C/SCA/9237/2019 ORDER IN HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 9237 of 2019 GALLOPS INFRASTRUCTURE LTD Versus UNION OF INDIA Appearance: UCHIT N SHETH(7336) for Petitioner(s) No. 1 MR SOAHAM JOSHI, AGP GOVERNMENT PLEADER(1) for Respondent(s) No. 2,3 MR NIRZAR S DESAI(2117) for Respondent(s) No. 1,4 CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 26/02/2020 ORAL ORDER (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Rule returnable forthwith. Mr. Nirzar Desai, learned counsel waives service of notice of rule for and on behalf of respondents nos.1 and 4. Mr. Soaham Joshi, learned AGP waives service of notice of rule for and on behalf of respondents nos.2 and 3. 2. By this writ application under Article 226 of Constitution of India, petitioner prays for following reliefs: 24(A) be pleased to issue writ of mandamus directing learned Respondents to act on representations made by petitioner and grant transitional input tax credit under Section 140 of GST Acts as claimed by petitioner in GST TRAN 1 which is saved but not filed ; (B) Pending notice, admission and final hearing of this petition, be pleased to direct learned respondents to act on representations Page 1 of 5 Downloaded on : Fri Jun 18 10:31:55 IST 2021 C/SCA/9237/2019 ORDER made by petitioner and grant transitional input tax credit under Section 140 of GST Acts as claimed by petitioner in GST TRAN 1 which is saved but not filed ; (C) Ex parte ad interim relief in terms of prayer B may kindly be granted; (D) Such further relief(s) as deemed fit in facts and circumstances of case may kindly be granted in interest of justice for which act of kindness your petitioner shall forever pray. 3. At outset, Mr. Soaham Joshi, learned AGP has drawn attention of Court that in 4th meeting of IT Grievance Redressal Committee [IT GRC] held on 12th February, 2019, it is observed by respondent no.4 that case of petitioner is falling under 'not having technical glitch' and therefore, petitioner was not allowed to upload Form GST TRAN 1. 4. On other hand, Mr. Uchit Sheth, learned counsel appearing for petitioner submitted that at time of uploading Form GST TRAN 1 due to technical glitch, same could not be uploaded, but petitioner could able to save form online. According to Mr. Sheth, there is no fault on part of petitioner so as to avail benefit of transitional credit as per Section 140 of Central/ Gujarat Goods and Service Tax Act, 2017. 5. facts are not in dispute. petitioner is Private Limited Company. In order to avail benefit of Cenvat Credit of Rs.59,37,604/ as per return filed under Finance Act for quarter ending on 30th June, 2017 and excess input tax credit balance of Rs.7,05,676/ as per return filed under Vat Act for month ending on 30th June, 2017 for service tax was entitled to carry forward same under Central/Gujarat Goods and Service Tax Act, 2017, Page 2 of 5 Downloaded on : Fri Jun 18 10:31:55 IST 2021 C/SCA/9237/2019 ORDER [herein after referred to as 'The Act, 2017'], which is came into force from 01st July, 2017 and according to provisions of Section 140 of Act read with Rule 117 of Central Goods and Services Tax Rules, 2017 [hereinafter referred to as, 'The Rules']. 6. petitioner has tried to upload Form GST TRAN 1 as prescribed under Rule 117 of GST Rules. However, same could not be uploaded. petitioner was able to save form online. 7. In view of aforesaid situation and in view of Order No.1/2020 GST, dated 7th February, 2020 passed by Central Board of Indirect Taxes and Customs with regard to extension of time limit for submitting declaration in Form GST TRAN 1 under Rule 117 (1A) of Central Goods and Services Tax Rules, 2017 in certain cases. Order reads thus: F.No.CBEC 20/06/17/2018 GST (Pt.I) Government of India Ministry of Finance (Department of Revenue) (Central Board of Indirect Taxes and Customs) *** New Delhi, 7th February, 2020 Order No.01/2020 GST Subject: Extension of time limit for submitting declaration in FORM GST TRAN 1 under rule 117(1A) of Central Goods and Service Tax Rules, 2017 in certain cases. In exercise of powers conferred by sub rule (1A) of rule 117 of Central Goods and Services Tax Rules, 2017 read with Section 168 of Central Goods and Services Tax Act, 2017, on recommendations of Council, and in super session of Order No.01/2019 GST dated 31.01.2019, except as respects things done or omitted to be done before such super session, Commissioner hereby extends period for submitting declaration in FORM GST TRAN Page 3 of 5 Downloaded on : Fri Jun 18 10:31:55 IST 2021 C/SCA/9237/2019 ORDER 1 till 31st March, 2020 for class of registered persons who could not submit said declaration by due date on account of technical difficulties on common portal and whose cases have been recommended by Council. Sd/ (Yogendra Garg) Principal Commissioner (GST) 8. In view of aforesaid Order No.01/2020 of GST, grievance of petitioner can be redressed, if respondents direct to allow petitioner to upload Form GST TRAN 1 on or before 30th March, 2020. Moreover, petitioner is entitled to credit of Cenvat as per decision of M/S Siddharth Enterprises Vs. Nodal Officer; Special Civil Application No.5758 of 2019 and allied matters; decided on 6th September, 2019. petitioner is entitled to avail benefit of Cenvat Credit under Section 140(3) of Act irrespective of time limit prescribed under Rule 117 of CGST Rules as observed in aforesaid judgment. relevant reads thus: 42. Article 300A provides that no person shall be deprived of property saved by authority of law. While right to property is no longer fundamental right but it is still constitutional right. CENVAT credit earned under erstwhile Central Excise Law is property of writ applicants and it cannot be appropriated for merely failing to file declaration in absence of Law in this respect. It could have been appropriated by government by providing for same in CGST Act but it cannot be taken away by virtue of merely framing Rules in this regard. 43. In result, all four writ applications succeed and are hereby allowed. respondents are directed to permit writ applicants to allow filing of declaration in form GST TRAN 1 and GST TRAN 2 so as to enable them to claim transitional credit of eligible duties in respect of inputs held in stock on appointed day in terms of Section 140(3) of Act. It is further declared that due date contemplated under Rule 117 of CGST Rules for purposes of claiming transitional credit is procedural in nature and thus should not be construed as mandatory provision. 9. In view of above dictum, respondents are directed to Page 4 of 5 Downloaded on : Fri Jun 18 10:31:55 IST 2021 C/SCA/9237/2019 ORDER permit petitioner to upload Form GST TRAN 1, which is saved by petitioner as per Order No.1/2020 GST, dated 7th February, 2020 passed by Central Board of Indirect Taxes and Customs. Such exercise shall be completed within period of two weeks from date of receipt of order. Rule is made absolute to aforesaid extent with no order as to cost. (J. B. PARDIWALA, J) (BHARGAV D. KARIA, J) aruna Page 5 of 5 Downloaded on : Fri Jun 18 10:31:55 IST 2021 Gallops Infrastructure Ltd v. Union of India