Ezzy Electricals vs State Of Gujarat on 16 February, 2022
Gujarat High Court
Ezzy Electricals vs State Of Gujarat on 16 February, 2022
- ench: J.B.Pardiwala
- /SCA/13091/2020 ORDER DATED: 16/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13091 of 2020
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EZZY ELECTRICALS
Versus
STATE OF GUJARAT
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Appearance:
MR UCHIT N SHETH(7336) for the Petitioner(s) No. 1
MR UTKARSH R SHARMA(6157) for the Respondent(s) No. 5
NOTICE SERVED for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 16/02/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1 By this writ application under Article 226 of the Constitution of India, the writ applicant, a proprietary concern through its proprietor, has prayed for the following reliefs:
“A This Hon’ble Court may be pleased to issue a writ of mandamus or a writ in the
nature of mandamus or any other appropriate writ or order directing the respondents
to allow the petitioner to upload Form GST ITC-01 on the online portal for claiming
input tax credit under Section 18(1)(c) of the GST Acts;
B In the alternative this Hon’ble Court may be pleased to issue a writ of mandamus or
writ in the nature of mandamus or any other appropriate writ or order directing the respondents to grant input tax credit under Section 18(1)(c) of the GST Acts to the petitioner in any other possible mode;
C. Pending notice, admission and final hearing of this petition, this Hon’ble Court
may be pleased to direct the respondents to allow the petitioner to upload Form GST
ITC-01 on the online portal for claiming input tax credit under Section 18(1)(c) of the
GST Acts;
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Ezzy Electricals vs State Of Gujarat on 16 February, 2022
C/SCA/13091/2020 ORDER DATED: 16/02/2022
- Ex parte ad interim relief in terms of prayer C may kindly be granted.
- Such further relief(s) as deemed fit in the facts and
circumstances of the case may kindly be granted in the interest of justice for which
act of kindness your petitioner shall forever pray.”
2 We need not delve much into the facts of this litigation as our order dated 2nd February 2022 makes the picture abundantly clear. The order reads thus:
“1 We have heard Mr. Uchit Sheth, the learned counsel appearing for the writ
applicant and Mr. Utkarsh Sharma, the learned A.G.P. appearing for the respondents.
2 The controversy in the present litigation appears to be in a narrow compass. The
writ applicant is a proprietary concern. The case of the writ applicant is that he is a small size taxpayer and was eligible for composition scheme under Section 10 of the G.S.T. Act. The writ applicant was registered under the said scheme till 31 st March 2018. The writ applicant decided to opt out of the composition scheme w.e.f. 1st April 2018. In such circumstances, the writ applicant filed the necessary Form GST CMP – 04 on 31st March 2018.
- Once a person ceases to pay tax under the composition scheme, as envisaged under Section 10 of the G.S.T. Act, he becomes entitled to claim an Input Tax Credit of the goods held in stock as on the date of transition by virtue of Section 18(1)(c) of the G.S.T. Act.
- The conditions for claim of such Input Tax Credit are stipulated in Rule 40 of the Central / Gujarat Goods and Services Tax Rules, 2017.
- It is not in dispute that for the purpose of claiming an Input Tax Credit under
Section 18(1)(c) of the G.S.T. Act, a Form GST ITC – 01 should have been filed within
30 days from the date of becoming eligible to avail the Input Tax Credit or within
such time period, as may be extended by the Commissioner.
6 Prima facie, it appears that the writ applicant was not in a position to operate the
GST Portal on account of some technical issues. The writ applicant did tried to
upload the Form ITC – 01 on the basis of the Notification dated 17th September 2018
i.e. well within the extended time limit. However, an error report was generated on
the portal and the writ applicant was unable to file such Form.
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Ezzy Electricals vs State Of Gujarat on 16 February, 2022
C/SCA/13091/2020 ORDER DATED: 16/02/2022
7 It is the case of the writ applicant that since 24 th September
2018, for not less than 15 times, he requested the concerned authority to look into the matter and permit him to upload the Form ITC – 01.
however, till this date, the concerned authority has not said anything in that regard.
8 Mr. Utkarsh Sharma, the learned A.G.P. invited our attention to the affidavit-in-reply filed on behalf of the respondent No.5 – GST. In the reply, the stance as reflected therein is as under:
“5.1 I say and submit that the primary issue involved in the petition is that the
petitioner opted out of the composition scheme w.e.f. 1.4.2018. The petitioner tried to upload form ITC- 01 on 17.09.2018. Notification No.42/2018-Central Tax dated 04.09.2018 extended the time limit for filing ITC-01 for a period of 30 days from the date of publication of notification for taxpayers who has filed application in FORM GST CMP-04 between 02.03.2018 and 31.03.2018. As claimed, the petitioner was unable to file ITC-01 form due to technical glitches of the GST portal. The screen shot was submitted by the taxpayer for Technical glitches, which is already at Annexure-C (pg. no.19).
