Page 107 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] BRAND EQUITY TREATIES LTD. v. UNION OF INDIA 25
conclusion that there is no technical glitch as per their GST system laws, as there
is no information stored/logged that would indicate that the taxpayers attempt-
ed to save/submit the filing of Form GST TRAN-1. Thus, the phrase “technical
difficulty” is being given a restrictive meaning which is supplied by the GST sys-
tem logs. Conscious of the circumstances that are prevailing, we feel that taxpay-
ers cannot be robbed of their valuable rights on an unreasonable and unfounded
basis of them not having filed TRAN-1 Form within 90 days, when civil rights
can be enforced within a period of three years from the date of commencement of
limitation under the Limitation Act, 1963.
19. The introduction of sub-rule (1A) in Rule 117 is a patchwork solu-
tion that does not recognise the entirety of the situation. It sneaks in an excep-
tion, without addressing situations taken note of by us. This exception, as word-
ed, is an artificial construction of technical difficulties, limiting it to those existing
on the common portal. It is unfair to create this distinction and restrict it to tech-
nical snags alone. In our view, there could be various different types of technical
difficulties occurring on the common portal which may not be solely on account
of the failure to upload the form. The access to the GST portal could be hindered
for myriad reasons, sometimes not resulting in the creation of a GST log-in rec-
ord. Further, the difficulties may also be offline, as a result of several other re-
strictive factors. It would be an erroneous approach to attach undue importance
to the concept of “technical glitch” only to that which occurs on the GST Com-
mon portal, as a pre-condition, for an assessee/taxpayer to be granted the benefit
of sub-rule (1A) of Rule 117. The purpose for which sub-rule (1A) to Rule 117 has
been introduced has to be understood in the right perspective by focusing on the
purpose which it is intended to serve. The purpose was to save and protect the
rights of taxpayers to avail of the Cenvat credit lying in their account. That objec-
tive should also serve other taxpayers, such as the petitioners. The approach of
the Government should be fair and reasonable. It cannot be arbitrary or discrim-
inatory, if it has to pass the muster of Article 14 of the Constitution. The govern-
ment cannot turn a blind eye, as if there were no errors on the GSTN portal. It
cannot adopt different yardsticks while evaluating the conduct of the taxpayers,
and its own conduct, acts and omissions. The extremely narrow interpretation
that the respondents seek to advance, of the concept of “technical difficulties”, in
order to avail the benefit of sub-rule (1A), is contrary to the statutory mechanism
built in the transitory provisions of the CGST Act. The legislature has recognized
such existing rights and has protected the same by allowing migration thereof in
the new regime under the aforesaid provision. In order to avail the benefit, no
restriction has been put under any provisions of the Act in terms of the time pe-
riod for transition. The time limit prescribed for availing the input tax credit with
respect to the purchase of goods and services made in the pre-GST regime, can-
not be discriminatory and unreasonable. There has to be a rationale forthcoming
and, in absence thereof, it would be violative of Article 14 of the Constitution.
Further, we are also of the view that the Cenvat credit which stood accrued and
vested is the property of the assessee, and is a constitutional right under Article
300A of the Constitution. The same cannot be taken away merely by way of del-
egated legislation by framing rules, without there being any overarching provi-
sion in the GST Act. We have, in our judgment in A.B. Pal Electricals (supra) em-
phasized that the credit standing in favour of the assessee is a vested property

GST LAW TIMES  2nd July 2020  107