Gujarat High Court
Indusind Media Communications Ltd vs Union Of India on 19 June, 2019
Author: J.B.Pardiwala
Bench: J.B.Pardiwala, A.C. Rao
C/SCA/14428/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14428 of 2018
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INDUSIND MEDIA COMMUNICATIONS LTD & 1 other(s)
Versus
UNION OF INDIA & 5 other(s)
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Appearance:
MR.PARTH CONTRACTOR(7150) for the Petitioner(s) No. 1,2
MR ANKIT SHAH(6371) for the Respondent(s) No. 1,2,3,4,5
NOTICE SERVED BY DS(5) for the Respondent(s) No. 6
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
and
HONOURABLE MR.JUSTICE A.C. RAO
Date : 19/06/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1 By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs:
"(a) Issue a writ, order or direction in the nature of mandamus directing the respondents to grant the benefit of Rs.5,21 crores to the petitioner no.2 which is not reflected in the electronic credit ledger for the State of Gujarat.
(b) Issue a writ, order or direction in the nature of mandamus directing the respondents to extend the time for filing of GSTR - 38 after the benefit of Rs. 5.21 crores is granted to the petitioner.
(c) Issue a writ, order or direction in the nature of mandamus directing the respondents to refrain from demanding payment of taxes under the Act, till the resolution of the issues raised by the petitioner by the respondents.
(d) Issue a writ, order or direction in the nature of prohibition directing the respondents to not impose / waive any late fee, interest and penalty on the petitioner for the delayed filing of GSTR 3B and GSTR - 1 for the Page 1 of 4 Downloaded on : Thu Dec 26 23:54:58 IST 2019 C/SCA/14428/2018 ORDER period commencing January 2018 till the transition credit is made available to the petitioner.
(e) Issue a writ in the nature of mandamus or any other appropriate writ or order or direction under Article 226 of the Constitution of India directing the respondents to allow the petitioners to avail input tax credit in respect of any invoice or debit note relating to financial year 201718 for the supply of goods or service or both by extending the due date of filing the return under Section 39 till such time the issues faced by the petitioners are resolved by the respondents.
(f) Issue any other appropriate writ or order as this Hon'ble Court may deem fit in the facts and circumstances of the present case.
(g) For any other and further reliefs that this Hon'ble Court may deem fit."
2 On 20th September 2018, this Court passed the following order:
"1. Petitioners have raised multiple grievances with respect to the implementation of GST. The main grievance of the petitioners is that the credit of the duties for the period prior to 01.07.2017 though reflected in the declaration filed by the petitioner no.1 in Tran1 form is not shown in the electronic credit ledger account. Due to this, the petitioners are unable to avail such credit. On account of this, after transfer of business from petitioner no.2 to petitioner no.1, such credits are not allowed to be transferred and availed by the transferee.
2. NOTICE, returnable on 11.10.2018. Direct service is permitted."
3 We take notice of the fact that identical petitions have been preferred in the High Court of Bombay and Delhi. We deem fit to quote the order passed by the High Court of Delhi dated 23rd January 2019 in the Writ Petition (C) No.8691 of 2018:
"1. At the outset, it was submitted that the petitioners have filed the TRAN1 in this case. Electronic credit ledger account is submitted only yesterday. Learned counsel for the petitioner submits that this development was consequent upon the Bombay High Court direction in W.P.(C) 2229/2018 Indusind Media Communications Ltd. vs. Union of India which had noticed the previous order of this Court, particularly the order dated 16.10.2018 and given further effect to it on account of its directions. A copy of the order of the Bombay High Court has been shown to the Page 2 of 4 Downloaded on : Thu Dec 26 23:54:58 IST 2019 C/SCA/14428/2018 ORDER Court. That order pertinently directs as follows: "7. In view of the above, the undisputed position before us is that the Petitioners are entitled to distribute the Input Credit available with it as on 1st July 2017 amongst its branches/locations. This distribution has not been possible on account of technical problems of the Respondents. Further the availment of input tax credit available on 1st July107 has to be done on or before 20th October 2018 in view of Section 16(4) of the Act. Thus, it is likely that the Petitioners may be deprived on the facility of the input tax credit available with it on 1st July 2017, if the same is not taken before 20th October 2018. It is to be noted that the Respondents have extended the time to the file TRANS1 and TRANS2, but no such extension has been granted to extend the time to file GSTR3B. Thus, in the above facts, pending the final disposal of the Petition (when these issues will be considered in greater depth), as the system is not accepting it, the Petitioners would manually file with the Respondents a copy of its revised TRANS1, ITC01 and also GSTR3B at Mumbai (in physical form).
8. On the basis of the revised TRANS1, ITC02 and the GSTR 3B at Mumbai (to be certified by the Commissioner at Mumbai), the petitioners will be entitled to take the credit reduced at Mumbai (Maharashtra) to its locations in Delhi, Gujarat and Karnataka subject to the satisfaction of the Commissioner having jurisdiction over those locations. We are not giving any directions to the Commissioners of Delhi, Gujarat and Karnataka as in terms of Section 25(4) of the Act each registered location/branch is a distinct person. Therefore, on the above basis of being distinct persons under the Act, they have in cases of Delhi locations and Karnataka location (as informed by Shri. Nankani, the learned Senior Counsel), the Petitioner has filed separate Petitions. Moreover, the Commissioners at separate locations/branches (except Mumbai) are not parties before us. Therefore, appropriate order from the jurisdictional Commissioners on the basis of the certificates issued by the Mumbai Commissionerate be obtained by the Petitioners locations/branches subject to the satisfaction of the concerned Commissioners in accordance with law."
2. In the light of the above, the Court is of the opinion that the authorities should take all expedious steps to ensure that the certificate is issued by the Bombay Commissionerate to enable further steps to be taken by the Commissionerate of Delhi, Karnataka and Gujarat. Since the first step towards distribution of the input credit claim is the certificate to be issued by the Bombay Commissionerate, the respondent shall pass Page 3 of 4 Downloaded on : Thu Dec 26 23:54:58 IST 2019 C/SCA/14428/2018 ORDER appropriate orders ensuring that the Bombay High Court's orders are respected and complied with utmost expedience.
3. Thereafter, other Commissionerates, especially Delhi Commissionerate, shall ensure that the verification is undertaken and completed within four weeks of the receipt of the orders.
4. List on 27th March, 2019."
4 In tune with the aforesaid order passed by the High Court of Delhi, we direct the Gujarat Commissionerate to verify the credit availed by the petitioner and issue a certificate in this regard. Let this exercise be undertaken and completed within four weeks of the receipt of this order.
5 Post the matter on 24th July 2019. Direct service is permitted.
(J. B. PARDIWALA, J) (A. C. RAO, J) CHANDRESH Page 4 of 4 Downloaded on : Thu Dec 26 23:54:58 IST 2019