Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 750 (GUJ)

Camway Concepts v. Union of India

2024-04-04

BHARGAV D.KARIA, NIRAL R.MEHTA

body2024
ORDER : Bhargav D. Karia, J. 1. Learned advocate Mr.Sanket Gupta for learned advocate Mr.Anand Nainawati for the petitioner, has tendered draft amendment. The same is allowed in terms of the draft. To be carried out immediately. 2. By way of this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs. ORDER : Bhargav D. Karia, J. 1. Learned advocate Mr.Sanket Gupta for learned advocate Mr.Anand Nainawati for the petitioner, has tendered draft amendment. The same is allowed in terms of the draft. To be carried out immediately. 2. By way of this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs. “(i) Issue a writ of Mandamus or a writ in the nature of Mandamus or a writ in the nature of Certiorari, or any other appropriate writ, order or direction, under Article 226 of the Constitution of India directing the Respondents to forthwith activate the GSTIN 24AADHC3412R1ZC of the Petitioners w.e.f. 01.07.2017 and grant final certificate of registration to the Petitioners from 01.07.2017 and appropriating the GST paid and returns filed by the Petitioners under the current GSTIN thereunder, or (ii) Issue a writ of Mandamus or a writ in the nature of Mandamus or a writ in the nature of Certiorari, or any other appropriate writ, order or direction, under Article 226 of the Constitution of India directing the Respondents to allow the Petitioners to file returns, avail input tax credit and pay applicable tax under currently active GSTIN 24AADHC3412R2ZB for the period from July 2017 to March 2018, or (iia) That this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or a writ in the nature of Certiorari, or any other appropriate writ, order or direction, under Article 226 of the Constitution of India directing the Respondents to allow the Petitioners to file returns for the period from July 2017 to March 2018, avail and utilize input tax credit for the said period and pay applicable tax in accordance with law under the currently active GSTIN 24AADHC3412R2ZB; (iii) Issue a writ of Mandamus or a writ in the nature of Mandamus or a writ in the nature of Certiorari, or any other appropriate writ, order or direction, under Article 226 of the Constitution of India directing the Respondents to allow the Petitioners to file returns, avail input tax credit and pay applicable tax for the period from July 2017 till March 2018 by activating the GSTIN 24AADHC3412R3ZA with effect from 01.07.2017 and also appropriating the GST paid and returns filed by the Petitioners under the current GSTIN ie., 24AADHC3412R2ZB thereunder, and (iv) Issue a writ of Mandamus or a writ in the nature of Mandamus or a writ in the nature of Certiorari, or any other appropriate writ, order or direction, under Article 226 of the Constitution of India restraining the respondents from imposing any late fee or penalty under the GST Acts for non-filing/late filing of returns by the Petitioners under the GST Acts because of non-completion of migration process of the Petitioners; 3. Brief facts of the case are as under. 3.1 The Petitioner is engaged in the supply of ZENON system/machinery on sale/collection of usage charges to various sugar producing industries in the name and style of Camway Concepts since last many years as a proprietary concern of Chetan Kishorchandra Jobanputra HUF. The petitioner has taken over the said business as a going concern from a partnership firm viz. Shri Mahalaxmi Enterprises, which was registered with the VAT Department under the Gujarat Value Added Tax Act, 2003 vide Registration No.24223901256. 3.2 The Petitioner intimated the VAT Department about the said change in the constitution of the firm. Accordingly, the VAT Department issued an amended registration certificate to the Petitioner. 3.3 It is submitted that with effect from 01st July, 2017 the GST regime has been implemented. The VAT registration of the Petitioner was auto-migrated in GST and they were allotted provisional GSTIN 24ABNFS1856N1ZK in respect of the TIN 242223901256. 3.4 However, due to some technical error, the provisional GSTIN allotted to the Petitioner on migration of data from VAT to GSTIN, was linked with the PAN ABNFS1856N of the partnership firm viz. Shri Mahalakshmi Enterprises instead of linking with the PAN AADHC3412R of the Proprietor of the Petitioner i.e. Chetan Kishorchandra Jobanputra HUF. 3.5 Learned advocate for the petitioner submitted that the migration process could not be completed on the GSTN due to mismatch of PAN and the provisional GSTIN issued to the Petitioners was thus suo-moto cancelled. 3.6 Thereafter, the VAT Department issued another GSTIN 24AADHC3412R1ZC to the Petitioner in respect of TIN 24223901256. This GSTIN was also suo-moto cancelled with effect from 18th January, 2017 as per the data reflected on the GSTN. 3.7 Learned advocate for the petitioner submitted that since the migration process was closed, the Petitioner obtained new GSTIN 24AADHC3412R2ZB on 05th April, 2018 and since April, 2018, returns are being filed by the Petitioner on this number and the returns for the previous period i.e. July, 2017 til March, 2018 are not filed by the Petitioner as the portal does not allow filing of returns for the period before the registration date. 3.8 Learned advocate further submitted that pursuant to obtaining the new GSTIN, the Petitioner inquired with the SGST Department about the cancellation of the first and second provisional GSTIN and the Petitioner was informed that GSTIN 24ABNFS1856N1ZK was cancelled as its migration process was not completed due to mismatch of PAN and GSTIN 24AADHC3412R1ZC was cancelled on account of alleged non-filing of returns. The Petitioner, therefore, submitted a detailed request to the State Tax Officer, Unit- 12, Surat vide letter dated 13th November, 2018 along with the relevant documents. 