M/S Kongovi Private Limited vs The Union Of India on 28 March, 2019
Karnataka High Court
M/S Kongovi Private Limited vs The Union Of India on 28 March, 2019
Author: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MARCH, 2019
BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION No.12812/2019 (T – RES)
BETWEEN:
M/S KONGOVI PRIVATE LIMITED
# 377, 10TH CROSS, IV PHASE,
PEENYA INDUSTRIAL AREA,
BANGALORE-560 058
REP. BY SHRI PRADDEP KUMAR SAMAL
COMPANY SECRETARY …PETITIONER
(BY SRI SHIVADASS, SENIOR COUNSEL FOR
SRI PRASHANTH.S.S. & SRI RISHAB.J. ADVS.)
AND:
1. THE UNION OF INDIA
THROUGH ITS REVENUE SECRETARY,
DEPARTMENT OF REVENUE,
MINISTRY OF FINANCE,
128-A/ NORTH BLOCK,
NEW DELHI.
2. THE CENTRAL BOARD OF
INDIRECT TAXES AND CUSTOMS
THROUGH ITS CHAIRMAN,
NORTH BLOCK, NEW DELHI-110 001
3. THE GOODS AND SERVICES TAX COUNCIL
5TH FLOOR, TOWER II,
JEEVAN BHARTI BUILDING
JANPATH ROAD, CONNAUGHT PLACE,
NEW DELHI-110 001.
-2-
4. THE STATE OF KARNATAKA
THROUGH THE GOVERNMENT PLEADER
HIGH COURT, KARNATAKA.
5. THE NODAL OFFICER
ADDITIONAL COMMISSIONER (PCCO)
OFFICE OF PRINCIPAL COMMISIONER
OF CENTRAL TAX, BANGALORE ZONE,
Indian Kanoon – http://indiankanoon.org/doc/101227105/ 1
M/S Kongovi Private Limited vs The Union Of India on 28 March, 2019
C.R.BUILDING, QUEENS ROAD,
BANGALORE-560 001.
6. THE JOINT COMMISSISONER
OF COMMERCIAL TAXES
NO.488, 2ND FLOOR, B BLOCK,
KIADB BUILDING, 4TH PHASE,
14TH CROSD, PEENYA,
BANGALORE-560 058. …RESPONDENTS
(BY SRI JEEVAN J. NEERALAGI, ADV. FOR R-1 – 3 & 5;
SRI VIKRAM A HUILGOL, HCGP FOR R-4 & R-6.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE
DIRECTION UNDER ARTICLE 226 OF THE CONSTITUTION OF
INDIA QUASHING THE IMPUGNED LETTER DATED 04.03.2019
AT ANNEXURE-A ISSUED BY THE OFFICE OF THE PRINCIPAL
CHIEF COMMISSIONER OF CENTRAL TAX AND DIRECT THE R-5
TO RE-CONSIDER THE REQUEST MADE BY THE PETITIONER
FOR GRANT OF TRANSITIONAL CREDIT IN QUESTION; AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is aggrieved by the Letter dated C.No.IV/16/82/2018 – PCCO GST IV /602 dated 04.03.2019 wherein the Respondent is not allowing the petitioner to correct an error which has occurred in filing the GST TRAN-1 FORM because of which the eligible credit under the earlier indirect tax law could not be transferred into the electronic credit ledger of the Petitioner in the GST regime. The petitioner had filed the original FORM GST TRAN-1 as well as the revised FORM GST TRAN-1 within the stipulated time provided by the statute.
2. It is the contention of the petitioner that after receiving a report from the Chartered Accountant, appointed for undertaking audit of the Cenvat credit i.e., to verify the availment and utilization of Cenvat credit for the period April 2016 to June 2017 it was realized that it had inadvertently not reported credit of certain eligible credits in ER-1 and consequently in FORM GST TRAN-1, which had been recorded in the books of accounts. On further investigation, it is said to have been noticed by the petitioner that due to change in ERP software in 2016-17, an error in reporting of credit occurred, credit pertaining to Countervailing duty and Special Additional Duty. The petitioner approached the Jurisdictional Officer and filed a letter explaining that the petitioner has inadvertently omitted recording of eligible credit and requested the officer to allow the petitioner to avail the said credit in their electronic credit ledger but in vain. Pursuant to the circular instructions issued by the Government of India, Ministry of Finance Department of Revenue Central Board of Indirect Taxes and Customs dated 03.04.2018, the petitioner has approached the Nodal Officer who in turn directed the petitioner to seek the redressal of remedy before the jurisdictional officer. Accordingly, the petitioner again made a request to the Jurisdictional Officer to consider the request
Indian Kanoon – http://indiankanoon.org/doc/101227105/ 2
M/S Kongovi Private Limited vs The Union Of India on 28 March, 2019
of the petitioner submitting a copy of the said letter to the Nodal Officer. The Additional Commissioner of Central Taxes, the concerned Nodal Officer vide letter dated 04.03.2019 communicated, that non-transition of credit into GST regime was not on account of technical glitch on GST Portal and hence the petitioner shall not be eligible for credit of the said amount. Being aggrieved by the same, the petitioner is before this Court.