6. I say and submit that as per technical analysis, the ITC-01 logs of the petitioner (GSTN 24AAOPL0729PIZ9) along with the screen shot of annexed as Annexure-C of page 19 of the writ petitioner were examined in GSTN. No technical glitches of the GST portal were observed in petitioner’s case. From the screen shot annexed by the petitioner, it is observed that the petitioner used the ‘wrong offline tool’ for filing of ITC-01.
GSTN : 24AAOPL0729P1Z9 with Legal Name : KURBANHUSAN ABDRAALI LAXMIDHAR is an active taxpayer on the GST Portal from 1st July 2017. The petitioner opted out of composition on 31st March 2018.
7. As per the screenshot provided by the petitioner at Annexure-C of the writ petition, the petitioner was using the offline Tool with version Number Release 2.2.3 which was last updated on 10/04/2018. On the same screenshot “GSTR Returns” has also been stated on top which shows that the offline utility was for filing returns and not ITC-01. Further, the current version of the ITC-01 offline tool available on the GST portal is ITC_Offline_v1.0 released on 12 th January, 2018. The numbering of versions of offline tool is always incremental on the GST portal. The current version of the ITC 01 tool is v1.0, therefore, the previous version cannot be greater than v1.0. It is evident from the screen shot shared by the petitioner at C/SCA/13091/2020 ORDER DATED: 16/02/2022 Annexure-C that the offline tool which was being used by the petitioner was 2.2.3 which also shows
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Ezzy Electricals vs State Of Gujarat on 16 February, 2022
that the petitioner was using wrong utility for filing ITC-01.
- It is apparent from the screen shot provided as Annexure- C of the writ petitioner that the petitioner was using, the Returns Offline Tool Version 2.2.3. No technical glitches of the GST portal were found with the summary reported by the petitioner. In view of the above, no technical glitches of the GST portal were found in this matter. The copy of the relevant screen shots of the software are annexed herewith and marked as Annexure-I colly.”
- We have been able to understand the stance of the respondent No.5 as above. However, the question is whether all the doors are closed for the writ applicant for all times to come? Is there any scope still for the authority to permit the writ applicant to upload the Form ITC – 01 for the purpose of claiming the refund towards the Input Tax Credit. The amount which could have been refunded at the relevant point of time is approximately Rs.5 Lakh.
- In the peculiar facts and circumstances of the case, we expect the respondents, more particularly, the respondent No.5 to find out some via media by which the writ applicant is able to upload the Form once again and seek refund. Prima facie, we are of the view that it will be too much at this point of time to tell the writ applicant that as he was not in a position to operate the portal properly, he should now forget to seek any refund. We expect the respondents to try to find out some way having regard to the peculiar facts and circumstances of the case. We request Mr. Sharma, the learned A.G.P. to speak to the respondents in this regard and revert to us by the next date of hearing.
- Post the matter on 16th February 2022 on top of the Board.”
2 Today, when the matter was taken up for further hearing, Mr. Utkarsh Sharma, the learned A.G.P. submitted that the department would definitely do the needful and see to it that the writ applicant is able to upload the Form ITC – 01 for the purpose of claiming the Input Tax Credit. Our attention was drawn to one communication between the writ applicant and the Assistant Commissioner of State Tax, Unit – 87, Veraval. It reads thus:
“SR.NO./AC-87/VERAVAL/GSTN/2019-20/NO.4120/21 Date: 11/10/2019 C/SCA/13091/2020 ORDER DATED: 16/02/2022 To, Ezzy Electricals, Pro. Kurban Hussain Zaveri Bazar Veraval – 362265.
GSTN:24AAOPL0729PIZ9 Sub : Regarding submission of I.T.C. 01.
Ref : 1) Your Letter I/w No. 1339 dated : 24/09/2018
- Your Letter I/w No.1403 dated : 05/10/2018]
- Your Letter I/w No.1754 dated : 04/12/2018
- Your Letter Reminder I/w No.2536 dated 06/03/2019.
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Ezzy Electricals vs State Of Gujarat on 16 February, 2022
Sir, With reference to above subject, in this regard we have received your letter as per
Ref. We are in receipt of ITC – 01 in C.D. and other record dated : 24/09/2018 as you
were unable to upload ITC -01 due to technical error in GSTN portal. On receiving
your application, we have tried to upload ITC – 01 but due to technical issue in the GSTN portal we were unable to upload ITC – 01. Hence we inquired in E.D.P. Cell Gujarat regarding the above matter, they informed us to inform GSTN through nodal officer. We have already informed the nodal officer through our office internal IP messenger (software).
Kindly take note of above as we have intimated our nodal officer hence further action
will be taken from their end.
sd/-
Place : Veraval (V.B. Prajapati)
Date : 11/10/2019 Assistant Commissioner of State Tax
Unit – 87, Veraval.”
