Case Law Details
Schwing Stetter India Ptd. Ltd. Vs Commissioner of GST & Central Excise (Madras High Court)
The sum and substance of the prayer of the petitioners is that they are unable to upload Form GST TRAN-1 to take credit of the Input Tax /Service Tax/Central Excise Duty availed by them at the time of migration within the time stipulated.
Writ petitions stand disposed of with the following direction:
1) The respective Commissioner of GST and Central excise are directed to appoint the Nodal Officer / Officers for the State of Tamil Nadu, if not already appointed, within a period of 2 weeks from the date of receipt of a copy of this order.
2) The petitioners/ Assessees are directed to submit their applications in accordance with Paragraph 8 of the Circular dated 03.04.2018 within a period of two weeks from the date of receipt of a copy of this order to their respective Assessing Officers / jurisdictional officer/GST Officers. The Assessing Officers are directed to forward the application to the Nodal Officers within a period of one week. The Nodal Officer nominated will, in consultation with the GSTN shall take note of the grievances expressed by the petitioners/assessees and forward the same to the grievance committee, who in turn would take an appropriate decision in the matter within a period of three weeks from the date on which the applications are received in proper form.
FULL TEXT OF THE HIGH COURT ORDER / JUDGEMENT
In the batch of cases, there are varied prayers sought by the petitioners. The sum and substance of the prayer of the petitioners is that they are unable to upload Form GST TRAN-1 to take credit of the Input Tax /Service Tax/Central Excise Duty availed by them at the time of migration within the time stipulated.
2. The petitioners would state that they were unable to uploaded Form GST TRAN- 1 within the time stipulated on account of some error. Therefore, the petitioners seek for appropriate direction in this regard.
3. Similar prayers were made before the High Court of Chhattisgarh, High Court of Delhi and High Court of Kerala and the High Court of Chhattisgarh in W.P (T) No.68 of 2018 dated 14.05.2018 has issued appropriate directions. Operative portion of the orders reads as follows:
“7. After going through the aforesaid circular and the scheme of the circular, I am convinced that complete procedure has been prescribed for redressal of grievance which the petitioner has raised in this writ petition, particularly of non-uploading of FORM TRAN-I due to technical glitches. Apart from this State Government – Commissioner, Central Excise / GST has issued order dated 5.4.2018 in which Nodal Officers have already been appointed by the State Government. In view of the above, the petitioner is directed to approach the Nodal Officer of Dhamtari i.e., Assistant Commissioner, State GST, Raipur Circle – 7 within four days from today by filing representation along with all necessary documents for redressal of his grievance and in turn, the said authority would consider and dispose of the same following the procedure laid down in para 8 of the circular dated 3.4.2018 and would take decision accordingly keeping in view that this writ petition remained pending since 26.3.2018.
8. With the aforesaid direction, the writ petition stand finally disposed of. No order as to cost(s).”
4. So far as the High Court of Delhi is concerned, the Delhi High Court in P(C) No.1300 of 2018 and batch dated 09.04.2018 directed the petitioners to approach the concerned Nodal Officer with brief representations outlining their grievances and the Nodal Officer or the Redressal Committee was directed to appropriately deal with representations in accordance with the circular dated 03.04.2018.
5. So far as the Kerala High Court is concerned, in W.P.No.17348 of 2018 dated 14.06.2018, the following direction has been issued:
“Having regard to the facts and circumstances of this case as also the orders passed in similar matters, I deem it appropriate to dispose of the writ petition permitting the petitioner to prefer an application before the additional sixth respondent, the Nodal Officer appointed to resolve issues in the nature of one raised by the petitioner. Ordered accordingly. Needless to say that if the petitioner prefers an application within two weeks from the date of receipt of a copy of this judgment, same shall be considered and appropriate decision shall be taken by the additional sixth respondent within a week thereafter. Needless also to say that if it is found that the petitioner could not upload FORM GST TRAN-1 for reasons not attributable to him, appropriate action shall be taken to enable him to take credit of the input tax available to him at the time of migration.
6. The learned counsels appearing for the petitioners would submit that identical directions may be issued in this batch of cases as well.