- Learned Senior Counsel Sri. Shivadass, representing the petitioner’s counsel would submit that in terms of Section 172 of the Act, Rule 120A of the CG & ST Rules 2017 [‘Rules’ for short] can be relaxed and the petitioner is entitled to make revision of declaration in FORM GST TRAN-1. However, the respondent authorities are not permitting the petitioner to file a revised FORM GST TRAN-1 in order to avail eligible credit.
- Learned counsel for the petitioner has placed reliance on the judgment of the Hon’ble High Court of Bombay in the case of O/E/N India Ltd., and Another V/s. Union of India & Others, reported in 2018-VIL- 491-BOM to contend that the Rule 120A of the Rules can be relaxed in terms of Section 172 of the Act and the petitioner may be permitted to revise the declaration in FORM GST TRAN-1 for more than once.
- Reference is made to the Judgment of Hon’ble Madras High Court in the case of M/s. Calibre Industries V/s. The Principal Commissioner, GST & Central Excise, Chennai & Others, reported in 2018- VIL-428-MAD dated 24.07.2018.
- Learned counsel for the Revenue submits that Rule 120A can be invoked by the Commissioner for extension of the time period specified in Rules 117, 118, 119 and 120 to enable the assessee to revise such declaration once. The petitioner having availed it once, is not entitled to seek further revision of FORM GST TRAN-1.
- I have heard the learned counsel for the respective parties and perused the material on record.
- It is the contention of the learned Senior Counsel that the petitioner is facing difficulty in implementing Section 140 of the Act, 2017, it is necessary to invoke Section 172 to enable the petitioner to avail the transitional arrangements for input tax credit and the same ought to have been considered by the respondent – Authorities. Denial of revision of declaration in FORM GST TRAN-1 would result in disentitlement of the credit to the petitioner defeating the object of Transitional arrangements.
- To analyze the issue at hand, it is apt to refer to the relevant provisions of the Act and Rules to arrive at a decision as far as the relief sought in the writ petition is concerned.
- Section 140 of the Act, 2017 deals with Transitional arrangements for input tax credit and the same reads thus:
“140. Transitional arrangements for input tax credit.
Indian Kanoon – http://indiankanoon.org/doc/101227105/ 3
M/S Kongovi Private Limited vs The Union Of India on 28 March, 2019
(1) A registered person, other than a person opting to pay tax under section 10, shall
be entitled to take, in his electronic credit ledger, the amount of CENVAT credit carried forward in the return relating to the period ending with the day immediately preceding the appointed day, furnished by him under the existing law in such manner as may be prescribed:
Provided that the registered person shall not be allowed to take credit in the following circumstances, namely:–
(i) where the said amount of credit is not admissible as input tax credit under this
Act; or
- where he has not furnished all the returns required under the existing law for the period of six months immediately preceding the appointed date; or
- where the said amount of credit relates to goods manufactured and cleared under
such exemption notifications as are notified by the Government.”
11. Rule 117 of the Rules deals with the Transitional Provisions and the same reads as under:
“117. Tax or duty credit carried forward under any existing law or on goods held in
stock on the appointed day [1] Every registered person entitled to take credit of input
tax under section 140 shall, within ninety days of the appointed day, submit a declaration electronically in FORM GST TRAN-1, duly signed, on the common portal specifying therein, separately, the amount of input tax credit [of eligible duties and taxes, as defined in Explanation 2 to section 140] to which he is entitled under the provisions of the said section:
PROVIDED, that the Commissioner may, on the recommendations of the Council, extend the period of ninety days by a further period not exceeding ninety days.”
12. Rule 120A of the Rules runs as under:
“120A. Revision of declaration in FORM GST TRAN-1.
Every registered person who has submitted a declaration electronically in FORM GST
TRAN-1 within the time period specified in rule 117, rule 118, rule 119 and rule 120
may revise such declaration once and submit the revised declaration in FORM GST
TRAN-1 electronically on the common portal within the time period specified in the
said rules or such further period as may be extended by the Commissioner in this behalf.”
