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December 13, 2022

Transitional credit cannot be denied merely because petitioner failed to included amount of eligible CENVAT credit at the time limit of filing Form TRAN-1

by CA Shivam Jaiswal in GST, Legal Court Judgement

Transitional credit cannot be denied merely because petitioner failed to included amount of eligible CENVAT credit at the time limit of filing Form TRAN-1

Facts and issue of the case

The facts of the case  petitioner was required to file TRAN-1 in GST portal on or before 27.12.2017 which stood extended from time to time. However, petitioner did not file TRAN-1  in time. Instead, the petitioner sent a representation dated 15.03.2019 to the Commercial Tax Officer, GD-III and stated that the petitioner came to know that there was a technical error only through the findings of the order and decided to claim ITC of Rs.28,29,208/- by resubmitting TRAN-1 as per notification No.48/2018 – Central Tax. It is further case of the petitioner that the petitioner appeared before the Commercial Tax Officer GD-III who informed the petitioner that the last date for filing TRAN-1 had already expired and had been extended upto 31.03.2019 as per Order No.1/2019 dated 31st January 2019 and since it was applicable only for a certain class of registered persons who could not submit declaration in GST TRAN-1 within due date on account of technical difficulties in the common GST portal, the petitioner was not entitled to the benefit thereof.

The respondents on the other hand have stated that on verification https://www.mhc.tn.gov.in/judis W.P.No.33124 of 2019 of the GST portal, it was found that no such return was filed by the petitioner within the period or by 15.03.2019 and therefore, the petitioner was asked to resubmit the letter along with evidence for having entered TRAN-1 in GSTN portal as stipulated in the circular of the Government The respondents have taken a categorical stand that the petitioner submitted another letter on 29.03.2019 enclosing the screen-shot of TRAN-1 in GSTN portal wherein the status clearly shows TRAN-1 not filed and therefore filing of declaration in TRAN-1 is not belatedly available now as the due date is over. It is therefore stated that the petitioner is not entitled to transition of credit.

Being aggrieved by such an order rejecting transitional credit, the petitioner filed a writ petition before the court

Conclusion

The court held that that unutilized ITC on capital goods, service tax or inputs which has been availed validly under Central Excise Act, 1944, Finance Act, 1994 and VAT Act, 2006 cannot be denied. It was further held that merely because GST portal did not permit to rectify mistake in TRAN 1, the petitioner cannot be deprived of its indefeasible right of credit. The High Court directed the respondent to examine the validity of the petitioner’s unutilized amount existing in CENVAT account, and VAT returns and the amount shall be either refunded or allowed to be transitioned irrespective of the fact that petitioner may have failed to file Tran-1 in time. Accordingly, the petition was disposed of in favour of petitioner.

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