Jai Enterprises vs Union Of India And Others
2021 Latest Caselaw 75 j&K

                                                                      204
                  HIGH COURT OF JAMMU AND KASHMIR
                             AT JAMMU
CJ Court

Case: OWP No. 513 of 2019 [WP(C) No. 1186/2019]
(Through Video Conferencing)


Jai Enterprises                                   ...Petitioner(s)/Appellant(s)

                                  Through: Sh. M. K. Bhardwaj, Sr. Advocate
                                           with Sh. Gagan Kohli, Advocate.

                            v/s
Union of India and others                                    .... Respondent(s)
                                  Through: Sh. Jagpaul Singh, CGSC for
                                           respondent Nos. 1 to 3 and 6
                                           Sh. D. C. Raina, Advocate General
                                           with Sh. K. D. S. Kotwal, Dy. AG
                                           for Nos. 4 and 5

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE


                                      ORDER

1. Heard Sh. M. K. Bhardwaj, Senior Advocate assisted by Sh. Gagan

Kohli, learned counsel for the petitioner and Sh. Jagpaul Singh, CGSC for

respondents No. 1 to 3 and 6 and Sh. D. C. Raina, learned Advocate General

assisted by Sh. K. D. S. Kotwal, learned Dy. AG for the respondent Nos. 4 and

5.

2. The issue in this petition is regarding carrying forward of Rs.

33,55,295/- lying in petitioner's Cenvat account credit on 08.07.2017 when the

GST was introduced in the State of Jammu and Kashmir. It appears that the

petitioner instead of submitting TRAN-1 form for claiming ITC submitted

GSTR-3B. The Assistance Commissioner State Taxes (Technical) Jammu vide

letter/order dated 07.03.2019 informed that the reason for non-filing of TRAN-

1 was not due to technical glitch in filing TRAN-1, so the case of the petitioner

could not be considered.

3. Sh. Jagpaul Singh, learned counsel submits that as the petitioner was

required to submit TRAN-1 within the time prescribed though, has submitted

GSTR-3B and now the petitioner may reverse the same and proceed for

submitting of TRAN-1 for claiming the said benefit.

4. It is stated that because of the lack of awareness about the procedure

to claim the benefit, the petitioner could not submit TRAN-1 within prescribed

time but the respondents are denying the same to the petitioner though the

petitioner had mentioned about the credit sought to be claimed, in GSTR-3B

return submitted by the petitioner within the prescribed period. The

respondents have neither disputed that the petitioner is not entitled to carry

forward the said credit nor they have disputed the correctness of the amount.

Even they have not disputed that the petitioner has not reflected the said credit

in GSTR-3B filed within the stipulated time. Only objection that has been

raised by the respondents is that TRAN-1 form was required to be submitted

within the prescribed period but was not submitted by the petitioner. Learned

counsel for the petitioner at this stage informs that the portal for submitting

TRAN-1 is lying closed and it is not possible for the petitioner to submit the

claim in TRAN-1. Reliance has been upon the decision in the case of Adfert

Technologies Pvt. Ltd. and ors. v Union of India and Ors, [2019] SCC

Online P&H 5701. We are of the view that the petitioner cannot be deprived

of the benefit of claiming the credit lying in its account on the stipulated date

only on the basis of procedural or technical wrangles that one form TRAN-1

was not filled by the petitioner particularly when the petitioner has reflected the

said credit in its return GSTR-3B. It would be apt to note the paragraph No. 14

of the judgment in Adfert Technologies Pvt. Ltd.'s case (supra) and the same

is reproduced as under:

"Having scrutinized record of the case(s) and heard arguments of both sides, we find that on the introduction of GST regime, Government granted opportunity to registered persons to carry forward unutilized credit of duties/taxes paid under different erstwhile taxing statues. GST is an electronic based tax regime and most of people of India are not well conversant with electronic mechanism. Most of us are not able to load simple forms electronically whereas there were a number of steps and columns in TRAN-1 forms thus possibility of mistake cannot be ruled out. Various reasons assigned by Petitioners seem to be plausible and we find ourselves in consonance with the argument of Petitioners that unutilized credit arising on account of duty/tax paid under erstwhile Acts is vested right which cannot be taken away on procedural or technical grounds. The Petitioners who were registered under Central Excise Act or VAT Act must be filing their returns and it is one of the requirements of Section 140 of CGST Act, 2017 to carry forward unutilized credit. The Respondent authorities were having complete record of already registered persons and at present they are free to verify fact and figures of any Petitioner thus inspite of being aware of complete facts and figures, the Respondent cannot deprive Petitioners from their valuable right of credit."

5. The above judgment was not interfered with by the Apex Court in

SLP preferred against the same.

6. In view of what has been stated above, we direct the respondents to

permit the petitioner to submit the TRAN-1 either electronically or manually

on or before 15.03.2021 and the petitioner shall coordinate with the

respondents for the submission of TRAN-1as directed.

7. Disposed of alongwith connected CMs.

                  (RAJNESH OSWAL)                      (PANKAJ MITHAL)
                         JUDGE                          CHIEF JUSTICE
Jammu
05.02.2021
Rakesh