Page 19 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] INDEX - 2nd July, 2020 xvii
Input Service credit admissible on internet services, mobile phone services,
tata sky D2H services, etc., exclusively provided for employees at
residential quarters for consideration - See under CENVAT CREDIT ...... 70
Input service rebate on export of goods admissible in respect of CA services
- See under EXPORT REBATE ........................... 101
Input Tax Credit (ITC) - Interim stay not granted on challenge to vires of
Section 54(3) of CGST Act, 2017 - See under REFUND/REFUND CLAIM .... 3
— Transitional credit - Section 140(1) of Central Goods and Services Tax Act,
2017 categorical stating that registered person “shall be entitled to take, in
his electronic credit ledger…” - Limitation on right to carry forward
Cenvat credit substantively provided by proviso to said section are only
limitation on statutory right to carry forward credit — Brand Equity Treaties
Ltd. v. Union of India (Del.) ................................ 10
— Transitional credit - Time-limit to avail credit - Technical glitches in GSTN
- Sub-rule (1A) of Rule 117 of Central Goods and Services Tax Rules, 2017
restricting date for submission of Form GST TRAN-1 only till 31st March,
2019 - And only to registered persons who could submit declaration by
due date on account of “technical difficulties” on common portal -
Petitioners either, not been vigilant of timelines, or been victims of the
chaos and confusion that was prevailing at time during introduction of
GST regime - Petitioners not having concrete evidence in to convincingly
exhibit that they faced a technical issue on GSTN portal while uploading
the declaration in GST TRAN-1 - Artificial construction of “technical
difficulties”, limiting it to those existing on common portal creating
unfair distinction and restrict it to technical snags alone - Taxpayers
cannot be robbed of valuable rights on unreasonable and unfounded
basis of them not having filed GST TRAN-1 Form within 90 days, when
civil rights can be enforced within period of three years from date of
commencement of limitation under Limitation Act, 1963 - Time-limit
prescribed for availing input tax credit with respect to purchase of goods
and services made in the pre-GST regime, cannot be discriminatory and
unreasonable - Cenvat credit which stood accrued and vested was
property of assessee and constitutional right - Same cannot be taken
away merely by way of delegated legislation by framing rules, without
there being any overarching provision in Act - Rule 117 ibid, whereby
mechanism for availing credits been prescribed, is procedural and
directory, and cannot affect substantive right of registered taxpayer to
avail of existing/accrued and vested Cenvat credit - Procedure could not
run contrary to substantive right vested under sub-section (1) of Section
140 of Central Goods and Services Tax Act, 2017 - In absence of any
consequence being provided under Section 140 ibid to delayed filing of
Form TRAN-1, Rule 117 ibid to be read and understood as directory and
not mandatory - Rule 117 as being directory in nature, insofar as it
prescribes the time-limit for transitioning of credit - And not result in
forfeiture of the rights, in case the credit not availed within period
prescribed - However, it cannot be taken in perpetuity - In terms of
residuary provisions of Limitation Act, 1963, period of three years should
be guiding principle and thus a period of three years from appointed
date would be maximum period for availing of such credit - On facts
since all Petitioners filed or attempted to file Form TRAN-1 within
aforesaid period of three years they shall be entitled to avail ITC accruing
to them - Direction to Authorities to publicise this judgment widely
GST LAW TIMES  2nd July 2020  19