Jakap Metind Pvt Ltd Vs Union of India (Gujarat High Court)
In this case, it is not as if the petitioner has not filed FORM GST TRAN-1 within the time provided by the respondents under the rules. The petitioner had filed the form, but on account of not properly understanding the nature of the columns provided in the form, due to inadvertent error, did not mention the details of Rs.83,99,136/- in column 6 of Table 5a and instead uploaded the details in column 5 of Table 5a in FORM GST TRAN-1. Now the substantive right of the petitioner to claim transitional credit of such amount is sought to be denied on the ground that the time limit for filing revised FORM GST TRAN-1 has elapsed.
In the opinion of this court, as held by the Delhi High Court in M/s Blue Bird Pure Pvt. Ltd. vs. Union of India (supra), the respondents ought to have provided in the system itself a facility for rectification of such errors which are clearly bona fide. Besides, although the system provided for revision of a return, the deadline for making the revision coincided with the last date for filing the return, that is, 27th December, 2017. Thus, such facility was rendered impractical and meaningless.
This court is further of the view that retention of the amount of Rs.83,99,136/- by the respondents which the petitioner is otherwise entitled to get by way of transitional credit would be directly hit by article 265 of the Constitution of India which provides that no tax shall be levied or collected except by authority of law. The respondents have no legal authority to retain the amount of credit to which the petitioner is duly entitled and retention of the same is violative of article 265 of the Constitution of India. Therefore, when the petitioner is entitled to credit of Rs.83,99,136/-, non grant of the same is bad in law.
In the light of the above discussion, the action of the respondents in denying transitional credit of the sum of Rs.83,99,136/-, which even according to the respondents, the petitioner is otherwise entitled by way of transitional credit, cannot be sustained.
The petition, therefore, succeeds and is accordingly, allowed. The respondents are directed to either open the online portal so as to enable the petitioner to again file the rectified FORM GST TRAN-1 electronically or accept the manually filed FORM GST TRAN-1 with corrections on or before 30th November, 2019.
FULL TEXT OF THE HIGH COURT ORDER / JUDGMENT
1.Rule. Mr. Nirzar Desai, learned senior standing counsel waives service of notice of rule on behalf of the respondent No.7 and Ms. Maithili Mehta, learned Assistant Government Pleader waives service of notice of rule on behalf of respondent No.2.
2.Having regard to the controversy involved in the present case and the fact that the court has heard the learned counsel for the respective parties at length, the matter was taken up for final hearing.
3.By this petition under article 226 of the Constitution of India, the petitioner seeks grant of input tax credit in terms of section 140 of Central Goods and Service Tax Act, 2017 (hereinafter referred to as ‘the CGST Act’) read with rule 117 of the Central Goods and Service Tax Rules, 2017 (hereinafter referred to as the ‘CGST Rules’).
4.The petitioner is inter alia engaged in manufacture of brass/steel/aluminum electrical wiring accessories, other articles of brass etc. and is registered under the CGST Act. Under the erstwhile Central Excise provisions the petitioner has three Central Excise registrations for its three factories located at Jamnagar. At the time of migration to GST regime, the petitioner had CGST transitional credit to be claimed/transferred to its GST electronic credit ledger in terms of sub-section (1) of section 140, sub-section (2) section 140 and sub-section (5) section 140 of the CGST Act. In terms of the provisions of section 140 of the CGST Act, post migration to GST, the petitioner was entitled for the input tax credit of the following:
– Input credit of closing balance under ER-1.
– Input credit of unavailed credit (balance 50%) of capital goods.
– Input or input services in respect of which the supplier has already paid duty under the erstwhile Central Excise Act, 1944 and service tax under Finance Act, 1994.
5.The petitioner filed monthly returns in form of ER-1/ER-2 for all the three units. The transitional credit available with the petitioner as mentioned under sub-section (1) of section 140 of CGST Act is as under:
