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2020 ] TRANSITIONAL CREDIT IF NOT CLAIMED IN TRAN-1, ARE THEY LOST FOREVER? J65
credits are reversed or not availed the fundamental rights under Articles 14,
19(1)(g) & 300A of the Constitution of India of a person are violated. The rule
[Northern India Caterers (Private) Ltc. v. State of Punjab, AIR 1967 SC 1581] of con-
struction states that if the co-existence of the two sets of provisions are destruc-
tive of the object with which the latter Act was passed, the Court would treat the
earlier provisions as impliedly repealed which is also supported by the instant
act [Section 174 of the CGST Act, 2017]. Thus, it means that transitional ITC
which is a property of every registered person would be repealed if not trans-
ferred which is against the Constitution of India [Article 300A of the Constitution
of India] which expressly states that no person shall be deprived of his property
by any authority of law.
Given the fact that GST is in “trial & error” phase, the registered persons
who wish to transit their credits should be given a reasonable time. Thus, in our
opinion imposing stringent timelines under such law is unreasonable ultimately
lead to deprivation of such ITC to such person. Reasonableness is an important
consequence of right of quality [Shanti Ranjan Paul v. Food Corpn. of India, 2011 (3)
ICC 98] which is violated in the instant case. Further, deprivation of ITC will
have direct impact on their business which will render them incapable to practice
their business which is a breach of right to freedom [UOI v. Adfert technologies
Pvt. Ltd., 2020 (34) G.S.T.L. J138 (S.C.)]. Therefore, in our opinion, it is a good case
that should be tested before the Court of law.
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