HC Raps revenue for failing to act on a transitional-credit claim despite directions
In M/s Siddharth Enterprises through Anr. v. The Nodal Officer [TS-625-HC(GUJ)-2021-GST dated October 14, 2021] Hon’ble Gujarat High Court observed that the direction of this Court to allow filing of declaration in form GST TRAN-1 and GST TRAN-2 by M/s Siddharth Enterprises (Petitioner) so as to enable them to claim transitional credit of the eligible duties has not been followed by the Nodal Officer and thus directed him to appear before the court.
A common judgment was delivered by the Hon’ble Gujarat High Court on September 6, 2019 in which all the four writ applications were allowed and Department was directed to permit the Petitioner to allow filing of declaration in form GST TRAN-1 and GST TRAN-2 so as to enable him to claim transitional credit in terms of Section 140(3) of the Central Goods and Services Tax Act, 2017 (“the CGST Act”).
Observed that, after passing the above-mentioned judgment four review applications were filed by the Nodal Officer which were rejected by this Court vide order dated February 14, 2020.
Further, observed that, the concerned authority did not abide by the directions given by this Court and even after two years the order of the Court has been ignored by the Department.
Pointed that, all that is expected by the Department is to open the portal and allow the Petitioner to file declaration in Form GST TRAN-1 and GST TRAN-2 so as to enable them to claim the transitional credit of the eligible duties in respect of the inputs held in stock on the appointed day in terms of Section 140(3) of the CGST Act.
Therefore, due to non-compliance of the order, directed the Nodal Officer to present before the Court.
FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT
1. We have heard Mr. Shraff, the learned counsel appearing for the applicants (original petitioners) and Mr. Utkarsh Sharma, the learned standing counsel appearing on behalf of the Union of India.
2. Sharma, has no idea about the captioned applications filed by the original writ applicants because according to him, the Union is not one of the parties in these applications.
3. Be that as it may, we take notice of the fact that the main common judgment was delivered by this Court dated 06.09.2019 allowing all the captioned writ applications. We reproduce paragraph 43 of the judgment as under:
“43. In the result, all the four writ-applications succeed and are hereby allowed. The respondents are directed to permit the writapplicants to allow filing of declaration in form GST TRAN-1 and GST TRAN-2 so as to enable them to claim transitional credit of the eligible duties in respect of the inputs held in stock on the appointed day in terms of Section 140(3) of the Act. It is further declared that the due date contemplated under Rule 117 of the CGST Rules for the purposes of claiming transitional credit is procedural in nature and thus should not be construed as a mandatory provision.”
4. We take notice of the fact that thereafter, the Nodal Officer preferred four review applications. Those four review applications came to be rejected by this Court vide order dated 14.02.2020.
5. In such circumstances referred to above, it was expected of the authority concerned to abide by the directions issued by this Court in paragraph 43 referred to above. Two years have elapsed but till this date, the directions issued by this Court have not been given effect to.
5.1 Mr. Sharma pointed out that the Union of India has also preferred review applications against the very same judgment we are talking about i.e. the judgment delivered in the main matter dated 06.09.2019. Those review applications came to be dismissed for non prosecution. According to Mr. Sharma, thereafter restoration applications came to be filed and those are pending as on date with the Registry.
6. Shraff pointed out that the judgment delivered by this Court, the review of which is sought for now at the instance of the Union of India, has been referred to and relied upon by many High Courts in the Country and the judgments of the other High Courts challenged by the Union of India before the Supreme Court have been affirmed. In other words, the SLPs came to be dismissed.
7. We fail to understand that what is now left to be pointed out. We are disturbed by the fact that its been more than two years but our directions have not been complied with. All that is required to be done is to open the portal and allow the original writ applicants to file declaration in Form GST TRAN 1 and GST TRAN 2 so as to enable them to claim the transitional credit of the eligible duties in respect of the inputs held in stock on the appointed day in terms of Section 140(3) of the Act.
8. In view of the aforesaid, we direct the Nodal Officer, D/5, E-Governance Branch, Rajyakar Bhavan, Ashram Road, Ahmedbad to personally remain present before this Court on 27.10.2021 at 11:00 a.m.
9. Post these matters on 27.10.2021. Direct service of this order is permitted.
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