1. Sri. Girish Hulmani, learned counsel accepts notice for respondent No.6. He files statement of objections. The same is taken on record. The objections have been served on the counsel for the petitioner on 10.11.2021.

2. The petitioner is before this Court, seeking for the following reliefs:

(i) Issue a writ of certiorari, or such other writ, order or direction in the nature of a writ of certiorari, to strike down/read down sub-rule 1(A) to Rule 117 of CGST Rules, 17 inserted by Notification No.48/2018 CT dated 10.09.2018 (Annexure-T) by Respondent No.1, on the ground that the term ‘technical difficulties on the common portal’ is arbitrary, ultra vires S. 140(3) of CGST Act, 17 and/or to the extent that the impugned rule restricts extension of time limit only to those registered persons in respect of whom Council has made recommendation;

(ii) Issue a writ of Certiorari, or such other Writ, Order or direction in the nature of a writ of certiorari, quashing part 2 and 5.3 of Circular No.No.39/13/2018 dated 03.04.2018 issued by the 2nd respondent, vide Annexure-S, imposing condition that petitioner shall enclose evidence to establish bona fide attempt to comply with law’ as being illegal, arbitrary and ultra vires Section 140 of CGST Act, 17, and Rule 117 of CGST Rules, 17 since no such condition is mentioned either in the Act or in the Rules;

(iii) Issue a writ of Certiorari, or such other Writ, Order or direction in the nature of a writ of certiorari, striking down proviso to Rule 117(1) of CGST Rules, 17 issued by the 1st respondent vide Annexure-V, inserted by Notification No.10/17 CT dated 28.06.2017 as ultra vires S. 140(3) of CGST Act, 17;

(iv) Issue a writ of Certiorari, or such other Writ, Order or direction in the nature of a writ of certiorari, striking down CBEC Order No.9/17 GST dated 15.11.2017 issued by Respondent NO.4 (Annexure-W) on the ground that he did not have the authority, power and jurisdiction to prescribe time limit by way of extension;

(v) Issue a writ of Certiorari, or such other Writ, Order or direction in the nature of a writ of certiorari, quashing the decision of respondent No.3 of not granting petitioner another opportunity to file Form TRAN 1 and conveyance of the said decision by respondent No.5 vide letter bearing No.C.No.IV/16/504/2019 PCCO GST Policy/137 and D/N- 202001570000002FACOF/137 dated 07.01.2020 (Annexure-P) as being illegal, arbitrary and ultra vires Section 140 of CGST Act, 17 and Rule 117 of CGST Rules, 17;

(vi) Issue a writ of Mandamus, or such other writ, order or direction, as this Hon’ble Court may deem fit directing respondent No.3 to approve petitioner’s case and grant another opportunity to file Form TRAN 1 electronically (Annexure-X) and allow petitioner to claim TRANsition credit of excise duty and NCCD paid on two wheelers stock held as on 30.06.2017 or alternatively allow petitioners to avail said Transition credit in their electronic credit ledger through GSTR 3B return on the basis of manually filed Form TRAN 1;  

(vii) To pass such other orders, directions and writs as this Hon’ble Court may deem fit in the facts and circumstances of the case, and in the interest of justice, including the costs of this writ petition.

3. In the petition there are various submissions made as regards the attempts made by the petitioner to upload the Tran 1 form on the website of the respondents. It is contended that, it was sought to be uploaded and it was contended that there were various issues in the software and therefore, the same was not properly uploaded.

4. Learned counsel for the respondents contends that, all the statement are not correct inasmuch as the system of the respondent was working properly and Tran 1 could have been uploaded which has not been done and that the petitioner has not produced any documents to establish the attempt made by the petitioner.

