Heard Ms. M L Gope, learned counsel for the petitioner. Also heard Mr. B Choudhury, learned counsel for the respondents in the Taxation and Finance Department of the Government of Assam.
2. The petitioner M/S Rockland Media & Communication Pvt. Ltd. is an assesse under the GST bearing registration number 18AADCR5052M1Z2. The petitioner instituted WP(C) No. 4828/2021 raising a grievance that they could not undertake the Tran-1 and Tran-2 transactions as because the GST portal was closed in the meantime. The issue as regards the closure of the GST portal and the resultant inability of the GST assesses to further the Tran-1 and Tran-2 transactions also came up before the Supreme Court in the Union of India & another v. Filco Trade Centre Pvt. Ltd. & another bearing Special Leave to Appeal No. 32709-32710/2018. In Special Leave to Appeal No. 32709-32710/2018, the Supreme Court passed the order dated 22.07.2022 wherein the following as extracted were provided:
“1. Goods and Service Tax Network (GSTN) is directed to open common portal for filling concerned forms for availing Transitional Credit through TRAN-1 and TRAN-2 for two months i.e. w.e.f. 01.09.2022 to 31.10.2022.
2. Considering the judgments of the High Courts on the then prevailing peculiar circumstances, any aggrieved registered assessee is directed to file the relevant form or revise the already filed form irrespective of whether the taxpayer has filed writ petition before the High Court or whether the case of the taxpayer has been decided by Information Technology Grievance Redressal Committee (ITGRC).
3. GSTN has to ensure that there are no technical glitch during the said time.
4. The concerned officers are given 90 days thereafter to verify the veracity of the claim/transitional credit and pass appropriate orders thereon on merits after granting appropriate reasonable opportunity to the parties concerned.
5. Thereafter, the allowed Transitional credit is to be reflected in the Electronic Credit Ledger.
6. If required GST Council may also issue appropriate guidelines to the field formations in scrutinizing the claims.”
3. As the reliefs sought for by the writ petitioner in WP(C) No. 4828/2021 was also covered by the aforesaid directions of the Supreme Court in Special Leave to Appeal No. 32709-32710/2018, the order dated 23.11.2022 was passed by providing that the benefits provided by the Supreme Court in its order dated 22.07.2022 in Filco Trade Centre Pvt. Ltd. (supra) be also applicable in respect of the writ petitioner in the said writ petition.
4. In the meantime the authorities in the Government of India, Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs had issued a Circular No. 180/12/2022-GST dated 09.09.2022 providing for the aforesaid directions that were given by the Supreme Court in Special Leave to Appeal No. 32709-32710/2018. The order dated 23.11.2022 in WP(C) No. 4828/2021 also refers to the Circular dated 09.09.2022 by providing that the provisions thereof be also applicable in respect of the writ petitioner in the said writ petition.
5. Ordinarily, the difficulty of the petitioner would have been settled by the order dated 23.11.2022 in WP(C) No. 4828/2021 but in the meantime, the GST registration number of the petitioner was cancelled as because the respondents in the Finance and Taxation Department were of the view that the petitioner had not filed the returns and not paid the GST dues.
6. If the petitioner had not filed the returns and paid the GST dues, we see no infirmity in the decision of the authorities in the Finance and Taxation Department to cancel the GST registration of the petitioner. But however, in the instant case, the petitioner assessee has made a statement that they are willing to file all the required returns as well as pay all the dues as may be assessed by the Finance and Taxation Department of the Government of Assam. In this respect we refer to one of our earlier order in WP(C) No. 6621/2022 in Mayflower Hotel and Resorts LLP v. the Principal Commissioner and State Goods and Service Tax & ors. wherein in a circumstance where the GST registration was cancelled for non-submission of returns and non-payment of dues, it was provided that the assessee and the department will sit together where the department will inform the assessee as to what is the exact amount of due tax as well as the interest that the assessee may be required to pay on such non-payment of taxes as well as penalty, if any, under the law and the quantified amount would be paid by the assessee to the department and upon it being paid, the department will restore back the registration either in the form of the earlier registration or by providing a new registration number.
7. In the instant case, as because we have already taken note that the petitioner assessee is willing to do all the needful as required by the respondent Department i.e. whatever taxes be assessed will be paid by the petitioner and if interest thereupon will be levied, the same be also paid as well as the penalty, if any, under the law.
8. But the difficult situation is that for doing so, the petitioner assessee is also required to operate the portal and further the Tran-1 and Tran-2 transactions.
9. To mitigate the situation, we provide that once the representative of the petitioner will be before the Superintendent of Goods and Services Tax, Guwahati, the Superintendent of Goods and Services Tax will inform the petitioner the total amount of taxes they are required to be paid including the interest and penalty and the petitioner will give a written undertaking in an indemnity bond to the Superintendent of Goods and Services Tax that they are willing to pay the amount. Upon the undertaking as afore-stated being given, it will be deemed before the authorities in the Taxation and Finance Department that the petitioner had paid the tax amount and accordingly, be allowed to operate the portal for the purpose of furthering the Tran-1 and Tran-2 transactions.
10. In doing so, if any Cenvat Credit is due to the petitioner and if under the law the petitioner can utilize such Cenvat Credit for payment of any of the tax dues, the petitioner be allowed to use the Cenvat Credit for the limited purpose of making the payment of actual tax amount due from the petitioner. If any further amount is required to be paid towards the component of interest or penalty if made applicable, the same shall be paid by the petitioner in the form of cash or not in the form of Cenvat Credit.
10. This order is passed in a situation of urgency inasmuch as if all the aforesaid acts and transactions are not done before 30.11.2022 when the portal will be closed, once again the whole purpose of the petitioner will be frustrated.
11. Accordingly, the petitioner to initiate and agree with any amount as may be assessed by the Department as regards the tax, interest and penalty, if any, and pay the same as indicated above and later on, if the petitioner is of the view that there was any over assessment, the petitioner will be at liberty to file appropriate application.
12. Because of the urgent situation in the matter, the representative of the petitioner to be present before the Superintendent of Goods and Services Tax, Guwahati, sharply at 10.00 AM on 29.11.2022 so that the requirement of this order can be carried forward. If the representative of the petitioner does not appear, no further requirement remains. Writ petition stands disposed of in the above terms.