-1- NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (T) No. 70 of 2019 M/s Dhamtari Krishi Kendra Infront of old Krishi Upaj Mandi, Dhamtari (A Proprietorship Firm) Through Sole Proprietor Mr. Amit Rathi, S/o Shri Laxmi Narayan Rathi, Aged About 39 Years, (UID - 7591 4757 3005), R/o 35, Matri Vihar Colony, Dhamtari, Tahsil and District - Dhamtari Chhattisgarh. ---Petitioner(s) Versus 1. Union of India Through Its Secretary, Finance, Department of Revenue, Room No. 46, North Block, New Delhi 110001. 2. Goods and Service Tax Council Through Its Chairman / Secretary, Office of GST Council Secretariat, 5th Floor Tower II, Jeevan Bharti Building, Janpath Road, Connaught Place, New Delhi - 110001. 3. State of Chhattisgarh Through Its Secretary, Finance, Central Secretariat, Naya Raipur Chhattisgarh. 4. Principal Commissioner, Central Excise Customs and Service Tax (Central GST and Central Excise), Central Excise Building Tikrapara, Dhamtari Road, Raipur Chhattisgarh. 5. Commissioner, Commercial Tax Behind Rajbhawan, Civil Lines, Raipur Chhattisgarh. 6. GST Officer Dhamtari Commercial Tax/ GST Office, Dhamtari, Tahsil and District Dhamtari Chhattisgarh. ---Respondents For Petitioner : Shri Rajkamal Singh, Advocate. For Respondent 1&2 Shri Himanshu Pandey on behalf of Shri B. Gopa Kumar, Asst. Solicitor General. For State : Shri Sidharth Dubey, Dy. Govt. Advocate. For Respondent 4 : Shri Maneesh Sharma, Advocate. Hon'ble Shri Justice P. Sam Koshy Order on Board 17.07.2020 1. present is second round of litigation. grievance of petitioner is in respect of his unable to upload GST TRAN-1 and TRAN-2 returns on GST web portal by last date prescribed i.e. 27.12.2017. 2. According to petitioner, after new tax regime i.e. GST law came into force, last date for submission of GST Tran-1 and Tran-2 returns was extended by government up till 27.12.2017. petitioner tried to submit returns, however, because of technical glitch faced by -2- petitioner it could not be submitted. petitioner immediately reported this matter to authorities in department on 26.12.2017 itself. petitioner has filed document Annexure P/7 dated 26.12.2017 in this regard and said document also bears seal and signature of Commercial Tax Department having received same. 3. Further, counsel for petitioner also submitted that petitioner had tried to submit TRAN-1 and TRAN-2 returns manually on 18.01.2018 by approaching GST Officers in GST office at District Dhamtari. On same day petitioner also has sent GST TRAN-1 form by post to department. receipt of registered post sent also is enclosed along with present writ petition, which too was not accepted by department which led to petitioner filing writ petition in High Court on 26.02.2018 which was registered as WPT No.68 of 2018 which came up for hearing before this Court on 14.05.2018 and considering all aforesaid aspects submitted by petitioner, High Court disposed of writ petition directing petitioner to approach Nodal Officer at Dhamtari within 4 days by filing detailed representation with all necessary records and documents and authority, in turn, were directed to consider and dispose of same in terms of circular dated 03.04.2018. It was also pointed out by this Court that authorities while deciding claim shall bear in mind that writ petition is pending before High Court since 26.02.2018. 4. Pursuant to which petitioner filed his representation before concerned authorities as directed by this court. authority i.e. Commissioner, State Commercial Tax, in turn, took decision on 14.09.2018 (Annexure P/3) and has refused grant of permission to petitioner to submit TRAN-1 and TRAN-2. rejection has been -3- categorically on ground of petitioner failing to produce any material/evidence to show that he had tried to submit TRAN-1 and TRAN-2 within stipulated period, petitioner faced technical glitch. In Annexure P/3 there is no reference whatsoever by Commissioner in respect of Annexure P/7 dated 26.02.2017 submitted by petitioner in respect of his complaint regarding technical glitch that was faced by him. There is also no reference of attempt made by petitioner to submit TRAN-1 form manually as well as having sent it by post through registered AD. In light of document Annexure P/7, so also documents by which petitioner claims to have submitted TRAN-1 manually on 18.01.2018, finding of Commissioner in Annexure P/3 dated 14.09.2018 prima facie seems to be incorrect. This refusal of granting permission to submit TRAN-1 form on 14.09.2018 has led to filing of present writ petition. 