3.9 Learned advocate for the petitioner submitted that the Petitioner requested the officer to take the aforesaid details on record and reactivate the Second Provisional GSTIN 24AADHC3412R1ZC so that the Petitioner could file returns pertaining to the period from July, 2017 to March, 2018 as the same is issued for PAN AADHC3412R of proprietor Chetan Kishorchandra Jobanputra HUF and reflects correct PAN. However, as per the say of the learned advocate for the petitioner, nothing has been done till date and no correspondence has been received from the concerned officer in this regard. 3.10 In the meantime, the Government allowed assesses who had not completed migration process to complete the same vide Notification No.67/2018-Central Tax dated 31st December, 2018 read with Notification No.31/2018-Central Tax dated 06th August, 2018 and therefore, the Petitioner submitted required documents and application for completing migration of the First GSTIN vide letter dated 21st January, 2019 to the Nodal Officer, State Tax Officer, Surat. 3.11 The Petitioner also forwarded the said application on the e-mail ID dc-17-sur2- gstn@gujarat.gov.in as provided by the Nodal Officer, vide e-mail dated 23rd January, 2019. Subsequently, the Nodal Officer suggested the Petitioner to re-send the aforesaid e-mail with detailed reasons for not completing the migration. The petitioner, therefore, resubmitted its application on e-mail ID dc-17- sur2-gstn@gujarat.gov.in vide e-mail dated 30th January, 2019. 3.12 Learned advocate for the petitioner next submitted that thereafter the Petitioner visited the office of the Nodal Officer on more than one occasions to inquire about the position of their request to complete migration, but were informed that they have forwarded said application to EDP Department and hence, now they cannot do anything. 3.12 Learned advocate for the petitioner next submitted that thereafter the Petitioner visited the office of the Nodal Officer on more than one occasions to inquire about the position of their request to complete migration, but were informed that they have forwarded said application to EDP Department and hence, now they cannot do anything. The Petitioner was informed that they need to contact EDP Department, which they did on more than one occasions, but each time they were informed that the application has been forwarded to the GSTN and now they cannot do anything. 3.13 Learned advocate submitted that the Petitioner also visited the office of the Range Officer but were informed that since GSTN has not allotted either of the GSTINs, they are not in a position to do anything to help the Petitioners. It is submitted that on 11th April, 2019 the Petitioner wrote to various authorities including Help Desk, CBEC Mitra, GST Council Secretariat regarding their migration process and not being able to file returns for Financial Year 2017-18. 3.14 Learned advocate for the petitioner submitted that as there has been no communication from the Migration Department and no action has been taken to resolve the issue of the petitioner, and since the grievance of the petitioner has not been redressed by the respondents till date due to which the legitimate input tax credit cannot be availed by the petitioner and output tax liability cannot be discharged by the petitioner for the period from July, 2018 till March, 2018, the petitioner has approached this Court by filing the present petition. 4. Learned advocate Mr.Nainawati for the petitioner submitted that because of technical glitch, PAN Number of the earlier partnership firm was shown as PAN number of the proprietorship concern and accordingly, there was mismatch of the PAN. It was submitted that the petitioner could not activate the PAN because of such technical glitch. Therefore, the petitioner applied for new GSTN number which was also became inactive. The petitioner, thereafter, applied for another GSTN number which was in active operation and the petitioner is regularly filing returns under the provisions of the Goods & Service Tax Act under the said GST number. Therefore, the petitioner applied for new GSTN number which was also became inactive. The petitioner, thereafter, applied for another GSTN number which was in active operation and the petitioner is regularly filing returns under the provisions of the Goods & Service Tax Act under the said GST number. It was, therefore, submitted that the petitioner is required to pay amount of GST as the petitioner was not able to avail benefit of I.T.C. from 01st July, 2017 till the second GST number was obtained in the year 2018. It was submitted that it was not the fault of the petitioner for not availing GSTN number and accordingly, the respondent authority may be directed to consider the prayer of the petitioner to activate the GST number which was granted in the year 2018 to be active mode with effect from 01st July, 2017. 5. On the other hand, learned Assistant Government Pleader Mr.Raj Tanna for respondent Nos.2 and 5 submitted that the petitioner ought not to have applied for another GST number and ought to have waited till the technical glitch is resolved by the Department. It was submitted that in fact the technical glitch was resolved and PAN number of the petitioner was mapped with the GST number allotted to the petitioner after the petitioner had availed fresh GST number in the year 2018. It was, therefore, submitted that the petitioner is not entitled to carry forward or avail the benefit of I.T.C. for the interregnum period as it was the fault of the petitioner to get the new GST number for the proprietorship concern of the petitioner. 5.1 Learned Assistant Government Pleader Mr. Tanna in support of his submissions, has made the following submissions. 