13. This Rule 120A has been inserted vide notification No.34/2017 – Central Tax, dated 15.09.2017 subsequent to the insertion of this Rule, sub-rule [1A] has been inserted to Rule 117 by
Indian Kanoon – http://indiankanoon.org/doc/101227105/ 4
M/S Kongovi Private Limited vs The Union Of India on 28 March, 2019
– 10 –
notification dated 10.09.2018 and the same runs as under:
“[a] after sub-rule [1], the following sub- rule shall be inserted, namely:-
“[1A] Notwithstanding anything contained in sub-rule [1], the Commissioner may, on
the recommendations of the Council, extend the date for submitting the declaration electronically in FORM GST TRAN-1 by a further period not beyond 31st March, 2019, in respect of registered persons who could not submit the said declration by the due date on account of technical difficulties on the common portal and in respect of whom the Council has made a recommendation for such extension.””
14. Section 172 of the Act contemplates regarding removal of difficulties and the same is quoted here under for ready reference:
“172. Removal of difficulties [1] If any difficulty arises in giving effect to any
provisions of this Act, the Government may, on the recommendations of the Council,
by a general or a special order published in the Official Gazette, make such provisions
not inconsistent with the provisions of this Act or the rules or regulations made thereunder, as may be necessary or expedient for the purpose of removing the said difficulty:
– 11 –
PROVIDED that no such order shall be made after the expiry of a period of three years from the date of commencement of this Act.
[2] Every order made under this section shall be laid, as soon as may be, after it is made, before each House of Parliament.”
15. A comprehensive reading of these provisions harmoniously, would indicate that Rule 117 of the Rules provides for submitting a declaration electronically in FORM GST TRAN-1 within 90 days from the appointed day on the common portal specified therein, separately, the amount of input tax credit to which the registered person is entitled to take input tax credit under Section 140. The Commissioner is empowered to extend the period of 90 days by a further period not exceeding 90 days for submitting the declaration electronically in FORM GST TRAN-1 in terms of Rule 117[1A]. A reading of this Rule suggests that it relates to filing of the declaration electronically in FORM GST TRAN-1 for the first time. Subsequent to
– 12 –
amendment to Rule 117 by inserting sub-rule 1A, the time period specified for filing FORM GST TRAN-1 has been extended for further period not beyond 31.03.2019, in respect of registered person
Indian Kanoon – http://indiankanoon.org/doc/101227105/ 5
M/S Kongovi Private Limited vs The Union Of India on 28 March, 2019
who could not submit the said declaration by the due date on account of technical difficulties on the common portal and in respect of whom, the Council has made recommendations.
- The Rule 120A provides for revision of declaration. In the event of the registered person who had submitted a declaration electronically in FORM GST TRAN-1, intends to revise such declaration once, this provision can be invoked. This provision makes it clear that the revision of the declaration in FORM GST TRAN- 1 can be made only once not in perpetuity.
- Regarding the IT grievance redressal mechanism to address the grievances due to technical glitches on GST Portal, circular instructions has been
– 13 –
issued by the Government of India, Ministry of Finance [Department of Revenue] Central Board of Excise & Customs, New Delhi dated 03.04.2018.
- S e c t i o n 1 7 2 o f t h e A c t c o n t e m p l a t e s a b o u t t h e r e m o v a l o f d i f f i c u l t i e s w h e r e i n correction/rectification/revision of the FORM GST TRAN-1 can also be addressed on general or special basis, taking into account the ground realities qua effective implementation of Section 140 of the Act.
- It is beneficial to quote the relevant paragraphs of the judgment of the Hon’ble High Court of Bombay in the case of O/E/N India Ltd., supra which reads as under:
“2. The petitioners had while submitting its Form TRAN-1 inter alia to enable the unutilized Cenvat credit from the earlier regime be carried forward into the GST regime had on account of typographical error indicated that the Cenvat credit available is Rs.11,10,555/- instead of Rs.1,11,05,550/-. This the petitioners have been seeking to correct by approaching the Respondents.
– 14 –
However, inspite of the Petitioners best efforts, the Respondents have refused to allow the petitioners to carry out the necessary amendment to the TRAN-1 already submitted or even accept a fresh TRAN-1.
- We note that the human errors such as one which is arising in the present Petition are likely to have taken place in other cases also. At times these mistakes in keying in the correct figures would work in favour of the State and at other times in favour of Assessee. According to learned Counsel for both sides, there is no provision in the Act, which allows correctin/rectification of such errors.
