said matter at Aurangabad, passed the following order:
“10. It is not in dispute that the challenge to the virus of section 140 and Rule 117 is negatived by this Court in the case of Nelco Limited (supra).
11. Insofar as judgment of this court in the case of Heritage Lifestyles and Developers and Private Limited (supra) relied upon by the petitioners is concerned, a perusal of the said judgment indicates that the petitioner in that case was allowed to make such claim if the petitioner was otherwise eligible for credit of the amount. Considering those facts, this Court in the said judgment directed the respondents to accept the TRAN-1 filed by the petitioner and to give the due of input tax credit in the electronic credit ledger/input tax credit of the petitioner within two weeks from the date of the order. We are not inclined to accept the submissions of the learned counsel for the petitioners that by the said judgment, this Court had held that the provisions of section 140 and 117 are directory and not mandatory.
12. In our view, the interest of justice would be served if we allow the petitioner to correct Form TRAN-1 in Writ Petition No.1609/2019 and to file Form TRAN-2 without prejudice to the rights and contentions of both the parties. The respondents shall consider the issue whether the Form TRAN-1 and other forms that would be filed/corrected by the petitioner can be entertained in accordance with the provisions of section 140 of the Central Goods and Services Tax Act, 2017 and Rule 117 (1) of the Central Goods and Services Tax Rules, 2017 or not.
13. Jurisdictional Assessing Authority shall also consider all the issues that would be raised by the petitioner including the issue on merits simultaneously. The authority shall also decide the effect of the judgments of this Court in the case of Heritage Lifestyles and Developers and Private Limited (Supra) and also Nelco Limited (supra) relied upon by the learned counsel for the parties, respectively. The said authority shall take appropriate decision within four weeks from today. This order shall be communicated within one week from the date of passing of the order. If the case of the petitioner is accepted by the authority, the reliefs as sought by the petitioner shall be granted within four weeks from the date of allowing such application. If the order is adverse against the petitioner, the petitioner would be at liberty to file appropriate proceedings.”
5 The Division Bench of this Court had directed the jurisdictional assessing authority to consider all the issues that would be raised by the Petitioners including the issue on merits simultaneously. The Authority was also directed to decide the effect of the judgments of this Court in the case of Heritage Lifestyles and Developers and Pvt. Ltd. (supra) and also Nelco Ltd. (supra) relied upon by the respective parties.
6 We dispose of the present Writ Petitions in terms of the said order dated 13th April 2022 delivered at Aurangabad in the case of Ambica Fertilizers (supra) with connected Writ Petitions.
7 We further clarify that, if in case, the show cause notices are issued while adjudicating the same, the directions and observations in the present order shall also be considered by the Authority.
8 In view of the above, the Petitioners are allowed to file and correct TRAN-1 and TRAN-2 Form. In case it is not possible to file the same on-line, it shall be filed manually.
9 The same shall be filed and/or corrected preferably within 3 weeks.
10 The Authority shall pass orders upon the same as per the observations in the order, preferably within six weeks.
11 The Writ Petitions stand disposed of accordingly. No costs.
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