7. It was brought to the notice of the Central Board of Indirect Taxes (CBIC) and Customs that about difficulties faced by section of tax payers owing to technical glitches on the GST and representations were given by the petitioners. Therefore, CBIC is setting up a Grievance Redressal Mechanism vide Circular No.39/13/2018-GST dated 03.04.2018. Paragraph 8 of the Circular would be relevant for the purpose of the cases on hand.
“8.Resolution of stuck TRAN-1s and filing of GSTR-3B
8.1 A large number of taxpayers could not complete the process of TRAN-1 filing either at the stage of original or revised filing as they could not digitally authenticate the TRAN-1s due to IT related glitches. As a result, a large number of such TRAN-1s are stuck in the system. GSTN shall identify such taxpayers who could not file TRAN-1 on the basis of electronic audit trail. It has been decided that all such taxpayers, who tried but were not able to complete TRAN-1 procedure (original or revised of filing them on or before 27.12.2017 due to IT glitch, shall be provided the facility to complete TRAN-1 filing. It is clarified that the last date for filing of TRAN-1 is not being extended in general and only these identified taxpayers shall be allow to complete the process of filing TRAN-1.
8.2. The Taxpayers shall not be allowed to amend the amount of credit in TRAN-1 during this process vis-a-vis the amount of credit which was recorded by the taxpayer in the TRAN-1, which could not be filed. If needed, GSTN May request field formations for Centre and State to collect additional document/data etc., or verify the same to identify taxpayers who should be allowed this procedure.
8.3. GSTN shall communicate directly with the taxpayers in this regard and submit a final report to GIC about the number of TRAN-1s filed and submitted through this process.
8.4. The taxpayers shall complete the process of filing of TRAN 1 stuck due to IT glitches, as discussed above, by 30th April 2018 and the process of completing filing of GSTR 3B which could not be filed for such TRAN 1 shall be completed by 31st May 2018.”
8. With regard to the request made by the petitioner in W.P.No.3117 of 2018, paragraph 5.1 of the circular would state that GSTN, Central and State Government would appoint nodal officers in requisite number to address the problem a taxpayer faces due to glitches, if any, in the Common Portal. This would be publicized adequately.
9. An argument was advanced by the learned counsel for the assessees that Paragraph 5 of the circular dated 03.04.2018 is confined to non-TRAN-1 issues. However, I find there is no such specific distinction brought about in paragraph 5 of the circular. Therefore, it can be safely held that the procedure of appointment of Nodal Officers and identification of issues is to be done in the manner provided in Paragraph 5 of the Circular. Unless the Nodal Officers are appointed, jurisdictional officer of the Assessee, namely Assessing Officer would not be in a position to forward the representations/applications filed by the Assessee pointing out the glitches they are facing while availing the credit during the transition process.
10. The learned Government Advocate submits that the Principal Secretary and Commissioner of Commercial Taxes, Government of Tamil Nadu vide proceedings dated 18.5.2018 nominated Mr.S.Ramasamy, Joint Commissioner (CS) as the State Level Nodal Officer to address the problem faced by the taxpayers due to IT glitches, if any, in the GST portal. The Senior Standing Council appearing for GSTN and Commissioner of GST and Central Excise (Outer) has also informed that already Nodal officer had been appointed by GSTN and Commissioner of GST and Central excise (outer).
11. Thus, writ petitions stand disposed of with the following direction:
1) The respective Commissioner of GST and Central excise are directed to appoint the Nodal Officer / Officers for the State of Tamil Nadu, if not already appointed, within a period of 2 weeks from the date of receipt of a copy of this order.
2) The petitioners/ Assessees are directed to submit their applications in accordance with Paragraph 8 of the Circular dated 03.04.2018 within a period of two weeks from the date of receipt of a copy of this order to their respective Assessing Officers / jurisdictional officer/GST Officers. The Assessing Officers are directed to forward the application to the Nodal Officers within a period of one week. The Nodal Officer nominated will, in consultation with the GSTN shall take note of the grievances expressed by the petitioners/assessees and forward the same to the grievance committee, who in turn would take an appropriate decision in the matter within a period of three weeks from the date on which the applications are received in proper form.
No costs. Consequently, the connected miscellaneous petitions are closed.