3 It appears on plain reading of the aforesaid that the department
tried to upload the ITC – 01, but due to technical glitch in the GSTN portal, the authority concerned was unable to upload the ITC – 01. The authority, thereafter, inquired with the E.D.P. Cell Gujarat as to what can be done in the matter. The E.D.P. Cell Gujarat, in turn, asked the Assistant Commissioner to inform the GSTN through a Nodal Officer.
The Assistant Commissioner informed the Nodal Officer. However, nothing could be worked out.
C/SCA/13091/2020 ORDER DATED: 16/02/2022
4 To a certain extent, the writ applicant also is at fault because
while trying to upload the Form ITC – 01, it appears that a wrong offline tool was used. It is evident from the affidavit-in-reply filed by the department. We quote the relevant averments made in the affidavit-in- reply filed on behalf of the respondent No.5:
“5.1 I say and submit that the primary issue involved in the petition is that the petitioner opted out of the composition scheme w.e.f. 1.4.2018. The petitioner tried to upload form ITC-01 on 17.09.2018. Notification No.42/2018-Central Tax dated 04.09.2018 extended the time limit for filing ITC-01 for a period of 30 days from the date of publication of notification for taxpayers who has filed application in FORM GST CMP- 04 between 02.03.2018 and 31.03.2018. As claimed, the petitioner was
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Ezzy Electricals vs State Of Gujarat on 16 February, 2022
unable to file ITC-01 form due to technical glitches of the GST portal. The screen shot
was submitted by the taxpayer for Technical glitches, which is already at Annexure-C
(pg. no.19).
6. I say and submit that as per technical analysis, the ITC-01 logs of the petitioner (GSTN 24AAOPL0729PIZ9) along with the screen shot of annexed as Annexure-C of page 19 of the writ petitioner were examined in GSTN. No technical glitches of the GST portal were observed in petitioner’s case. From the screen shot annexed by the petitioner, it is observed that the petitioner used the ‘wrong offline tool’ for filing of ITC-01.
GSTN : 24AAOPL0729P1Z9 with Legal Name : KURBANHUSAN ABDRAALI LAXMIDHAR is an active taxpayer on the GST Portal from 1st July 2017. The petitioner opted out of composition on 31 st March 2018.
7. As per the screenshot provided by the petitioner at Annexure-C of the writ petition,
the petitioner was using the offline Tool with version Number Release 2.2.3 which
was last updated on 10/04/2018. On the same screenshot “GSTR Returns” has also
been stated on top which shows that the offline utility was for filing returns and not
ITC-
01. Further, the current version of the ITC-01 offline tool available on the GST portal
is ITC_Offline_v1.0 released on 12 th January, 2018. The numbering of versions of
offline tool is always incremental on the GST portal. The current version of the ITC 01
tool is v1.0, therefore, the previous version cannot be greater than v1.0. It is evident
from the screen shot shared by the petitioner at Annexure-C that the offline tool
which was being used by the petitioner was 2.2.3 which also shows that the petitioner
was using wrong utility for filing ITC-01.
C/SCA/13091/2020 ORDER DATED: 16/02/2022
8 It is apparent from the screen shot provided as Annexure-C of
the writ petitioner that the petitioner was using, the Returns Offline Tool Version
2.2.3. No technical glitches of the GST portal were found with the summary reported
by the petitioner. In view of the above, no technical glitches of the GST portal were found in this matter. The copy of the relevant screen shots of the software are annexed herewith and marked as Annexure-I colly.”
5 Be that as it may, if the writ applicant is otherwise entitled to claim the Input Tax Credit under Section 18(1)(c) of the Act, a technical glitch in the portal should not deprive him of such a claim. It was within the capacity of the department itself to resolve the controversy and see to it that the
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Ezzy Electricals vs State Of Gujarat on 16 February, 2022
needful is done.
- Mr. Uchit Sheth, the learned counsel appearing for the writ applicant is right in his submission that had the department at the earliest point of time brought to the notice of his client about wrong offline tool being used by the writ applicant, then probably, something could have been worked out.
- Be that as it may, it is for the respondents now to do the needful and ensure that the writ applicant is permitted to upload the Form ITC – 01 so as to enable him to claim the Input Tax Credit worth Rs.5 lakh approximately under Section 18(1)(c) of the Act. Mr. Sharma has ensured this Court that the needful shall be done at the earliest.
- We direct the respondents to do the needful and see to it that the writ applicant is able to claim the Input Tax Credit by uploading the Form ITC – 01. Let this exercise be undertaken at the earliest and completed within six weeks from the date of receipt of the writ of this order. One copy of this order shall be furnished at the earliest to Mr. Sharma for its onward communication.
C/SCA/13091/2020 ORDER DATED: 16/02/2022
9 With the aforesaid, this writ application stands disposed of. Direct service is permitted.
(J. B. PARDIWALA, J)
(NISHA M. THAKORE,J)
CHANDRESH
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