Page 91 - GSTL_7th May 2020_Vol 36_Part 1

2020 ] NELCO LTD. v. UNION OF INDIA 49
55. The Petitioner has placed on record the Concept Notes and Flyers
issued by C.B.E. & C. to demonstrate the salient features of GST and how the in-
put tax credit is a core of the GST regime. Based on this material and the state-
ments and objects and reasons of the Act, it is contended that a transitional pro-
vision is for a smooth transition of existing taxpayers to GST regime and it is to
avoid cascading effect of the taxes. The statements and objects of the Act cannot,
of course, be debated, but nowhere there any indication that for availing of input
tax credit in a transitional provision there is no time-limit. The decision of the
Supreme Court in Sambhaji v. Gangabai [2009 (240) E.L.T. 161 (S.C.)], the decision
of the Allahabad High Court in Global Sugar Ltd. v. Commissioner of Central Excise
[2016 (334) E.L.T. 604 (All.)] and the decision of the Madras High Court in Hospi-
ra Health Care India P. Ltd. v. Dev. Commr., MEPZ SEZ & Heous, Chennai [2016
(340) E.L.T. 668 (Mad.)] relied upon by the Petitioners are all the cases, as rightly
pointed out by the Respondents are within a tax regime. None of these decisions
deal with transitional provisions between two tax regimes.
56. Reference is already made to Section 16(4) of the Act. Section 16(4)
provides that a registered person shall not be entitled to take input tax credit in
respect of any invoice or debit note for the supply of goods or services or both,
after the due date of furnishing of the Return under Section 39 for the month of
September following the end of the financial year to which such invoice or in-
voice relating to such debit note pertains or furnishing of the relevant annual
return, whichever is earlier. Thus even under the GST law, the input tax credit
cannot be availed without any time-limit. It cannot be that under the GST law,
there is a time-limit, but for the transitional period, there is no such time-limit.
Once under the GST law for future transactions time-limit is stipulated, then
there is nothing unreasonable in the stipulated time-limit for the transitional pe-
riod.
57. Various decisions of the High Courts have been cited by the Peti-
tioner regarding Rule 117 and Section 140 of the Act wherein directions have
been issued in writ jurisdiction for opening the TRAN-1 Form. These are Jakap
Metind Pvt. Ltd. v. Union of India through the Secretary and Ors. [Special Civil Ap-
plication 19951] [2019 (31) G.S.T.L. 422 (Guj.)]. Aadinath Industries v. Union of India
[2019-VIL-526-DEL = 2019 (30) G.S.T.L. 478 (Del.)], Adfert Technologies Pvt. Ltd. v.
Union of India 2019-VIL-537-P&H = 2020 (32) G.S.T.L. 726 (P & H), Afran Technol-
ogy Pvt. Ltd., Asiad Paints Ltd. v. Union of India [2019-VIL-598 KAR = 2020 (34)
G.S.T.L. 50 (Kar.)], Gillette India Limited v. Union of India [2020-VIL-01-DEL], Jakap
Metind Pvt. Ltd. v. Union of India [2019-VIL-556-GUJ = 2019 (31) G.S.T.L. 422
(Guj.)], Jay Bee Industries v. M/s. J.B. Industries v. Union of India [2019-VIL-570-HP
= 2020 (32) G.S.T.L. 719 (H.P.)], A.F. Babu v. Union of India [2019-VIL-610-KER],
Tara Exports v. The Union of India [2019-VIL-432-MAD = 2019 (20) G.S.T.L. 321
(Mad.)], Siddharth Enterprises v. The Nodal Office [2019-VIL-442-GUJ = 2019 (29)
G.S.T.L. 664 (Guj.)], Ra Export Siddhartha Enterprise, Triveni Needdles Pvt. Ltd. v.
Union of India [2019-VIL-618-DEL], Bhargava Motors v. Union of India & Ors. [2019-
VIL-218-DEL = 2019 (26) G.S.T.L. 164 (Del.)] - WP (C) 1280/2018, dated
13-5-2019, M/s. Blue Bird Pure Pvt. Ltd. v. Union of India [2019 (7) TMI 1102 - 2019-
VIL-347-DEL = 2019 (29) G.S.T.L. 660 (Del.)]. The decision in the case of Adfert
Technologies of the Division Bench of Punjab and Haryana High Court relied by
the Petitioner was one wherein direction was issued to permit the revision of

GST LAW TIMES  7th May 2020  91