5.1.1 When the original migration process of the petitioner in the name of Pan Card of Mahalaxmi Enterprise failed, they should not have generated the first GSTIN (which is inactive) on the Pan Card of Camway Concepts but could have waited for some time for resolving the issue as there were similar issues across the country of PAN Mismatch because the TIN number under VAT remains the same. 5.1.2 The submission of the petitioner that the first GSTIN (which is inactive) on the Pan Card of Camway Concepts was issued by the department cannot be so because the VAT department cannot issue a GSTIN unless it is generated by the petitioner himself on the portal, as the GSTIN is allotted by the GST Portal only. 5.1.3 The petitioner obtained second GSTIN (Which is active) on the Pan Card of Camway Concepts and it is active till date from which petitioner is doing business and filing returns with effect from 05th April, 2018. 5.1.4 When the petitioner obtained third GSTIN in terms of the Notification No.31/2018 and No.67/2018 (which is cancelled Suo Moto) which was given with effect from 01st June, 2019 and the said Notification was issued to resolve this types of issues only, then the petitioner could have used the said GSTIN permanently as it was mapped with 24ABNFS1856N1ZK (Original Provisional ID) and if the said GSTIN was active till today, then there would be a remedy available with the petitioner to approach this Hon'ble Court with a prayer to direct GSTIN to give registration with effect from 01st July, 2017 in terms of the Notification. 5.1.5 The petitioner choose not to file the returns on the third GSTIN and because of which the said third GSTIN was cancelled Suo Moto and even the petitioner did not preferred revocation or appeal against the same. 5.1.6 When the GSTIN, in terms of the availing benefit of Notification, raised the query and asked explanation regarding mismatch of PAN from (migration@gst.org.in) on 03rd June, 2019, the petitioner replied "Find enclosed herewith our email dated 11th April, 2019 in PDF format along with it's enclosures in zip format. Kindly go through the same which are self explanatory". The email dated 11th April, 2019 of which the petitioner is giving reference is not sent to (migration@gst.org.in). Therefore, the petitioner could have again reproduced the reasons and explanation in brief to (migration@gst.org.in). 5.1.7 The Jurisdictional VAT Department which would be applicable to petitioner is State Tax Officer, Ghatak 68, Surat which is not made as a party. The respondent No.5 vide letter dated 01st April, 2024 has called for details of petitioner from State Tax Officer, Ghatak 68, Surat. 5.1.7 The Jurisdictional VAT Department which would be applicable to petitioner is State Tax Officer, Ghatak 68, Surat which is not made as a party. The respondent No.5 vide letter dated 01st April, 2024 has called for details of petitioner from State Tax Officer, Ghatak 68, Surat. 5.1.8 The case of petitioner is that he wants to file return for the period of July, 2017 to March, 2018 as he wants to claim I.T.C. for the purchases he made in the interregnum period. It is even otherwise not relevant because for the period from July, 2017 to March, 2018, technically, there was no GSTIN of the petitioner and therefore, all the purchases made by petitioner in the said period would be as URD Purchases (Unregistered Dealer) and the credit of such purchase is even otherwise not available under GST Act either to supplier or recipient. 5.1.9 It is even not the case of the petitioner that he wants to carry forward VAT I.T.C. to GST. Even if it is presumed that he wants to carry forward the same, then the date to file TRAN-1 has already lapsed. 5.1.10 Lastly, learned Assistant Government Pleader submitted that the prayers which are prayed by the petitioner are technically not possible as the suppliers of the petitioner cannot rectify their filed returns of the Financial Year 2017-18. 6. Considering the above submissions and perusal of the facts on record, it appears that there is no fault on part of the petitioner for not being able to utilise the provisional GST number which was given to the petitioner on transition after the petitioner has taken over the business of the proprietorship concern. The GSTN Portal is required to map the PAN number of the petitioner with the GST number instead of PAN number of the partnership firm, which was not done and therefore, the petitioner was unable to utilise the input tax credit during the interregnum period for the goods purchased from 01st July, 2017 till March, 2018. The GSTN Portal is required to map the PAN number of the petitioner with the GST number instead of PAN number of the partnership firm, which was not done and therefore, the petitioner was unable to utilise the input tax credit during the interregnum period for the goods purchased from 01st July, 2017 till March, 2018. 6.1 The contentions raised on behalf of the respondent is, therefore, required to be considered in light of the facts of the case that there was no option for the petitioner but to obtain new PAN number for the proprietorship which was inactive and there was no question of filing GST Returns with regard to the GSTN which was allotted to the petitioner after mapping of PAN number as the petitioner had already obtained fresh GSTN number. Therefore, the only remedy which would be available to the respondent Department was to get the GST number which was obtained by the petitioner in the year 2018 to make it effective from 01st July, 2017 so as to enable the petitioner to get the input tax credit for the goods purchased during the interregnum period from 01st July, 2017 to March, 2018. 7. In such circumstances, without going into further details of the case, the respondent authorities are directed to activate the GST Number 24AADHC3412R2ZB with effect from 01st July, 2017 within a period of two weeks from the date of receipt of copy of this order. 8. With the aforesaid direction, the petition is disposed of. Notice stands discharged.