- During the course of hearing, our attention is drawn to Section 172 of the Act which inter alia provides for removal of difficulties which may arise during the implementation of the Act.
Indian Kanoon – http://indiankanoon.org/doc/101227105/ 6
M/S Kongovi Private Limited vs The Union Of India on 28 March, 2019
- In the above view, it appears to us that it would be appropriate that the Central Government issues a general and/or special order under Section 172 of the Act addressing the above issue on general or special basis, taking into account the ground realities.
- In the above view, at the request of Shri. Jetly, the learned Counsel appearing for the Respondents No.1 and 3, the Petition is adjourned to 10th October 2018.”
– 15 –
Order dated 24.10.2018:
“3. Respondents have filed an affidavit in reply of Mr. Milind Gawai, Commissioner, Central Tax, Pune-1 Pune dated 23rd October, 2018. This Affidavit in reply dated 23rd October, 2018, inter alia states as under:-
“Further, in view of the directions dated 26-09-2018 of this Court, it has been decided by the CBIC [Central Board of Indirect Taxes & Customs] that relief may be extended to the petitioner after due verification of the bona fides of the claims made by the petitioner from GSTN. Once the claims made by the petitioner have been verified, he may be allowed to amend the TRAN-1 to file correct amount of CENVAT credit to be transitioned.”
- In the above view, nothing survives in this Petition.
- However, Petitioners would have to file representation to the Central Board of Indirect Taxes and Customs [CBIC]. This representation would be considered by the CBIC for verification and the bona fides of the claim made by the Petitioners. If satisfied, Petitioners would be allowed to amend the Trans-I form to reflect the correct amount of credit available. The CBIC will decide the Petitioners’ representation as expeditiously as possible and preferably within a period of twelve weeks from the date the representation, is received by the CBIC.”
– 16 –
20. In the case of M/s. Calibre Industries supra, the Hon’ble High Court of Madras has held thus:
“11. The learned Government Advocate submits that the Principal Secretary and
Commissioner of Commercial Taxes, Government of Tamil Nadu vide, proceedings dated 18.05.2018, nominated Mr.S.Ramasamy, Joint Commissioner [CS] as the State Level Nodal Officer to address the problems faced by the tax payers due to IT glitches, if any, in the GST portal. The Senior Standing Council appearing for GSTN and Commissioner of GST and Center Excise [Outer] has also informed that already a Nodal officer had been appointed by GSTN and Commissioner of GST and Central excise [Outer].
12. Thus, writ petition stands disposed of with the following directions:
Indian Kanoon – http://indiankanoon.org/doc/101227105/ 7
M/S Kongovi Private Limited vs The Union Of India on 28 March, 2019
[i] The respective Commissioner of GST and Central excise are directed to appoint 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 and [ii] The petitioner/assessee is directed to submit their application in accordance with paragraph 8 of the said circular dated 03.04.2018 within a period of two weeks from th e d a t e o f r e c e i p t o f a c o p y o f t h i s o r d e r t o t h e i r r e s p e c t i v e A s s e s s i n g Officer/Jurisdictional Officer/GST Officer. The Assessing Officer is directed to forward the
– 17 –
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 petitioner/assessee 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 application is received in proper form.
No costs.”
21. In view of the aforesaid, even on the technical glitches arising out of the petitioner/assesse’s inadvertence requires to be addressed by the Nodal Officers appointed in terms of Circular instructions dated 03.04.2018 supra. The object and purpose of the transitional arrangements made under Section 140 of the Act requires to be achieved to its logical end. Hence, keeping open all the rights and contentions of the parties, it would be appropriate for this Court to direct the petitioner to approach the Nodal Officer appointed for the State of Karnataka in terms of circular dated 03.04.2018.
– 18 –
22. Hence, the writ petition is disposed of with a direction to the petitioner to approach the jurisdictional Nodal Officer and the Nodal Officer is directed to consider the grievances of the petitioner in accordance with law in the light of the observations made herein above, in an expedite manner, in any event not later than four weeks from the date of the certified copy of the order, after providing an opportunity of hearing to the petitioner.
The assessee shall appear before the jurisdictional Nodal Officer on 08.04.2019. The Nodal Officer shall address the grievance of the petitioner in an expedite manner.
Writ petition stands disposed of in terms of the above.
Sd/-
JUDGE NC.
Indian Kanoon – http://indiankanoon.org/doc/101227105/ 8
