Union Of India vs M/S Malnad Projects Private Ltd
2022 Latest Caselaw 3465 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 2ND DAY OF MARCH, 2022

                        PRESENT

          THE HON'BLE MRS.JUSTICE S.SUJATHA

                          AND

 THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

               W.A.No.1249/2021 (T - RES)


BETWEEN :

1.     UNION OF INDIA
       THROUGH ITS REVENUE SECRETARY
       MINISTRY OF FINANCE
       (DEPARTMENT OF REVENUE)
       NO.137, NORHT BLOCK
       NEW DELHI-110001

2.     THE CENTRAL BOARD OF
       INDIRECT TAXES AND CUSTOMS,
       THROUGH ITS CHAIRMAN
       NORTH BLOCK, NEW DELHI-110001.

3.     GOODS & SERVICE TAX COUNCIL
       FIFTH FLOOR, TOWER II,
       JEEVAN BHARTI BUILDING,
       JANAPATH ROAD, CONNAUGHT PLACE,
       NEW DELHI-110001

4.     THE COMMISSIONER OF CENTRAL TAX
       BANGALORE EAST,
       C.R.BUILDING, QUEENS ROAD,
       BENGALURU-560001.

5.     THE ASSISTANT COMMISSIONER
       OF CENTRAL TAXES,
       EAST DIVISION-7, BMTC BUS STAND,
                            -2-



        HAL AIRPORT ROAD, DOMLUR,
        BENGALURU-560071.             ...APPELLANTS

     (BY SRI JEEVAN J. NEERALGI, STANDING COUNSEL FOR
                DEPARTMENT OF CETRAL TAX.)


AND :

1.      M/s MALNAD PROJECTS PRIVATE LTD.,
        HAVING ITS ADMN. OFFICE AT
        IMAGINE NO.78, ITPL MAIN ROAD,
        EPIP ZONE, WHITEFIELD ROAD,
        BENGALURU-560066
        REP BY ITS DIRECTOR
        SRI KAMAL SAGAR
        S/O SRI SURENDRA KUMAR SAGAR
        AGED ABOUT 50 YEARS
        R/AT NO.403, FOOTPRINTS,
        NO.1, 7TH CROSS, 7TH MAIN,
        HAL 2ND STAGE, BENGALURU-560008.

2.      THE STATE OF KARNATAKA
        THROUGH THE GOVERNMENT PLEADER,
        HIGH COURT OF KARNATAKA,
        BENGALURU-560001              ...RESPONDENTS

             (GOVERNMENT ADVOCATE SERVED.)


     THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER OF THE LEARNED SINGLE JUDGE PASSED IN
W.P.NO.10932/2021 DATED 25.08.2021.


     THIS APPEAL COMING ON FOR PRELIMINARY HEARING,
THIS DAY, S. SUJATHA, J., DELIVERED THE FOLLOWING:
                                  -3-



                          JUDGMENT

This intra Court appeal is directed against the

order dated 25.8.2021 passed in W.P.No.10932/2021,

whereby the petition filed by the respondent - assessee

has been allowed permitting the assessee to file/revise

TRAN-1 either electronically or manually within a period

of thirty days.

2. This issue is no more res integra in view of

the law laid down by the Co-ordinate Bench of this

Court in WA.No.18/2020 and allied matters

(23.2.2021), which has been followed in

W.A.No.461/2020 and other such identical matters.

3. It is beneficial to quote paragraphs 49 to 56

of the order passed in WA.No.18/2020, which read

thus;

"49. In this context, it would also be useful to place reliance on the judgments relied upon by the learned single Judge in the case of Adfert Technologies and Willowood Chemicals (supra) wherein the Punjab and Haryana High Court considered the case of the assessees who had filed the writ petitions under Article 226 of the Constitution permitting them to carry forward unutilised CENVAT credit of duty paid under Central Excise Act, 1944 as well as the Input Tax Credit under VAT Act of the respective States. The said decision referred to above has been relied upon by the learned single Judge.

50. Learned single Judge has also placed reliance on Krish Automotors Pvt. Ltd. Vs. Union of India, [(2019(29) G.S.T.L 584 (Del.)] and has ultimately granted the very relief that was granted by the Punjab and Haryana High Court in Adfert Technologies (supra) by prescribing the timeframe within which the assessees could have filed, either electronically or manual

statutory forms on or before 31.12.2019. Further, the respondents have given the liberty to verify the genuineness of the merits of the case in accordance with law.

