Calcutta High Court (Appellete Side)
Haldia Petrochemicals Ltd. & Anr vs Commissioner Of State Taxes & Ors on 1 July, 2022
01.07.2022
Sl no. 18-25
Ct no. 2
P.M.
W.P.A. 12239 of 2019
With
WPA 10104 of 2021
With
WPA 5065 of 2020
With
WPA 5573 of 2020
With
WPA 5627 of 2020
With
WPA 5734 of 2020
with
CAN 1 of 2020
CAN 3681 of 2020
With
WPA 7926 of 2021
With
WPA 8985 of 2020
Haldia Petrochemicals Ltd. & Anr.
Vs.
Commissioner of State Taxes & Ors.
Mr. Vinay Kr. Shraff,
Ms. Priya Sarah Paul,
Mr. Kaushal Agarwal
........for the petitioner
in WPA 12239 of 2019, WPA 5627 of 2020,
WPA 5734 of 2020, WPA 7926 of 2021 and
WPA 8985 of 2020
Mr. A. Ray, Ld. G.P.
Mr. T. M. Siddiqui,
Mr. S. Mukherjee,
Mr. D. Ghosh,
Mr. N. Chatterjee
.........for the State.
Mr. K.K. Maiti,
Mr. Bhaskar Prosad Banerjee,
Ms. Aishwarya Rajyashree,
Mr. Tapan Bhanja
... for CGST authority
2
Mr. Siddhartha Lahiri,
Mr. Tapan Bhanja.
.........for the UOI. in
WPA 7926 of 2021.
Mr. Sanjay Bhaumik,
Mr. Indranil Banerjee,
Mr. Subrata Mukherjee.
.........for the petitioner in
WPA 5065 of 2020.
Mr. Sandip Choraria,
Mr. R. Chatterjee,
.........for the petitioner, in
WPA 10104 of 2021.
Ms. Sweta Mukherjee
... for petitioner in
WPA 5573 of 2020
Mr. Sujit Mitra
.... for Union of India in
WPA 5573 of 2020
Heard learned advocate appearing for the
parties.
All these writ petitions are heard and disposed
of by this common order for similarity of the issues
involved in all these writ petitions.
According to the petitioner, in these bunch of
writ petitions are similar in facts and question of law
involved like in a bunch of cases which have been
finally decided by the Division Bench of this Court by
a judgement dated 14.12.2021 in the case of Nodal
Officer, Jt. Commissioner, IT Grievance, GST
Bhawan - Vs - M/s. Das Auto Centre being MAT 552
3
of 2020 with CAN 1 of 2020 and CAN 2 of 2020 and
another Division Bench judgement of this Court
dated 27th April, 2022 in the case of Principal
Commissioner of CGST & CX, Howrah
Commissionerate - Vs - Bengal Hammer Industries
(P) LTD. & Ors. being APOT No. 40 of 2022 with GA 2
of 2022 and WPO 240 of 2019 and petitioner also
relies on a recent unreported decision of the Bombay
High Court, dated 27th June, 2022 in the case of
Chep India Private Limited - Vs - Union of India &
Ors. being Writ petition No. 1075 of 2021.
In my view relevant portion of the judgement of
the appeal Court, dated 14.12.2021 in the case of
Nodal Officer, Jt. Commissioner, IT Grievance, GST
Bhawan (Supra) are required to be quoted as
hereunder :
In the bunch of writ petitions the facts may be
slightly different in the sense that each of the writ
petition may have a peculiar problem but the common
feature in all the writ petitions is that on account of a
technical glitch or on account of the assesses not being
felt sensitized with the system or on account of other
connectivity issues or when the assesses/dealers are
located in remote corners of the State Form TRAN-1
could not be uploaded in time or in appropriate form.
4
The other common but most important feature in all
these cases is the entitlement of the writ petitioners to
the input credit has crystallized. This crystallized
right, which ripened into the vested right, is now being
denied to the writ petitioners on account of procedural
problem. In this factual background, we require to
examine as to whether the order or direction passed
by the learned Single Judge was appropriate or
otherwise.
Thus, we are fully convinced that the decision
which were rendered above have clearly brought out
the difficulties faced by the assesses and also as to
how the assesses having substantially complied with
the requirement under law and having been entitled to
credit on account of transition to the GST regime which
is beyond the purview of the assessee and the
assessee cannot be put to prejudice on account of
technicalities. Thus, keeping the underlying principle
in mind if the matter is examined then we are inclined
to lean in favour of the writ petitioners and affirm the
directions issued by the learned Single Judge. We note
from the directions issued by the learned Single Judge
that the authorities have been directed to open the
portal so that the assessee may be able to file their
respective TRAN-1 return or revise return or re-revise
5
return. In our considered view, this would be a
difficult exercise and such cannot be run by the
assessing Officer in whose jurisdiction the assessee is
carrying business. It probably will have to be done at
the very higher level and consequently direction, if
any, issued to open the portal, would become
unworkable qua prayer made by the writ petitioners.
While pondering on the face of the issue, we refer the
decision of the Punjab and Haryana High Court in the
case of Hans Raj Sons vs. Union of India reported in
2020 (34) GSTL 58 (P & H). In the said decision the
Court while allowing the writ petition had granted two
options one by directing opening of the portal and in
case of non-opening of portal the writ
petitioner/assessee will be entitled to make unutilized
credit in their GST 3B forms to be filed on the monthly
basis. This in our considered view, will be a workable
solution and the Assessing Officer will be entitled to
examine the legality of the claim on such form being
filed by the assessee.
Thus, for the above reasons, we find that the
substantial part of the order and the directions issued
by the learned writ Court as well as reasoning given
merits acceptance. However, we are of view that
instead of directing the portal to be open, the direction
6
issued in Hans Raj Sons (supra) is more assessee
friendly. We also find identical directions have been
issued in the case of Amba Industrial Corporation vs.
Union of India reported in (2020) 117 Taxman. Com
195 (P & H).
Considering and following the aforesaid
judgements of the Division Bench of this Court as
well as Bombay High Court all these writ petitions
are disposed of by granting liberty to the petitioners
to file individual tax credit in GSTR-3b forms for the
month of June, 2022 to be filed in the month of July,
2022 subject to verification of genuineness of the
claim of the petitioner in all these cases and
respondent GST authorities concerned shall allow
the claim of these writ petitioners if it is found that
the cases of the writ petitioners are similar to the
facts involved in all the aforesaid decisions. Though
Mr. Maiti, learned advocate appearing for the
respondents submits that the facts involved in these
writ petitions are not similar to the facts involved in
the aforesaid judgments of the Division Bench of this
Court but that will be subject to verification by the
assessing officers.
With this observation all these writ petitions
being W.P.A. 12239 of 2019, WPA 10104 of 2021,
WPA 5065 of 2020, WPA 5573 of 2020, WPA 5627 of
2020, WPA 5734 of 2020 with CAN 1 of 2020, CAN
3681 of 2020, WPA 7926 of 2021 and WPA 8985 of
2020 stand disposed of.
(Md. Nizamuddin, J.)
