Page 95 - GSTL_7th May 2020_Vol 36_Part 1

2020 ] NELCO LTD. v. UNION OF INDIA 53
Since the phrase “technical difficulty” does not envisage any other difficulties,
the IT Grievance Redressal Committee rightly evolved the criteria of system logs.
The system log is an auto-generated data which records the activities performed.
A system log maintained by the portal shows details of requests made at the
page. This data is not manually collected but auto-generated. From the system
log, it can be ascertained whether an attempt was made to access the data. There-
fore, not only there is nothing arbitrary insisting on system log but a correct cri-
terion to be adopted.
69. Petitioner then contended that insisting on system log as proof from
the very system which has technical difficulties, is arbitrary and unworkable.
There is no merit in this contention. It is not the case that common portal had
stopped working or that none of the taxpayers could submit the declarations. As
per the data given by the Respondents, thousands of registered users could sub-
mit their TRAN-1 Form declarations. In the affidavit-in-reply filed by the Com-
missioner, the number of entries made between the last four days of the closing
facility of TRAN-1 has been placed on record. These are : 24 December, 2017 -
36349; 25 December, 2017 - 97939; 26 December, 2017 - 233455 and on 27 Decem-
ber, 2017 - 165723. The object of bringing in Rule 117(1A) did acknowledge that
certain registered user encountered technical difficulties in the common portal.
However, it does not mean that the common portal had stopped working; only
that some registered users could not submit their forms. Whether they made an
effect could be seen from the system logs?
70. There would be some who never attempted to submit the TRAN-1
Form. There would be some who attempted but encountered difficulties at their
end. There would some who encountered difficulties on the common portal.
Since it is the only third category covered by Rule 117(1A), it had to be asserted
from the system log of the common portal itself. Insisting on system log as proof
of technical difficulties, thus, is neither arbitrary. The Respondents have pointed
out that the cases where there were technical difficulties on the common portal as
seen from the system log, recommendations have been made in their favour. It is
also pointed out that many taxpayers did not file their applications until the last
minute. It has been tried to be suggested that filing of TRAN-1 Form was delib-
erately delayed by some to create fake invoices.
71. Petitioner contended that the categorization based on system log
amounts to a fettering of discretion. There is no merit in this submission. The
categorization made by the Cell is not fettering the discretion but involving rules
of evidence to determine whether a registered user encountered difficulties while
submitting forms on the common portal. It is only if the registered user encoun-
tered technical difficulties on the common portal, that Rule 117(1A) comes into
play.
72. In some decisions referred to in para 57, the Courts have directed
the Respondents to open the portal. It is observed therein that many of the regis-
tered persons come from a rural and semi-literate background and they may
have no record, and they cannot be made to suffer when the systems of the Re-
spondents were not efficient. This approach proceeds on the basis that once there
is an acknowledgment of technical difficulties, a liberal view must be taken.
However, though the Respondents have accepted there have been technical diffi-
culties, they have not admitted a complete failure. A mechanism has been set up.
GST LAW TIMES  7th May 2020  95