51. We have adverted to the background and the historical perspective and the manner in which Rule 117 of the Rules was worded initially and as to how with the passage of time, subsequent to 27.12.2017, amendments were made to the said Rule by extending the time for the purpose of submitting the declaration electronically in Form GST TRAN-1. Ultimately, insertion of sub-rule (1A) to Rule 117 with effect from 10.09.2018 was effected. Even thereafter, the sub-rule was amended not once, but thrice so as to extend the time from 31.03.2019 to 31.03.2020 and ultimately, it was extended to 31.08.2020. The last extension upto 31.08.2020 was in exercise of the powers conferred under Section 168A of the Act by insertion of Section 117(1A) of the Act by way of an amendment. This was on the

recommendation of the GST Council whereby, earlier Notification No.35/2020-CT dated 03.04.2020 was amended. This was done by extending the time period granted upto 30.06.2020 by the Notification dated 03.04.2020 issued in the interregnum. In this context, it would be useful to refer to Section 172 of the Act, which reads as under:

"Removal of difficulties.

172. (1) If any difficulty arises in giving effect to any provisions of this Act, the Government may, on the recommendations of the Council, by a general or a special order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act or the rules or regulations made thereunder, as may be necessary or expedient for The purpose of removing the said difficulty:

PROVIDED that no such order shall be made after the expiry of a period of three years from the date of commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be, after it is made, before each House of Parliament."

52. Therefore, on a careful consideration of the judgments cited by the learned senior counsel and learned counsel for respondents in light of the order impugned, we find that the learned single Judge has been persuaded by the judgment passed in Adfert Technologies in coming to the conclusion that the assessees herein must be granted relief by giving them another opportunity to file/revise TRAN-1 either electronically or manually on or before 31.12.2020. We find that the reasoning of the learned single Judge and the relief granted would not call for any interference except to the extent of extending the time

within which they would now have to file TRAN-1. The said time-frame has now expired even after successive extensions on 30.08.2020. Therefore, the respondents-

assessees are permitted to file/revise TRAN- 1 either electronically or manually on or before 31.03.2021. The revenue is at liberty to verify the genuineness or the merits of the claim in accordance with law.

53. Insofar as Writ Appeal No.56 of 2020 is concerned, learned counsel, Sri.Jeevan J.Neeralagi, submitted that in this case, the respondent-assessee filed GST TRAN-1 on 16.09.2017 and revised GST TRAN-1 on 29.01.2017, which was the last date for filing of the same. Either in the initial filing or in the revised filing, the respondent-assessee did not avail of CENVAT credit for the period from April 2016 to June 2017. Hence, they preferred Writ Petition No.26410 of 2019 (T- RES) and have now been granted the benefit of the learned single Judge's order.

54. Learned counsel, Sri.Jeevan J.Neeralagi submitted, this case is not a case where there was belated filing of TRAN-1 or revised TRAN-1, but a case where the said filings took place in time, but without adverting to the CENVAT credit facilities at all. In the circumstances, no fresh opportunity can be given to the respondent to once again file TRAN-1 returns. That in this case, the question of there being any technical difficulty on the common portal does not arise at all and therefore, learned single Judge ought to have dismissed the writ petition.

55. Insofar as Writ Appeal No.56 of 2020 is concerned, we do not find that the said case could be considered independent of the other cases. The relief granted by the learned single Judge to the respondent- assessee in that case is similar to the one granted to the assessees in the said cases also. This is because the object and purpose is to give the benefit of CENVAT credit earned under the erstwhile tax regime.

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56. Hence, we find no reason to interfere with the order of the learned single Judge and hence, Writ Appeal No.56 of 2020 and Writ Appeal Nos.18, 104, 105, 19, 206, 207, 208, 209, 210, 23, 27, 294, 38, 51, 56, 75, 292, 293, 295, 296, 298 and 556 of 2020 stand dismissed."

4. In view of the aforesaid, we find no reason to

interfere with the order passed by the learned Single

Judge following the decision of the Co-ordinate Bench of

this Court in W.A.No.461/2020 (1.4.2021).

Resultantly, writ appeal stands dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

nd