5. The above allegations and counter allegations are not relevant to be considered by this Court in view of the decision of this Court in Asiad Paints Limited Vs. Union of India, reported in 2020 34 GSTL 50 (Kar.), more particularly paragraph Nos.7, 8, 9 and 10 thereof which are reproduced hereunder for easy reference;

6. In the circumstances, it is obvious that two types of cases would arise for consideration namely:

i. Registered persons who did/could not file TRAN-1 by 27.12.2017 and have no evidence of attempt to load TRAN-1.

ii. Registered persons loaded TRAN-1 by 27.12.2017 but there is some error and they intend to revise already loaded TRAN- 1.

7. In the light of Section 140 of the Act, read with Section 142 and 172 as well as Rule 117(1A), it is clear that though there is no explicit provision to permit revision filing of TRAN-1 at an extended period for the registered persons who fail to furnish the material for having filed the same by 27.12.2017, in the absence of any specific time prescribed under Section 140 of the Act and in terms of introduction of Rules 117(1A) and 120A, the arguments advanced by the Learned Counsel for the revenue could not be countenanced. The legitimate rights of the petitioners to carry forward unutilized credit of duty/tax already paid cannot be denied on technicalities i.e. on the ground of limitation by framing the Rules in the absence of law in the Act, as the GST regime is a new tax regime that too in the transitional period. Even in terms of Section 172 any suitable order can be passed within a period of three years if any difficulty arises in giving effect, to any provisions of the Act for the purpose of removing the said difficulty. This Court has no reason to differ from the findings of the Hon’ble Court referred to above.

8. For the reasons aforesaid, the request of the petitioners to extent the time prescribed under Rule 117 cannot be denied.

9. Accordingly, writ petitions are allowed directing the respondents to permit the petitioners to file/revise the TRAN-1 either electronically or manually on or before 31.12.2019.”

9. On an appeal being filed against the said decision, the Division Bench of this Court has also confirmed the same in the decision of Union of India Vs. Asiad Paints Limited reported in 2021 (49) GSTL 256 (Kar.).

10. This Court has categorically came to the conclusion that the CGST provisions more particularly relating to filing and uploading of Forms is a transitory provision and on account of the same, a beneficial treatment has to be extended to the assesse so as to permit the assessee to make his filings and obtain any input credit if so entitled.

11. Though the allegations and counter allegations have been made as regards uploading or non-uploading, ability to upload and inability to upload, the fact remains that, what is sought to be uploaded are relating to transactions which occurred prior to 27.12.2017 which are evidenced by records including transactions carried out through normal banking channels. It is these transactions which have already occurred prior to the introduction of GST regime which are sought to be filed by uploading the Form in Tran- 1. More so because there is a new procedure which has been prescribed and new methodology which has been adopted for the assessment etc., an assessee cannot be deprived of any input credit that he may be entitled to only on account of non-uploading of a particular form. Needless to say procedure and formalities are handmaiden of Justice, it would be required that the tax authority provide adequate opportunity to the assesses, since it is on account of the existence of the said assessee that the tax department is functioning. If the assessee is deprived of benefits on such technical grounds, there would be no purpose in having the tax system, which would result in the assessee trying to evade taxes.

12. Be that as it may, what is sought for by the assessee herein is for an opportunity to upload Tran 1 form containing the details of the transaction conducted by the Assessee prior to 27.12.2017, the filing of the form by itself would not entitle the assessee for any particular credit input or otherwise, the same would always be subject to scrutiny by the authority and if there are any false information found in the information which is uploaded by way of the above forms, the authorities have necessary powers under the Act to deal with the same.  

13. In view of the above, there would be no requirement for issuance of Certiorari to quash Sub-Rule 1A to Rule 117 of CGST or Rule 17 inserted by notification No.48 or the circulars issued as sought for in prayer A, B, C and D. A Certiorari is however issued quashing the decision of respondent No.3 in not granting petitioner another opportunity to file TRAN – 1 in terms of Annexure-B. A mandamus is issued directing the respondent authorities to open the portal to enable the petitioner to upload the necessary forms, if the portal cannot be opened to permit the assesse to file hard copies of the said form and act thereon. It is needless to say that the authorities have the necessary powers to verify the details uploaded.