5. counsel for petitioner submits that finding given by Commissioner is totally erroneous as also perverse as it is without proper verification of factual matrix from records. petitioner referred to judgment passed by Madurai Bench of Madras High Court in case of Tara Exports Vs. Union of India, decided on 10.09.2018, wherein Division Bench of Madurai Bench under similar circumstances had granted permission to petitioner to submit TRAN-1. respondents therein were directed to open portal so that petitioner could file TRAN-1 electronically or in alternative it was directed to accept manually filled TRAN-1 and allow input credits. 6. Likewise, counsel for petitioner also referred to judgment of Division Bench of Punjab & Haryana High Court deciding bunch of about more than 100 writ petitions decided on 04.11.2019, lead -4- case being Adfert Technologies Pvt. Ltd. Vs. Union of India & Others. In all these cases also petitioners, for one reason or other could not load prescribed from electronically or they were facing some technical glitch in submitting forms electronically and High Court of Punjab & Haryana considering all submissions made by petitioners, so also by counsel for respondents, vide order dated 04.11.2019 allowed writ petitions permitting them to submit TRAN-1 form. 7. Taking into consideration aforesaid two judgments of Madras High Court as well as Punjab & Haryana High Court, this court is of opinion that respondent State authorities on matter being referred to it by High Court in earlier round of litigation in WPT No.68 of 2018 should have considered contentions of petitioner raised by him in said writ petition wherein itself he had categorically submitted that he has faced certain technical glitches while submitting TRAN-1 forms and report in this regard was lodged on 26.12.2017and he has lodged complaint in this regard to authorities well before last date. In addition, he has also manually submitted same on 18.01.2018 and had also sent it by registered post on same day. All these aspects have not been considered or decided by Commissioner in his order dated 14.09.2018 in absence of any reasons and discussion by Commissioner to contentions and submissions of petitioner, this court is of view that said order dated 14.09.2018 needs to be reconsidered. 8. Accordingly, this court remits matter back to Commissioner, Commercial Tax for reconsideration and for passing of fresh order. -5- 9. While remitting matter, this court would like to bring to notice of Commissioner that he should keep in mind that petitioner has produced certain documents of his being unable to submit his TRAN-1 form electronically; complaint of which was submitted in department; document is there which shows receipt of complaint by department before last date i.e. 27.12.2017. In addition, there is also document which shows that he had manually submitted it and had also sent it by registered post to department within period of less than three weeks from last date of 27.12.2017. 10. Under GST Law, Section 117(1)A, GST Council has been empowered to extend date for submission of declaration electronically in Form GST TRAN-1 in respect of those persons who could not submit said declaration by due date on account of technical difficulties on common portal and in respect of whom Council has made recommendation for such extension. If required, Commissioner can refer matter to GST Council with its report for taking appropriate sanction/recommendations from GST Council. 11. Keeping in view fact that petitioner had timely intimated department in respect of technical glitch, in addition he had also promptly submitted his forms manually as well as had sent it by registered post; he had also approached High Court immediately in year 2018 itself which was refused by Commissioner on 14.09.2018 thereafter again petitioner has filed this present writ petition also immediately, thus, petitioner has been promptly pursuing his claim all along thereafter on basis of recommendation, ireferred by Commissioner to GST council, appropriate decision may be taken at earliest. -6- 12. Considering element of time which has consumed in course of litigation, it is expected that Commissioner, Commercial Tax shall take decision at earliest preferably within outer limit of 60 days from date of receipt of copy of this order. 13. In event, if Commissioner, Commercial Tax makes reference to GST Council, it is expected that Council also, in turn, takes early decision on reference made by Commissioner preferably within period of 90 days from date of receipt of reference by Commissioner. Sd/- (P. Sam Koshy) Judge inder Dhamtari Krishi Kendra v. Union of India / Goods and Service Tax Council, New Delhi / State of Chhattisgarh / Principal Commissioner, Central Excise Customs and Service Tax (Central GST and Central Excise), Chhatisgarh