Failed to file TRANS-1
THOSE WHO FAILED TO FILE TRANS-1…..Any Remedy?
As we all are aware, with the introduction of GST in India a new regime of tax was initiated. And, for smooth transition from old tax regime to new GST regime government introduced some transitional provisions in GST law. Further, government also allowed to the tax payers to transfer their CERNAT credit of old tax regime into input tax credit of new GST regime.
Transitional Provision-Rule 117:
For this rule 117 was introduced under CGST Rules, 2017, which states that a registered person shall be entitled to take benefit of CENVAT credit balance as on 30th June, 2017 by filling form GST TRANS-1 within 90 days from the appointed date i.e. 1st July, 2017.
But the deadline for filling of TRANS-1, was extended several times so that tax payers would not get deprived of their eligible credit. On 1st January, 2020 vide notification no. 02/2020, last date of filling of form was fixed at 31st March, 2020. After which no further extension was announced by GST council. So this can be considered that those who have not filed TRANS-1 till 31st March, 2020 would not be able to take credit of CENVAT available in his account as on 30th June, 2017 and the same shall lapse.
Is there any Remedy available? Delhi High Court:
On 2nd March, 2020, 4 writ petitions were reserved in Delhi high court, to get the permission of availing the input by filling form TRANS-1 beyond 31st March, 2020. Further, rule 117 was called unconstitutional and voilative of article 14.
Four petitions were as follows:
1. By Brand Equity Treaties Limited:-
Petitioner claims that owing to dependence at group level in the context of tax compliances and multiple entities involved, petitioner was unable to file the declaration in Form TRAN-1 within the prescribed due date.
2. By Micromax Informatics Limited:-
Petitioner claimed that correct amount of CENVAT as claimed in last service tax return was not showing on the portal.
3. Developer Group India Private Limited:-
Petitioner claimed that first application for refund was declined and then transition return was also delayed due to some technical glitch.
4. Reliance Electric Works:-
In this case as well, petitioner contends that it had been trying to upload its claim for carrying forward the credit in form GST TRAN-1 but could not do so due to error in the system of the respondents.
Court while giving its decision on 5th May, 2020 said that rule 117 is directory in nature and it prescribe the time limit for transferring of credit and the same would not result in the forfeiture of right to avail credit in case it is not availed within prescribed time. In the absence of any specific provisions under the act, provisions under THE LIMITATION ACT i.e. period of 3 years should be the guiding principle and thus period of three years from the appointed date would be the maximum period for availing such credit.
Accordingly, since all the Petitioners have filed or attempted to file Form TRAN-1 within the aforesaid period of three years they shall be entitled to avail the Input Tax Credit accruing to them. They are thus, permitted to file relevant TRAN-1 Form on or before 30.06.2020. Respondents are directed to either open the online portal so as to enable the Petitioners to file declaration TRAN-1 electronically, or to accept the same manually. Respondents shall thereafter process the claims in accordance with law. We are also of the opinion that other taxpayers who are similarly situated should also be entitled to avail the benefit of this judgment. Therefore, Respondents are directed to publicise this judgment widely including by way of publishing the same on their website so that others who may not have been able to file TRAN-1 till date are permitted to do so on or before 30.06.2020.
One common factor among all the petitions was that all petitioners were unable to take the credit of input directly or indirectly due to some technical glitch. And the court has directed the department to publicise this judgement so that other people can also be grant eligible credit in case they were deprived of the benefit in similar circumstances.
So, this can be taken as a remedy for those who failed to file TRANS-1 till 31st March, 2020 due to some technical glitch or due to any other reasonable cause for act of such failure. They can approach the department and can file detail in respective form on or before 30th June, 2020.
Tags : GST
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