Page 22 - GSTL_20th August 2020_Vol 39_Part 3

J54 GST LAW TIMES [ Vol. 39
In spite of these extensions, assessees, in general, were not able to file TRAN-1 be-
cause of the continued system glitches. Therefore, a number of petitions were filed
in various High Courts.
The High Courts in most of the cases, without holding Rule 117 of CGST
Rules to be ultra vires or invalid, allowed the petitions with the direction to GSTN
to open its portal or in the alternative allowed the assessees to file hard copies of
TRAN-1 manually. Few references are as follows :-
• SARE Realty Projects Pvt. Limited v. Union of India - W.P. (C) No. 1300
of 2018;
• Bhargava Motors v. Union of India - W.P. (C) No. 1280 of 2019 [2019
(26) G.S.T.L. 164 (Del.)];
• Kusum Enterprises Pvt. Limited v. Union of India - W.P. (C) No. 7423 of
2019 (Del.);
Though most of the High Courts gave the decision in favour of taxpayer, few High
Courts have favoured the Department. The Bombay High Court took a contrary
view holding that Transitional Credit is only a concession and not a right in
NELCO Limited v. UOI & Ors. - W.P. (C) No. 6998 of 2018 [2020 (36) G.S.T.L. 24
(Bom.)]. Similarly, Rajasthan High Court dismissed the petition in Shree Motors v.
UOI - CWP No. 440 of 2020 [2020 (35) G.S.T.L. 375 (Raj.)] as the petitioners could
not show proof that they had attempted to file TRAN-1 but could not do so be-
cause of system glitches.
2. Delhi High Court order passed in rem
In the lead case of “Brand Equity Treaties Limited and Others v. Union of In-
dia” [2020 (38) G.S.T.L. 10 (Del.)], Delhi High Court passed an order in rem giving
relief to all taxpayers who had filed or attempted to file form TRAN-1 within the
period of three years of GST. The respondents, i.e., Union of India, were directed
to publicize this judgment widely including by way of publishing them on their
website so that others who may not have been able to file TRAN-1 are permitted
to do so on or before 30-6-2020.
The respondents were told to open the online portal or to accept the
same manually.
3. Retrospective Amendment in Section 140 of the CGST Act :
• Under these circumstances, GST Authorities have made a remarka-
ble amendment in Section 140 of CGST Act by inserting the TIME
phenomenon to ensure the maximum time-limit for availing the
TRAN-1 Credit. This is done by way of giving retrospective effect
from 1-7-2017.
[Notification No. 43/2020-C.T., dated 16-5-2020 (coming to force on
18-5-2020)]
• By this retrospective amendment the words “within such time”
which were earlier not there have been added in sub-sections of Sec-
tion 140.
• This empowers GST Authorities to specify the time within which
Form GST TRAN-1 needs to be filed for claiming the transitional
credit under GST law.

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