Union Of India v. M/S Steel Authority Of India Ltd And ORS
Item no. 39
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION APPELLATE SIDE
Present:
The Hon'ble Justice T.S. Sivagnanam And The Hon'ble Justice Hiranmay Bhattacharyya MAT 1317 of 2021 with IA No. CAN 1 of 2021 IA No. CAN 2 of 2021 Union of India vs.
M/s. Steel Authority of India Ltd. & ors.
For the Appellants : Mr. Somnath Ganguly Mr. Sukalpa Seal For the Respondents : Mr. Deepro Sen Mr. Dipankar Majumdar Heard on : 17.12.2021 Judgment on : 17.12.2021.
T.S. Sivagnanam J.:
We are prima facie satisfied that sufficient grounds have been shown for condoning the delay in preferring this mandamus appeal. Such delay is condoned and the application being CAN 1 of 2021 is allowed and disposed of.
This appeal is directed against a common order dated 04.03.2020 passed in W.P. 17234(W)/2019 batch. The other appeals filed by the Union were heard by us in MAT 552 of 2020 with CAN 1 of 2020 and CAN 2 of 2020 (Nodal Officer, Jt. Commissioner, IT Grievance, GST Bhawan vs. M/s. Das Auto Centre) batch. By the judgment dated 14.12.2021, the appeals were dismissed and the operative portion is as follows:
"We have heard elaborately all the parties. We have perused the various case laws placed before us. We find that in majority of the High Courts similar relief was sought for and invariably in all those cases appropriate directions have been issued in favour of the writ petitioners. This would go to say that the problem is not confined to a particular State or a few States but appears to be a pan-India problem.
Be that as it may, we would wish to point out from the recent decision of the High Court of Madras in the case of Commissioner of GST and Central Excise vs. Bharat Electronic Ltd. in WA No. 2203 of 2021 it is seen that an identical issue was considered by the Division Bench of the Court and the appeal filed by the Department of Revenue was dismissed. The Court while dismissing the appeal concurred with the learned Single Judge and directed 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 of Commissioner of Customs vs. Dilipkumar and Co.
reported in (2018) 9 SCC 1 wherein the doctrine of substantial compliance was held to be applicable even while considering a claim of exemption and the above doctrine would afortiorari apply to a claim of Input Tax Credit. The Court noted it in paragraph 51 of the judgment of the Hon'ble Supreme Court. Further, the Court also took into consideration the decision of the High Court of Bombay in the case of Heritage Lifestyles and Developers Pvt. Ltd. vs. Union of India reported in 2020 SCC 43 GSTL 33 (Bombay). The Court after taking note of 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 was granted to examine the legality or correctness or otherwise of the claim of Input Tax Credit under the erstwhile regime and transition to GST of the revenue.
The other recent decision is that of the High Court of Allahabad in the case of Ratek Pheon Friction Technologies Pvt. Ltd. vs. Principal Commissioner reported in (2021) 130 Taxmen.com 367. In a batch of writ petitions filed before the High
Court of Allahabad the writ petitioners sought for issuance of mandamus to command the authorities to allow them to submit 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 recognized existence of technical difficulties in working of the GST portal for a long period of time and that too immediately upon introduction of GST regime. The Court noted the decision of the High Court of Delhi in Blue Bird Pure Pvt. Ltd. vs. Union of India reported in (2019) 108 Taxman.
com 218 (Del) in WP(C) 3798 of 2019 which relied upon the earlier decision in Bhargava Motors vs. Union of India in WPC No. 7423 of 2019 dated 12.07.2019 and the decision of the High Court of the Madras and The decision of the Punjab and Haryana High court in Adfert Technologies (P) Ltd. vs. Union of India reported in (2020) 32 GSTL 726 (Punj.and Har.) and granted relief in favour of the writ petitioners. In fact, several directions have been issued by the Court and the authorities are to comply with such directions. The decision in the case of Adfert Technologies Pvt. Ltd. (Supra) rendered by the High Court of 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 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 rerevise return. In our considered view, this would be a difficult exercise and such cannot be run by the assessing Officer in whose jurisdiction the assessee is carrying business. It probably will have to be done at the very higher level and consequently direction, if any, issued to open the portal, would become unworkable qua prayer made by the writ petitioners. While pondering on the face of the issue, we refer the decision of the Punjab and Haryana High Court in the case of Hans Raj Sons vs. Union of India reported in 2020 (34) GSTL 58 (P & H).
credit in their GST 3B forms to be filed on the monthly basis. This in our considered view, will be a workable solution and the Assessing Officer will be entitled to examine the legality of the claim on such form being filed by the assessee. Thus, for the above reasons, we find that the substantial part of the order and the directions issued by the learned writ Court as well as reasoning given merits acceptance. However, we are of view that instead of directing the portal to be open, the direction issued in Hans Raj Sons (supra) is more assessee friendly. We also find identical directions have been issued in the case of Amba Industrial Corporation vs. Union of India reported in (2020) 117 Taxman. 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." In view of the aforesaid, the appeal and the connected application stand dismissed.
(T. S. Sivagnanam, J.) (Hiranmay Bhattacharyya, J.) RP/Amitava