Transitional Credit not allowed if assessee failed to provide evidence of non-uploading of Tran-1 due to technical glitch: HC
Relevant Extract of Judgement:
A perusal of the above communication dated 12.12.2019 reveals that the GST Council referred to the ITGRC meeting, wherein, cases of the petitioners were considered and indicated that their cases fell in B-1 category and B-1 category has been described as ‘as per GST system log, there are no evidences of error or submission/filing of Tran-1’.
It appears that as regard the status of filing/submission of Form GST Tran-1 on part of the petitioners is concerned, it had already been considered by the ITGRC meeting held on 26.10.2018 in the case of S.B.C.W.P. No. 226/2020 and the said aspect was not brought to the notice of the Court while passing the order dated 21.11.2019 requiring making of the representation and its consideration by GST Council, however, in the case of petitioner in S.B.C.W.P. No. 440/2020 has been considered after passing of the order.
In view of the fact that this Court while deciding the writ petitions filed by the petitioners had laid down the specific parameters for grant of relief to the petitioners and it has been found by the respondents as a fact that there was no evidences of error or submission/filing of Form GST Tran-1 by the petitioners, the petitioners apparently are bound by the said outcome and, as such, are not entitled to any relief.
So far as the submissions made pertaining to the vested right and the fact that as the petitioners have admittedly paid the taxes and are, therefore, entitled for the relief, suffice it to notice that the petitioners had questioned the validity of provisions of Section 140 of the CGST Act and Rule 117 of the CGST Rules in the earlier writ petition, which plea was negated.
The theory of vested rights and the implication of limitation on the said aspect of vested right has been considered by Hon’ble Supreme Court in the case of Osram Surya (P) Ltd. (supra), wherein, while considering the proviso II to Rule 57G of the Act of 1944 it was laid down that by providing limitation the statute has not taken away any of the vested rights, which accrue to the manufacturers and what is restricted is the time, within which, the manufacturer has to enforce that right and, therefore, once the provisions of Rule 117 of the CGST Rules, which prescribe limitation has been upheld, the plea raised pertaining to the denial of vested right on account of petitioners failing to submit/file Form GST Tran-1 in time cannot be countenanced.
In the judgments of various High Courts cited by learned counsel for the petitioners, in none of the cases the petitioners therein were given specific directions to place material with regard to the technical glitches and attempt on their part to file/submit the Form by the High Court in petitions filed by them and finding of fact had been recorded pertaining to failure on part of the petitioners therein to file/submit Form GST Tran-1 by the GST Council.
In view thereof, the directions given in the judgments relied on by leaned counsel for the petitioners cannot come to the rescue of the petitioners now, once under the directions of this Court a finding with regard to the same has come on record.
In view of the above discussion, no case for interference as sought by the petitioners is made out in the present writ petitions. The petitions are accordingly dismissed.
No order as to costs.
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